Reviewing the Basics of the CASE Act

This week, the Copyright Alternative in Small-Claim Enforcement (CASE Act) will very likely pass the House.  Like a quiet tidepool of bipartisanship in otherwise raging waters, congressional support for America’s entrepreneurial creators—photographers, illustrators, designers, musicians, authors, et al—is a matter about which both Republicans and Democrats agree.  And they have not been terribly receptive to the Big-Tech-funded arguments against this legislation for the simple reason that those arguments do not stand up to scrutiny.   

Nevertheless, some negative messaging continues to seep into the blogosphere; and the Senate version of the bill still has to pass.  So, I thought it would be worth providing a basic overview of what CASE IS and what CASE IS NOT.  

CASE IS a proposal to create a small-claim alternative to federal litigation for independent and small-business creators to protect and enforce their copyrights.  

CASE IS NOT a new, fast-tracked, or backdoor proposal.  The need for a small-claim option has been in discussion among copyright experts and independent creators for over a decade, and the legislative process for the current bills began in earnest approximately two years ago.

CASE IS an opportunity for new-media creators (e.g. YouTubers, ETSY merchants, budding digital artists) to remedy infringing uses of their works.  As online-only distribution has grown, so has unlicensed exploitation of these new forms of expression.  For all the new creators who have earned fans and revenue through online platforms, many have also discovered that their work is vulnerable to infringement just like any other rightsholder.  

CASE IS NOT an unconstitutional denial of due process.  The Copyright Claims Board (CCB), which will be convened at the U.S. Copyright Office, is a voluntary alternative dispute resolution option.  An alleged infringer (respondent) may opt out of the small claim tribunal, and the matter will be considered closed by the CCB. Voluntary alternatives to Article III proceedings are not held to be violations of due process rights.  

CASE IS an opportunity for an alleged infringer (respondent) to choose a much more affordable means to defend against a claim of infringement.  Thanks in large part to much of the rhetoric of the internet industry, many users of works are confused about licensing and fair use—and many conflicts simply do not belong in federal court.  So, whether a defendant is right, wrong, or somewhere in between, the Copyright Claims Board will be a more efficient, cost-effective path to a resolution.

CASE IS NOT a golden opportunity for copyright trolls.  Unlike Federal Court, the statute contains explicit anti-troll provisions.  Trolls make money by frightening people into settling (unmeritorious) federal claims for copyright infringement.  Unlike a court, however, the CCB imposes fines for misuse of its claims process, and the Register of Copyrights has the authority to review and restrict repeat users—and even deny them access to the CCB for multiple flimsy claims.  The math simply does not add up for the would-be troll.

CASE IS a means to take effective action against a party that may have wrongly targeted you with a DMCA takedown.  After years of alleging that takedown is chronically abused, it is curious that the anti-copyright groups have opposed CASE, which provides the first practical recourse for the average user to file a claim against an abuser of the DMCA.  

CASE IS NOT a Big Media proposal.  CASE antagonists have tried in a few instances to describe this legislation as the policy agenda of giant copyright holders like movie studios and recording companies.  But it is a matter of common sense to recognize that these multi-billion-dollar industries have little interest in a small claim provision, one way or another.   

CASE IS still a mild pain the butt for claimants.  A claimant needs to file a valid complaint, pay a filing fee, and take time away from his/her real work to do commence enforcement action.  Small-business-type copyright owners, by definition, do not have the resources to file a large volume of claims and, therefore, have very little incentive or ability to file frivolous claims.  They will naturally focus on commercial users and those infringements that directly threaten their livelihoods.   

CASE IS NOT a provision for rubber-stamping infringement claims.  Although the critics make it sound as though the CCB will be a damage-award processing center, that is not how things work in the real world.  By law, the board must review complaints for legal merit under the provisions of the copyright act, and they must also consider the same defenses (e.g. fair use) that any respondent may bring to an Article III court.  

CASE IS a proposed solution for claimants and respondents that alleviates the need to hire legal counsel or to travel to Washington, D.C. or any other venue.  “Appearances” are conducted online via video chat.  Counsel may be hired by either party at their own discretion, but the process is designed for non-attorney users.  

CASE IS NOT too complicated for “average users” to understand, if they should receive a claim against them.  Despite messages designed to frighten every internet user (i.e. everyone) into thinking they will need a law degree to know how to respond to a notice, it will actually be quite simple.  See flow-chart.  Nevertheless, if doubt persists, the recipient of a notice may simply opt-out of the proceeding, and that will be the end of it.  

CASE IS SERIOUSLY NOT a threat to the “normal” use of the internet.  It’s true that we share a lot of material online.  Yet, despite this, you can scroll a typical Twitter or Facebook feed for quite some time before encountering a post that even implicates copyright—let alone a post of substantive value like news or commentary.  Given the trillions of interactions per day, online activity will remain unaffected by the deliberations of the mortal humans adjudicating claims and responses at the Copyright Claims Board.  

CASE IS the first copyright provision in a very long time that restores enforcement power to the proverbial creator next door—those people for whom copyrighted works represent a middle-class living, but who have had to let countless significant infringements go because the cost of enforcement is just too high for their budgets.  Legislatively, it is a rare moment when David (the creators) gets to win over Goliath (the internet and tech industry).  And won’t that be nice for a change.


Flow chart by Graphics Arts Guild.

© 2019, David Newhoff. All rights reserved.

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