New “Small Claims” Bill Welcomed by Rightsholders, Feared by Copyright Troll Fighters

This week, new legislation was tabled in the U.S. House and Senate that introduces the creation of a “small claims” process for copyright offenses.

The CASE Act, short for “Copyright Alternative in Small-Claims Enforcement,” proposes to establish a copyright claim board within the United States Copyright Office.

If adopted, the new board will provide an option to resolve copyright disputes outside the federal courts, which significantly reduces the associated costs. The proposal follows years of discussions with various stakeholders and has bipartisan support.

The House version of the bill (HR 2426) was introduced by Representatives Hakeem Jeffries (D-NY) and Doug Collins (R-GA) and an identical Senate version of the CASE Act (S. 1273) was tabled by  Senators John Kennedy (R-LA), Thom Tillis (R-NC), Dick Durbin (D-IL) and Mazie Hirono (D-HI).

The idea behind the legislation is to lower the barrier for smaller copyright holders with limited resources, who usually refrain from going to court. Filing a federal case with proper representation is quite costly, while the outcome is rather uncertain.

The newly proposed copyright claims board is a cheaper option. It will have three judges who can hear cases from all over the country. They can award damages awards of up to $15,000 per infringement, or $30,000 per case.

The introduction of the bill this week has received broad support from various copyright holder groups.  The Copyright Alliance, for example, says that it will empower creators with smaller budgets to protect their rights.

“The CASE Act is a legislative priority for hundreds of thousands of photographers, illustrators, graphic artists, songwriters, and authors, as well as a new generation of creators including bloggers and YouTubers across the country,” Copyright Alliance CEO Keith Kupferschmid Copyright Alliance CEO Keith Kupferschmid said yesterday.

“Today, they have rights but no remedies. The CASE Act will go a long way to restoring their faith in the copyright system.”

The American Society of Media Photographers (ASMP) is also pleased with the introduction of the CASE Act. Many photographers have to deal with people and companies who use their work without permission. However, filing a court case can be more expensive than the compensation demanded.

Tom Kennedy, executive director of ASMP, stated that the new bill will correct this “historic inequity” in copyright law.

“Under this legislation, these artists will have a viable alternative to the often prohibitively expensive federal court system, and their creative efforts will be appropriately protected so that they are incentivized to continue producing works that change how people see their world,” Kennedy said.

At the same time, there are also concerns. Digital rights groups Public Knowledge and the Electronic Frontier Foundation (EFF)  warn that the bill could do more harm than good. One of the main concerns is that it may make it easier for copyright trolls to go after alleged file-sharers.

The EFF and various attorneys and other experts shared several of their concerns in a letter sent to lawmakers last week.

One issue highlighted in the letter is that the CASE Act will allow the Copyright Office to issue subpoenas to obtain the identity of an account holder whose connection is believed to have been used to download copyright-infringing material. At the moment, such requests have to be signed off by a federal judge.

The letter further points out that the CASE Act may in fact make it easier for copyright trolls to go after alleged pirates without solid evidence, just when federal courts are starting to limit these types of abuse.

“The federal courts are reining in these abuses by demanding specific and reliable evidence of infringement—more than boilerplate allegations—before issuing subpoenas for the identity of an alleged infringer,” the letter reads.

“Some federal courts have also undertaken reviews of copyright troll plaintiffs’ communications with their targets with an eye to preventing coercion and intimidation. These reforms have reduced the financial incentive for the abusive business model of copyright trolling.

“The CASE Act threatens to derail this progress by creating an alternative forum where these carefully crafted protections will not apply,” the letter adds.

It is worth noting that participation in the small claims board is voluntary and potential defendants can opt-out. However, if they fail to do so, any order against them can still be binding and enforceable through a federal court.

While opting out is an option, less knowledgeable defendants may not be aware of the risks and safeguards of either choice. As such, potential copyright troll targets may see a small claims board as a safer option, while that’s not necessarily the case.

Both the House and the Senate bill have yet to go through the legislative process where the text can still be refined or rejected. Opponents will likely request changes to protect the public from frivolous claims, while rightsholders want to ensure that their interests are protected.

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