In May, 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 tribunal 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. Supporters say that this will be ideal for smaller creators, such as photographers, to address copyright infringement.
Last week the Senate Judiciary Committee voted in favor of the CASE Act, which means that the bill is now heading to the Senate.
The positive vote was welcomed by many rightsholders. The American Society of Media Photographers (ASMP), for example, said that it’s a great first step to get this bill written into law.
“If enacted into law, for the first time photographers, graphic artists, illustrators, authors, songwriters and other individual creators and small businesses would have an affordable and accessible venue to protect their creative efforts from infringement,” ASMP noted.
ASMP and others see the CASE Act as a missing piece in the copyright enforcement puzzle. They believe that many creators are not taking action against copyright infringers at the moment, because filing federal lawsuits is too expensive.
Taking their complaint to the proposed tribunal at the US Copyright Office would be much cheaper. This issue is also highlighted by Keith Kupferschmid, CEO of the Copyright Alliance.
“Right now, few small creators have that ability because the law requires them to sue in federal court and federal court is much too costly and complex, especially when compared to the relatively small size of the claims at issue,” Kupferschmid tells TorrentFreak.
However, there is also significant pushback against the new bill. Several digital rights activists, for example, warn that the Copyright Office is not the most objective venue to resolve copyright disputes. Another common complaint is that a small claims court invites “copyright-trolling,” with rightsholders potentially filing a flurry of complaints.
EFF‘s manager of policy and activism Katharine Trendacosta notes that, although people can opt-out from participating in the tribunal, rightsholders will find those who don’t and prey on these people.
“It encourages copyright trolling by inviting filing as many copyright claims as one can against whoever is least likely to opt-out—ordinary Internet users who can be coerced into paying thousands of dollars to escape the process, whether they infringed copyright or not,” Trendacosta notes.
While potential damages are lower than in a federal court, they are still substantial. The Tribunal can award damages of $15,000 per infringement, or $30,000 per case, which could easily bankrupt families according to Re:Create‘s Executive Director Joshua Lamel.
“It is not small claims when it could bankrupt over half of American families for sharing a photograph online if they were subject to the CASE Act. It is not constitutional when the tribunal could get the law wrong and a defendant will have no recourse to appeal to the courts,” Lamel stresses.
The new bill creates a familiar tension between rightsholder groups and digital activists, with both refuting each other’s arguments.
According to the Copyright Alliance’s Keith Kupferschmid, opponents use scare tactics and intentionally misstate and omit details about the bill to gin up resistance.
“The bill will neither create or exacerbate a copyright troll problem or result in massive default judgments. The bill includes numerous safeguards to prevent such a thing. In fact, it includes many more safeguards than presently exist today when someone sues in federal court,” Kupferschmid tells us.
One of the main safeguards is the fact that people can opt-out. However, the opponents, for their part, believe that this is meaningless. They counter that many people may simply have no clue what to do. They would prefer to see an opt-in system instead.
“The average person is not really going to understand what is going on, other than that they’ve received what looks like a legal summons,” EFF’s
Some opponents believe that the new bill will give rightsholders an easier way to take down content and keep it down permanently. If a copyright holder files a takedown request after it starts a small claims action, the platform will have to keep the content down until the action is resolved
The Copyright Alliance, of course, sees things differently. It doesn’t believe that it’s logical for rightsholders to pay a fee to simply take a single piece of content down. And if rightsholders file inaccurate claims, they can easily lose a case.
Instead, Kupferschmid counters that the CASE Act could actually help creators to fight abusive takedowns. If people have their content taken down, from YouTube, for example, they can use the small claims court to cheaply dispute this.
Opponents of the bill are not impressed by this argument, however. EFF Senior Staff Attorney Mitch Stoltz tells TorrentFreak that such claims are rare and often hard to prove.
“The proposal to have the new Board hear claims of false takedowns sounds good on paper, but it won’t help people in practice. Legal claims against people for sending false takedowns are very rare, but that’s not because of the expense of a lawsuit – it’s because the legal standard for a false takedown is very narrow and hard to prove,” Stoltz says.
We can go on and on with arguments from both sides, but it’s clear that the bill is creating quite a bit of tension between both camps.
What we do want to stress, however, is that the CASE Act will be useless to the copyright trolls who go after alleged BitTorrent pirates. Unlike an earlier version of the bill, there is no subpoena power. This means that rightsholders can’t start a case against a John Doe who’s only known by an IP-address.
In other words, the proposed small claims court, if adopted, can only be used against infringers who are known by name. That leaves out the millions of traditional file-sharers and downloaders.
As the CASE Act moves forward, be can expect more lobbying from both sides. Which position lawmakers will be most susceptible to will eventually decide whether it’s turned into law, or not.
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