October 18, 2019
The Authors Guild has been actively advocating for a small copyright claims court since 2006, when we testified before the House Judiciary Committee about the need for such a venue. Copyright is the very foundation of the publishing economy and authors’ ability to earn income. It is so important to democracy that our founders put it in the Constitution. And yet, extremely few authors or other creators have the ability to enforce their copyrights. Federal civil litigation is the only means of doing so under the current law and it is far too expensive—at least $400,000 or so, which is much greater than the value of most writers’ copyright claims and well beyond the means of most authors, for whom copyright is a right without a remedy. Hence the need for a small copyright claims court. The CASE Act will create such a tribunal in the Copyright Office, and there will be no need to hire a lawyer or travel to Washington D.C. Defendants as well as claimants will all benefit from the efficiency and cost-effectiveness of this tribunal resolving copyright infringement claims.
Authors Guild executive director Mary Rasenberger and general counsel Cheryl Davis broke down the facts in a recent Q&A session. Here are a few takeaways.
Does the CASE Act protect authors against theft from plagiarizers using print-on-demand and other new media (video, audible) to plagiarize an author’s original, copyright-registered writings?The copyright law protects against plagiarism that rises to the level of infringement—as most does. The CASE Act absolutely will allow authors to bring infringement claims in the small claims tribunal against this kind of plagiarism for claims up to $15,000 for each work infringed ($30,000 in the aggregate). If somebody just takes a paragraph, however, and changes it up, that’s not likely to be infringing, but when someone takes many passages of your book or copies it entirely, that is; and that sort of copyright infringement is exactly the kind of case this tribunal will be useful for, provided that you will only be able to recover up to $15,000.
If it is totally voluntary, how useful can it be?That is a good question. It will not be useful in all cases because the infringer can always opt-out and force you to go to federal court to pursue a claim. We had to make the tribunal optional to comply with the constitutional rights to a jury trial and to be heard by an Article III court. Infringers who know how to game the system will likely opt-out.
That said, many defending entities will agree to stay in the tribunal because it will be so much cheaper and easier than federal court and damages are capped. It will be most useful for encouraging settlement, or where parties cannot agree on the amount of damages and whether a use is a fair use.
One issue to consider when trying sue pirate websites or other commercial pirates—whether in this new small claims court or federal court—is that most are based in foreign countries. Although you will be able to bring a claim against a foreign party in this tribunal, it may be hard to get them to respond—just as it is in federal court. It will also be more difficult and costly to effectively serve a foreign party (you have to serve the infringer just as you would in federal court). Once served, if they don’t opt-out and then don’t appear, the tribunal can award a default judgment in your favor. While it might be hard to enforce a money award against a foreign author without spending a lot of money, you should be able to enforce an injunction preventing further infringement.
I’m in support of the plan, but those who oppose the Act claim that it will be easy to abuse. Similar to what we see with patent trolls, will this be something that those who don’t hold legitimate claims to a copyright use to strip legitimate rights from authors or to clog up the legal system? What safeguards will the Act include to prevent abuse or intentional bottle-necking of the system? Since it can all be done by mail or phone, what keeps bad players from launching hundreds or thousands of claims? Or is this just a natural risk that comes with creating a new remedy for creators? That was an issue the internet companies and others raised last year.
We do not think the tribunal will be used abusively because the financial incentives are not there, given the $15,000 cap per claim. Lawyers who bring copyright infringement actions en masse (the so-called “trolls” in the copyright arena) would not be able to earn enough to justify bringing false cases.
Moreover, as a result of the concerns expressed last year, several protections were built into the bill to prevent abuse. First of all, the tribunal can assess penalties and attorney’s fees for abusing the system, and it can suspend serial abusers. Second, the copyright tribunal does not have to take every single claim. It will review the claims and determine whether or not the claim is pertinent for that tribunal. Third, the Copyright Office will also be able to establish regulations, setting a cap on the number of claims that any individual or entity can bring in a given year, which will stop people from overusing the system.
Rather, we strongly believe that the new tribunal will prevent trolling. In the patent world, “trolls” are companies that buy up patents that are not being used simply so they can sue others using technology that involves the patent in some way. That is not the case for copyrights. Only the copyright owners can bring copyright claims; you cannot transfer the right to sue.
Another objection we are hearing is that people potentially won’t know that they have a claim filed against them and may end up getting default judgments entered against them. First, the defendant must be served with process and a notice that includes a description of how to opt-out. The Copyright Office will follow up with a notice that explains the opt-out process and then a third notice with plenty of time to respond before entering a default. It is hard to see how anyone could be served with a full notice that explains the claim and how to opt-out and then receive two official government notices describing the same, and not know that someone has made a claim against them and that they have to opt-out. These will be official notices from the Copyright Office and should make some people stop and take the claims seriously.
How much support does the CASE Act currently have in Senate and House?We have a lot of support. It’s really great. We already have over 120 congressional representatives and 15 Senators who have signed on to co-sponsor. We have almost a quarter of Congress on board already and others who have said they will support it. It’s rare to have that many people sign onto a bill as a co-sponsor. And it has great bi-partisan support in Congress which makes it more likely that it will proceed. When we go and lobby about this to members in Congress, we talk about it as an access-to-justice issue. Creators’ careers are based on copyright. That’s what you can monetize—it is your copyrights. Being able to enforce that right is a core “access-to-justice” issue.
Is there a statute of limitations on filing a CASE claim? The statute of limitations will be three years from the time of the infringement. You have three years from the date the infringement stopped to bring a lawsuit, and you will only get damages for the infringement during that three year period.
To have a copyright, you do not need to register your work, but to bring an infringement claim you do need to register your work. There are provisions for expedited registration.
We recommend registering your work within three months of publication, so you are guaranteed the ability to get statutory damages and attorney’s fees, rather than have to prove what your losses actually were. Statutory damages in the small claims court are capped at $15,000 for damages and $5,000 for attorney’s fees. It’s $35 (going up to $45) to register your work with the Copyright Office if you do it online. If you are with a traditional publisher, they should do it for you. Make sure to put it in your contract with your publisher that registration should be within three months of publication.
And if you are a member, the Authors Guild can walk you through the registration process. Also, remember that you can send your contract to us for review and make sure that it has the necessary language in it, and if it doesn’t, we can give you language to add it.
For federal litigation, under a recent Supreme Court case, you must now have the registration number for your copyright on hand before you can file. Under the current CASE Act Bill, you must have only applied for the registration to file, but it won’t be heard until a registration is actually obtained from the Copyright Office.
A less expensive, faster process is obviously desirable. However, I’m very worried that this is going to undercut copyright as a whole. The small damages are far too low, and the scale of the problem is huge. Three ‘judges’ in D.C. aren’t going to be able to handle more than a small handful of cases, but the damage they are going to do to the few teeth in the current system could be significant. This tribunal will not replace federal court litigation. Plaintiffs and defendants can still chose federal court instead. The award under the CASE Act will be low (up to a ceiling of $15,000 and in most cases will be less), and so many cases will still be better off in federal court in any event. For instance, criminal level ebook piracy and counterfeiting are major problems today, and we don’t know if the small claims court will be of much help against those pirates as previously explained.
Also, the Copyright Office has discretion over which cases to take and will not hear complex cases involving more than infringement analysis. To be clear, the CASE Act will be just one tool in a multi-pronged approach to combat infringement.