Dr. Copyright

Dear Doc:

I have heard that Congress is considering a new law that would create a small claims court for copyright infringement cases, particularly those that stem from infringement on the Internet. That sure sounds like it would help to stop unauthorized copying! Whaddya think?


Dear Well:  

Have you ever shared a meme, or a photo or video that isn’t yours, or downloaded a photo that you didn’t take? Under this “small claims” legislation, you could easily find yourself stuck with a $5,000 judgment. The proposed legislation is called the CASE Act, and it is now being considered in the Senate. Under that bill, a “Copyright Claims Board” would be established in the Copyright Office, staffed by three administrative judges called “Claims Officers” and empowered to hear copyright infringement complaints. Proceedings at the Claims Board would be voluntary, but if a respondent fails to opt out in time, the proceedings become binding, and the outcome can be enforced in federal court. The Board could issue damages awards of up to $15,000 per work infringed, or $30,000 total per proceeding. If the parties consent, it can also issue “agreements to cease infringing activity” that become binding injunctions. The Doc thinks that this legislation is a potential bonanza for copyright attorneys, and, as we will see, this Claims Board could be the answer to the Doc’s retirement fund dreams!    

The CASE Act also gives the Copyright Office permission to disregard procedural safeguards and due process, as long as the amount of damages being sought is $5,000 or less. For those claims, the Copyright Office would be empowered to make new procedural rules, potentially with little or no protections for people accused of infringement. While this sounds like good streamlining of small cases, in practice it would empower media companies and other well-funded entities to issue $5,000 copyright demands to innocent people who just share or repost a photo, cartoon, video or article on the Internet, without requiring any showing of harm or actual damages by the claimant.   

One analysis of the bill has pointed out that, “knowledgeable defendants will opt out of such proceedings, while legally unsophisticated targets, including ordinary Internet users, could find themselves committed to an unfair, accelerated process handing out largely unappealable $5,000 copyright parking tickets.”   

As the Electronic Frontier Foundation recently said:  

Today, someone who is going to sue a person for copyright infringement has to register their work with the Copyright Office before the infringement began, or within three months of first publication, in order to be entitled to statutory damages. Without a timely registration, violating someone’s copyright would only put an infringer on the hook for what the violation actually cost the copyright holder (called “actual damages”), or the infringer’s profits. This is a key protection for the public because copyright is ubiquitous: it automatically covers nearly every creative work from the moment it’s set down in tangible form. But not every scribble, snapshot, or notepad is eligible for statutory damages-only the ones that U.S. authors make a small effort to protect up front by filing for registration. But if Congress passes this bill, the timely registration requirement will no longer be a requirement for no-proof statutory damages of up to $7,500 per work. In other words, nearly every photo, video, or bit of text on the Internet can suddenly carry a $7,500 price tag if uploaded, downloaded, or shared even if the actual harm from that copying is nil.

So Well, if you, like the Doc, think that this legislation is misguided, you, like the Doc, should immediately write to your Senators (you do know who they are, right???) and tell them not to support the CASE Act. Tell them to fix the patent law, instead. The Doc will thank you.   Have a problem with your intellectual property? Talk to the attorneys at LW&H. They’re the right guys to make things better, so that you sleep well.  

Until next month,  

The “Doc”

— Lawrence A. Husick, Esq.