There are many reasons to find fault with American copyright law, but the cost and hassle of enforcement surely top the list. To enforce a copyright claim, a right created by federal law, you must file a lawsuit in federal court. That means hiring a lawyer (cha-ching) and funding the cost of litigation (BIG cha-ching). A 2013 study calculated the median cost of pre-trial preparation for a copyright claim at a whopping $200,000 – and that was nearly a decade ago. Individual makers and small businesses, who may sell a pattern for $10 or license a photo for $100, are priced right out of court, leaving them with no real remedy for infringement.
In late 2020, Congress finally addressed these difficulties when it passed a statute called the CASE Act. The Case Act was enacted as part of a large COVID relief bill so perhaps it’s not surprising that for many of us, its provisions flew under the radar (we were a little busy with a pandemic at the time!). While the CASE Act isn’t perfect, it is a step forward in making copyright enforcement more accessible to small businesses and individuals who can’t compete with the deep pockets of large corporations.
Copyright + Small Claims Court = The CCB
The CASE Act was modeled after the small claims court system, which allows someone with a claim under a certain dollar amount to bypass the traditional court system. In small claims court, the plaintiff completes a form describing their claim and submits it along with any receipts or other relevant documents. A magistrate or other judicial officer then holds an informal hearing and decides the matter in substantially less time than a regular court would take.
The CASE Act creates a copyright-related version of the small claims court process. The Copyright Claims Board (CCB) is designed for someone with a relatively small copyright claim (in most cases, under $30,000). The claimant bypasses federal court, proceeding instead in front of a panel of three copyright specialists. A CCB claimant doesn’t need to file a lengthy complaint laying out their claims and then engage in the grueling process of discovery (disclosing information to and seeking information from their adversary). All hearings or conferences are held via videocall, making travel unnecessary. The Copyright Claims Officers will decide the claim in substantially less time than it would take to litigate a traditional case in federal court.
Simpler, Cheaper, Faster
According to the head of the U.S. Copyright Office, Shira Perlmutter,“The CCB has been designed to be user-friendly and will contribute to the Office’s goal of Copyright for All, which aims to make the copyright system as understandable and accessible to as many members of the public as possible.”
To that end, you don’t need to hire an attorney to submit a CCB claim (although you can hire one if you’d like). Documents are written in plain English rather than legalese. Claims are submitted through a special online filing and management service, so claimants don’t need to follow the arcane procedural rules that federal courts use. While there is exchange of information between the parties, pretrial proceedings are limited. Parties can’t drag out the proceeding by filing endless motions that must be briefed, argued and decided by a busy federal judge.
The CCB has also done a great job of slashing costs. It only costs $40 to file an initial claim with the CCB; should the claim proceed, another payment of $60 must be made. (Contrast this with the $400+ price tag to begin a lawsuit in federal court.) Of course, the savings in filing fees are a pittance compared to the amount a claimant will save in terms of attorney’s fees and costs.
Another way the CCB has tried to make copyright more affordable: establishing an even more streamlined procedure for very small copyright claims (where less than $5000 is at stake). These claims will be heard by only one member of the CCB, instead of three, with slimmed-down submissions and faster turnaround times.
While we don’t know how long it will take for the CCB to decide on claims submitted to it (the CCB first began accepting claims in mid-June 2022, so we’re in uncharted territory), the expectation is a significantly shorter wait for decisions.
There’s Always a But. . .
Alas, the CCB process is not perfect. Its biggest drawback, and the one which may limit its use the most, is the opt-out provision. Yes, participation in the CCB process is 100% voluntary –whether you are the person bringing the claim or the defendant accused of infringement. Why create a decision-making system where a defendant can simply refuse to participate? That pesky Constitution. The U.S. Constitution protects the right to a jury trial. Because the CCB does not use juries, requiring someone to participate may violate their constitutional right to a jury trial. The Constitution also provides certain due process guarantees that may not be met by the CCB process. By making participation voluntary, courts can sidestep these constitutional challenges.
It remains to be seen how useful the CCB will be if defendants can simply refuse to participate.
If a plaintiff accuses someone of infringement, what incentive would the defendant have to agree to participate in the CCB process?
Why not decline to participate in the matter, forcing the plaintiff to resort to traditional federal court, with all its costs and delays, if they want to proceed? The claimant would be right back where they started: priced out of traditional copyright litigation, leaving the defendant to continue with their (allegedly infringing) conduct.
I can imagine some situations where a defendant might agree to appear in the CCB. Imagine a defendant who believes their use of copyrighted material falls into an exception to copyright protection, such as fair use or satire. In that case, getting a determination that they are not infringing copyright could be useful (for example, to stop the plaintiff from filing take-down notices). As the CCB gets underway this summer, we’ll have more of an opportunity to watch this play out.
I’ve tried to hit some of the highlights of the CCB but as you can imagine, the CASE Act contains many additional provisions and limitations. If you’re interested in learning more about the Copyright Claims Board, its dedicated website is www.CCB.gov. If you’d like more information about filing a claim, the CCB has created a handbook designed to walk readers through the process from both the claimant’s and the defendant’s perspectives.
This article is for informational purposes only and does not constitute legal advice. Everyone’s situation is different. If you have questions about your own legal situation, please consult a licensed attorney in your jurisdiction.
Carol J. Sulcoski is an attorney by day and a knitting author, designer and dyer by night. Her latest book is “Yarn Substitution Made Easy” (Lark Crafts 2019). She lives outside Philadelphia with her three nearly grown-up children and a fluffy orange cat.