On December 27, 2020 Congress enacted the Copyright Alternative in Small-Claims Enforcement (“CASE”) Act as part of the new Covid-19 Relief Consolidated Appropriations Act. With the enactment of the CASE Act the U.S. Copyright Office has created an administrative tribunal that will provide a forum to adjudicate copyright claims and counterclaims in a much more direct way than in the past. The tribunal, known as the Copyright Claims Board (“Board”), is not set to convene until the end of 2021. The Board will be comprised of three Copyright Claims Officers recommended by the Register of Copyrights. Infringement will be found when two of the three officers agree. It is currently unclear whether small-claims style cases can be filed early to be adjudicated by the tribunal when it does start hearing cases.
The passage of the CASE Act will likely result in an increase in copyright infringement litigation. Prior to the Case Act, federal court was the only forum available to a plaintiff alleging copyright infringement. This led to many infringements going largely unaddressed because the cost of federal litigation often far outweighed the amount in damages. Now, with a more streamlined and cost-effective system in place, it is likely we will see a significant increase in the number of filed actions.
Just like traditional copyright infringement cases, a copyright must be federally registered (or have received a refusal for registration) with the Copyright Office of the United States before a complaint to the tribunal or courts will be heard. Parties can bring suit to the Board for direct infringement, declarative non-infringement, Digital Millennium Copyright Act (“DMCA”) misrepresentation claims, and monetary counterclaims just as they could under traditional actions arising from the Copyright Act of 1976 or the DMCA. Notably, the Board will conduct hearings, conferences, and accept written submissions and conduct the cases generally remotely. Defendants can opt-out of the CASE action process by filing written notice with the Board within 60-days of being served. Once they opt-out the claimant may bring suit in federal court which may allow for greater awards and attorney’s fees. It is unclear whether a defendant will be able to remove the suit to federal court at any time for other procedural reasons or only within the 60-day period. The Board has the authority to order injunctive relief (upon agreement of the parties) and damages (either actual or statutory) per occurrence of infringement up to $30,000. Upon receiving a judgment, the prevailing party will have up to one year after to bring a request for confirmation by a district court to enforce the judgment. Board determinations may be appealed within 90 days of the determination but only on limited grounds, questions of law and fact excluded.
Our office will keep apprised of changes and interpretations of this law as it progresses. If you are a content creator or rights holder in any capacity and you believe your copyright has been infringed upon, or conversely, if you find yourself defending a copyright-action we have attorneys knowledgeable in this area who can help you through exploring a claim or defense.
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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. ©2021 Law Offices of Pullano & Farrow PLLC
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