By: Kent Anderson, “The Geyser”
The most recent US Covid relief bill, signed into law on December 27, 2020, contains a surprising number of positive changes and new laws, many focused on anti-corruption.
Another thing that made its way in was the Copyright Alternative in Small-Claims Enforcement (CASE) Act, a bill approved by the House in 2019 and then stuck in a legislative logjam until it was spirited into the Covid relief bill.
Explained by Seth Davidson on JDSUPRA, the CASE Act:
. . . carried out a long-pending recommendation from the Copyright Office that copyright owners be given a streamlined, cost-efficient means of enforcing their rights without having to bring an action in federal court (which otherwise generally has exclusive jurisdiction over the copyright infringement claims).
The CCB will consist of three “Copyright Claims Officers” who will be appointed by the Librarian of Congress and will operate within the Copyright Office. The CCB will have jurisdiction over copyright infringement claims, claims seeking a declaration of noninfringement, certain claims arising under the notice and takedown provisions of the DMCA, and related defenses and counterclaims. Representation by counsel is not required to bring a case before the CCB and the amount of damages that the CCB can award in an infringement proceeding is capped at $30,000. Attorneys’ fees (up to $5,000) may be awarded upon a showing of bad faith conduct (with higher awards in “extraordinary” circumstances. The CASE Act also authorizes the Copyright Office to adopt regulations allowing a single Copyright Claims Officer to consider claims that do not exceed $5,000.
Explaining the challenges facing smaller copyright holders, Jeff Crouere writes in Townhall:
Currently, the nation operates on a “notice and takedown” system for infringement cases, but copyright owners have complained that this system should be called the “takedown and tape up” approach because the same offenders continue to re-post the material shortly after receiving infringement notifications.
[The CASE Act] will fix this problem by converting the “notice and takedown” approach to a new “notice and stay down” system. It will also give the Copyright Office the ability to revoke online providers’ liability safe harbors if they continue to allow IP theft on their platforms.
Along with illustrating a smart approach to modifying Section 230’s blanket protections, the CASE Act seems perfectly timed, as platforms like Substack, podcasts, and various video platforms — from TikTok to YouTube — are all making it easier for independent creators to generate original, copyrighted content. It also fits with the new tenor of accountability hitting platforms, as well as regulatory activism in the face of a decade or more of IP and media/platform abuses.
There is one wrinkle, however, and authors and publishers should note this:
The parties asserting claims must have at least filed a copyright application, and the Board will not render a decision unless and until the copyright registration issues.
That is, the CCB will require copyrights to have been registered, something authors don’t often do — especially in scholarly publishing — and which publishers using licenses have generally stopped pursuing or requiring. The fees to register a copyright will probably all but eliminate compliance with this provision. However, the overall chilling effect on platforms’ behavior may provide a level of “herd immunity.”
Registering copyright has been on the “102 Things Publishers Do” list for years now, by the way.
Crouere also notes one other potential upcoming change to the IP and copyright environment — the Supreme Court’s decision to take up a case (Google v. Oracle) in which Oracle claims Google made Android by lifting more than 11,000 lines of Java code, without a license and under a suspect “fair use” defense. Oral arguments so far have not gone well for Google, with Chief Justice John Roberts noting:
Cracking the safe may be the only way to get the money that you want, but that doesn’t mean you can do it.
Experts expect Google to lose resoundingly.
It looks like changes that will protect IP ownership and stewardship are ahead — including for code and other forms of copyrighted material.
Note: A more complete version of this article is available to subscribers at “The Geyser.”