Later than anticipated, The CASE Act has been reintroduced in the house and for the first time introduced in the senate.
Much editing has gone on behind closed doors – but identical bills introduced in both chambers. What remains, is the controversial “opt-out” provision – that allows defendants to simply “opt-out” of the small claims process – leaving artists, again, with no other option but to file suit in federal court.
The typical copyright infringement case is a David and Goliath story, so it is hard to see how The CASE Act would help in these circumstances.
I maintain my support for the bill as it moves through committees – but continue to speak to members of congress, the senate, and their staff about my reservations.
A copyright small claims court is an idea whose time has come.
The problem with the current system of copyright enforcement in the United States is that it’s too expensive and complex. Estimates are that it costs an average of ~$350,000 to prosecute a federal lawsuit to enforce copyrights. I have been involved in cases that have taken as long as seven years to resolve and cost my clients anywhere from $250,000 to $800,000. Most creative professionals simply can’t afford to protect their rights. The game is for the big players only.
The way it stands now, visual artists, authors, songwriters, bloggers, vloggers, and small businesses have rights in their creative properties, but no meaningful remedies when their work is taken. Certain members of Congress, working with key stakeholders, are trying to fix that problem.
The idea of the current draft is that there would be a small claims tribunal called the Copyright Claims Board operating out of the Copyright Office. Three Officers would hear the claims. Attorneys would be optional; claimants could bring and argue their cases themselves. Hearings would be conducted electronically with no need to appear in person. So, no travel costs.
Using the Copyright Claims Board to resolve an issue is completely optional. A copyright holder does not need to file a claim there and the respondent (the person against whom the claim is filed) can opt out of the process.
I am by no means an expert on the legislative process but before September 27th, the CASE Act had stalled in Congress. Other pieces of legislation impacting intellectual property rights, specifically addressing the rights of musicians, took priority. Individuals and organizations who have worked on the CASE Act continued pressing to have the bill moved forward.
In August, I went to Washington with one of my clients to meet with Joe Keeley, Chief Counsel of the Subcommittee on Courts, Intellectual Property, and the Internet of the House Judiciary Committee. Our goal was to express our support for the bill and push for a hearing.
My client, Elizabeth Putsche, has been involved in litigation over ownership of a body of work consisting of 15,000 photographs for nearly four years in four different courts, both state and federal in two different states. Her ordeal has turned her into a copyright reform activist. Her persistence, as well as the hard work of many others, resulted in a hearing being scheduled just a month after our visit.