June 24, 2019 — DMLA board member Rick Gell, spoke briefly with Nancy Wolff, DMLA’s Senior Legal Counsel, who has been in the trenches fighting for the CASE Act on behalf of our content licensing community. The Case Act just took a big step in Congress.
Nancy, briefly, what happened last week?
The Case Act was marked up by the Judiciary Committee of the Senate and will now move to the full Senate. We are still waiting for the House Judiciary Committee to mark up a similar bill.
I know a thing or two about IP Law, but nothing about Small Claims Courts. Can you provide a little background?
Because copyright is a federal law, copyright disputes can only be resolved in federal court, which is an expensive forum for the typical disputes involving the misuse of images and video. Just to start a claim, the filing fee is $400 and you need to use an experienced federal court attorney. Litigation can cost hundreds of thousands of dollars. Small claims courts most people are familiar with cannot be used because they are only for claims that can be brought in state court.
The UK established a copyright Small Claims Court in 2012 which is dedicated only to copyright cases. What is being proposed in Congress is to have claims of relatively lesser value resolved by a special tribunal at the Copyright Office. You would not need to have a lawyer and the claims could primarily be resolved on paper or by telephonic calls, without travel expenses.
So, if I understand this correctly, in a proposed copyright small claims court, both parties agree to appear before this tribunal and wave a trial by jury, therefore it is “voluntary”?
Yes. You can bring a claim in the copyright Small Claims Tribunal, and the other side can agree to use the tribunal or “opt out”. If the other party opts out, it can still be sued in federal court.
It creates a new pathway for those who allege their copyright has been infringed and those who are facing a claim of infringement. If your copyright claim is less than $15,000 for each instance, $30,000 in total – you are eligible.
When did the idea of using a Small Claims Court for IP start?
Many of us, including myself, have worked on enacting a copyright Small Claims Court for over ten years. The Copyright Office began studying this issue, conducted hearings and wrote a report in September 2013 recommending a separate copyright tribunal. The DMLA has been working with a coalition of associations of visual artists for many years, as well as the Copyright Alliance, Songwriters Guild, Authors Guild and many others, meeting with Congress and encouraging grassroots efforts by members to obtain sponsors for the CASE Act in both the House and Senate and to ultimately get this bill passed.
Who will the judges be?
The US Copyright Office will create a panel of three officials, who are experts in copyright law to oversee the process. This should encourage registration as there may finally be an affordable venue for enforcement.
There has been some recent opposition, primarily from the Electronic Frontier Foundation about encouraging copyright trolls. Can you speak to their concern?
The CASE Act in both the House and Senate have precautions against abuse and excessive filings. Creators are entitled to enforce copyright when their works are infringed. The use of the terms copyright troll is often misused and attributed to anyone trying to enforce copyright. Courts have generally reserved this term for attorneys who file a high volume of cases without trying to settle first, in order to obtain higher fees than are reasonable. It is not likely these attorneys will participate in this tribunal. If creators have a viable option, they can bring standard copyright claims in this tribunal without attorneys.
As the tribunal is optional, the EFF should not have any concerns as anyone can elect to opt out. The EFF often portrays copyright infringement as infringing on free speech, without properly recognizing copyright owners legitimate right to control the use of their works. The DMLA and our members are strong supporters of free speech and the Copyright Act provides limited use without permission under the fair use doctrine in keeping with the First Amendment. Copyright enforcement and free speech are not mutually exclusive and copyright infringement is not equivalent to censorship.
What is the next step?
When the full senate returns from vacation, hopefully Mitch McConnell will bring the measure to the floor for a full vote. Then on to the House.