First Final Determination by the CCB is Hardly What the CASE Act Critics Predicted

Remember all the noise coming from anti-copyright groups leading up to passage of the CASE Act? According to the EFF, Public Knowledge, Fight for the Future, the usual assortment of anti-copyright academics, and Senator Ron Wyden, the copyright small claim alternative would open the floodgates for abusive claims. They predicted CASE would be the ideal venue for “copyright trolls,” and that it would be open season on Grandma for naively sharing memes on social media. (Not that there aren’t memes Grandma should be dissuaded from sharing. Oy!)

Granted, the Copyright Claims Board (CCB) has only been operating for about 8 months, but so far, not only have no grandmas been named respondents in claims (at least not in their capacity as grandmas), but the CCB is predictably nothing like the damage award processing center the critics described in their efforts to kill the initiative. On the contrary, about half of all claims to date have been rejected for non-compliance with the CCB (legal and administrative errors).* So, there is a bit of a learning curve to be smoothed out over time, but my point is that the CCB is hardly rubber-stamping demands for $30,000 as the fear-mongers projected during the legislative process.

But the main reason I wanted to post something today is that, interestingly enough, the first case to reach a final determination at the CCB resolved an issue that copyright critics have been complaining about forever—wrongful DMCA takedown. In July 2019, I wrote that the CASE critics did not want to mention the provision in the new law which allows a plaintiff to file a complaint for an allegedly wrongful DMCA takedown notice. Back then, I wrote . . .

Their favorite victims—the targets of misused DMCA takedown provision—will have an unprecedented remedy in the provisions of the CASE Act.  That’s right.  You might make a fair use of a work that is removed by DMCA; or have material taken down by a party misrepresenting itself as the rightsholder; or have commentary or parody removed for reasons that have nothing to do with copyright.  And now, instead of just being a statistic for the EFF to blog about, you can affordably pursue a claim against the party for misuse of DMCA via the CASE Act.  

Well, that’s exactly what happened in Michael Flores v. Michael Mitrakos, and the claimant won. No damages were sought, and the parties agreed to settle and dismiss further proceedings with a “Don’t do that again” determination, but the point is that a legit victim of wrongful takedown had a remedy at the CCB and used it. One would think the folks who’ve been screaming “DMCA takedown abuse!” for years would applaud this outcome—or at least maybe apologize for all the smack they talked about the CASE Act. But I think it’s gonna be crickets over there if the CCB actually produces good resolutions.

*NOTE: This was originally published with a slightly different stat which has been amended for better accuracy.

David Newhoff
David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

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