An otherwise polarized Congress is poised to pass legislation that could expose a multitude of Americans to copyright lawsuits. This proposal is the Copyright Small-Claims Enforcement Act (CASE)—currently embodied in the companion legislation of H.R. 2426 and S. 1273. It will create a copyright small claims court through which rights holders can pursue small copyright infringement claims. CASE’s advocates argue the legislation is necessary to protect the “creative middle class,” currently being deprived compensation because of rampant copyright infringement in the digital age. Unfortunately, CASE will provide a deterrent paper tiger to the worst infringing bad actors while creating headaches for everyone else.
The goal behind CASE is to create an alternative process through which rights holders can protect the creative works they own. Currently, they have to sue copyright infringers in federal court, the processes of which can be long and expensive. “Middle class” rights holders often find an infringement lawsuit is not worth that cost. CASE will provide these aggrieved rights holders with a cheaper alternative—a small claims court housed in the U.S. Copyright Office called the Copyright Claims Board (the Board). The Board will hear cases in which it can render judgments of $5,000 per claim up to a total of $15,000. CASE is not a complete replacement for federal courts in copyright cases. Defendants can opt out of Board proceedings. A “voluntary” process to deal with copyright infringers before a cheaper venue? What’s not to like about CASE?
The biggest problem with it is practically every American could find themselves subject to a CASE lawsuit because practically everyone, on any given day, commits copyright infringement. Many of the emails we resend, memes we post, and the videos and pictures we take could technically be violations of copyright law. A law professor once hypothesized that anyone could easily be guilty of up to millions of dollars of copyright damages through mundane daily activities. Most of the time, we potential infringers are protected from legal action, not because we are on the right side of the law, but because it isn’t worth the time and effort for a rights holder to bring a lawsuit against us. Now CASE has the potential to make such lawsuits a whole lot easier.
Many rights holders will avail themselves of this opportunity to sue. Of course, there will be those with legitimate claims against brazen infringers. There will also be claims by those who are not so aggrieved. Some rightsholders might litigate any unauthorized use of their work no matter how small, unintentional or protected by the defense of fair use. Authors’ estates could sue those who used even brief quotes from their antecedents’ works. Organizations or political figures could sue critics who used their words or images in commentary. Owners of paintings displayed in museums and sculpture displayed in public, even graffiti artists, could sue casual photographers who captured their works on their phone cameras. These are not abstract illustrations. Incidents like these have occurred in the more time-consuming and expensive federal court system. Though some plaintiffs lost these suits, the point is that they were brought at all. Many others like them could be brought against ordinary citizens under CASE.
Worse, CASE could provide a new source of income to those already using copyright lawsuits as a revenue stream—the copyright trolls. CASE does have some safeguards against copyright trolls, for example by limiting the number of suits any entity can bring and penalties for claims brought in “bad faith.” But not all trolls bring suits on their own behalf. One represents aggrieved rights holders and filed over a thousand copyright violation lawsuits over three years. These were brought in federal court, the expense of which, again, is supposed to deter such lawsuits! While this particular troll has suffered bad faith judgments, these often stem from its “bare knuckle” litigation tactics rather than the claims it brought. These trolls will likely figure out a business model to make CASE lawsuits or threats of lawsuits work for them. The question is probably not whether or not trolls will abuse CASE’s small claims court, but how many will do so for how much.
The perfect defense to any of these suits is that the system is voluntary. But that is only if defendants affirmatively opt out in writing as required by CASE. The worst infringing bad actors will likely take this course, leaving one to wonder why the Board is needed at all if so easily circumvented. The problem for other Americans is that, if civil caseloads in general are any guide, most defendants do nothing when faced with a legal suit. Similar defendants in CASE copyright suits could then find themselves subject to a Board default judgment of thousands of dollars with limited rights of appeal. Rather than being a sword for the creative middle class, CASE seems more like a trap for the unwary.
Whatever the litigant, those who find themselves within the small claims system will likely need a lawyer. While the system’s advocates seem to believe the court will be lawyerless, it is, in fact, a system only a lawyer could love. Litigants will have to make complex legal decisions on jurisdiction, service, discovery, evidence, joinder of parties, and expert testimony—subjects that comprise whole law school classes, sometimes even law school courses. To bring and defend a claim successfully, they will have to fathom copyright’s rich complexity, which is an amalgam of statutory and “judge made” law. They will have to divine the meaning of terms that have bedeviled lawyers and even judges—originality, creativity, moment of creation, access, probative similarity, substantial similarity, striking similarity, work-for-hire, right of first sale, de minimis copying and, of course, the four-part fair use test to name just a few. The U.S. Supreme Court recently found that chevrons on a cheerleader’s uniform were copyrightable. Good luck to the self-represented litigant in figuring that one out. Researching these or any copyright issue requires searching a vast number of conflicting cases that are fact specific, even media specific. Such questions cannot be easily or effectively researched on free databases like Google Scholar, but with expensive legal databases and encyclopedic treatises, like those produced by Westlaw and Lexis. CASE does allow for litigants to be represented by clinic law students. But this service will be of little comfort to one who finds a seasoned attorney on the other side of a copyright claim. While a litigant can prosecute and defend their case on their own or with a law student, given the stakes of hundreds, even thousands of dollars, they might want to think twice about doing so.
Certainly, the problems CASE was created to fix are real. However, the proposed remedy Congress intends to pass needs to be improved. And there are many ways Congress could do that. Defendant participation should be opt in and not opt out. The Copyright Office should be mandated not only to create information sources and tools, but to create ones that are more in-depth and technologically advanced than have heretofore been provided to the public. For example, the office should use its expertise to create and update a comprehensive public treatise on copyright law that self-represented litigants could use, one similar to that prepared by the Congressional Research Service for constitutional law—the classic Constitution of the United States of America: Analysis and Interpretation. At the very least, the Board should not be allowed to operate until the Copyright Office has an effective database of copyright registrations. The current one is bare and only good for the most basic textual searching. How can people be held accountable for copying if they are unable to determine whether a work is copyrighted at all? In addition, a sunset provision for the court, as proposed by Rep. Zoe Lofgren, would require Congress to review the Board’s success and confront and fix any inadequacies or allow the Board to disband. All of these measures would ensure that the Board and the processes it oversees are fair to all, thereby earning the confidence of the public.
Most importantly, Congress itself should address the impact CASE will have on Americans who find themselves defendants before the Board, for example a teacher who reads a quote believing it to be fair use or the grandmother who unintentionally and accidentally uses a copyrighted design in a product she sells on Etsy. So far it has not done so. A witness tried to pose this question at a congressional hearing in 2018 but was interrupted by a congressman and it went unanswered. Representative Lofgren was met with the same response when she raised similar issues at a recent committee markup on the bill. Congress should not pass CASE until Congress gives an answer.