The CASE Act Provides An Affordable Means of Enforcing Your Copyright

Dec 27

Federal lawsuits are expensive. This, unfortunately, means that many would-be copyright claimants (e.g., painters, musicians, designers, etc. who are bringing a copyright infringement claim) often opt out of meaningfully enforcing or filing an infringement suit when a third party uses their proprietary materials. After all, how can the “starving artist” hope to pay the tens—potentially hundreds—of thousands of dollars it may take to prosecute an infringement suit when potential recovery may not even cover all of the rights holder’s fees and expenses?

“Although the parameters for bringing an action before the CCB are tight, the CASE Act provides rights holders a cost-effective and streamlined means of meaningfully enforcing their works.”

Enter the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020, passed by Congress in December 2020, to address these concerns. The CASE Act directs the Copyright Office to establish the Copyright Claims Board (CCB), which is a three-member tribunal of impartial copyright law experts within the Copyright Office—a means of affording rights holders an efficient and user-friendly alternative to resolve “small claim” copyright disputes. The CCB officially opened its doors in June 2022, and is currently taking on small claims cases that may not have otherwise been filed due to cost. Here are some of the key features of the CCB:

Only three types of claims. The three types of claims that a claimant can bring before the CCB include (1) copyright infringement claims, (2) claims seeking a declaration that a certain work does not infringe a copyright, and (3) claims of “misrepresentation” in notices sent under the Digital Millennium Copyright Act (DMCA).
Only claims up to $30,000. A CCB claimant cannot bring a claim before the CCB seeking more than $30,000 in total damages—this keeps in line with the CCB’s goal of efficiently administering lower-dollar copyright disputes.
Efficiency is key. Proceedings before the CCB require only very a basic exchange of documents and information rather than the more complicated and costly procedures inherent in federal copyright litigation.
No attorney requirement. Although attorneys are permitted to represent claimants, proceedings before the CCB are meant to be accessible and clearly understood by anyone with a legal claim. Attorneys can be expensive, and the primary purpose of the CASE Act was to provide a cheaper and more efficient means of enforcing copyrights, after all!
Hearings are virtual. In today’s post-COVID era, more and more court hearings are being held online for efficiency and practicality purposes, and proceedings before the CCB are no different.
Participation in CCB proceedings is voluntary. Either the claimant or alleged infringer can choose to opt out of the CCB proceeding. In such a case, the claimant can still choose to file the claim in federal court.
Preclusive effect. Once a claim is decided by the CCB, the parties will generally not be able to file the same claims in federal court and re-litigate the issue.
Non-precedential. CCB determinations are posted publicly, but are not considered “precedential” under the eyes of the law. That is, any decision rendered by the CCB will not bind the CCB to make the same decision in future cases and will have no impact on decisions in future court proceedings.
Registration not required for filing. Consistent with its goals of providing a more streamlined alternative to federal litigation, the CASE Act does not require the same registration requirements delineated by the Copyright Act. Instead, the CASE Act allows a claimant to file an infringement claim with the CCB once “a completed application, a deposit, and the required fee for registration” is delivered to the Copyright Office. Notwithstanding, the work at issue must be registered by the Copyright Office before the CCB renders a decision in an infringement dispute, so CCB proceedings are often suspended pending said decision. In the event the Copyright Office refuses to register the work, the CCB action will be dismissed without prejudice (meaning the claimant can bring the same claim again in the future—if the word does eventually register).
The CCB enforces against abusive practices. The CCB may generally order payment of a party’s costs and attorney’s fees if the claimant files a bad faith (misleading or abusive) claim—these costs and fees are usually capped at $5,000 (or $2,500 for parties not represented by attorneys). If a party demonstrates a pattern of bad-faith conduct, the CCB may increase these fees further, dismiss the party’s pending claim(s), or even ban parties or their representatives from filing new claims for a period of time.

Although the parameters for bringing an action before the CCB are tight, the CASE Act provides rights holders a cost-effective and streamlined means of meaningfully enforcing their works. The starving artist now no longer needs to worry about cost being a bar to enforcement, and users must be even more diligent about clearing any rights and licensing for works they intend to use publicly. An experienced copyright attorney can assist in efficiently filing and prosecuting a proceeding before the CCB, or even assisting a rights holder in navigating the CCB process pro se. Either way, Congress definitely got this one right—we must protect the integrity of artistic works, and the ability of artists and creatives to reap the benefits of said works, at all costs.