When I was growing up in Harlem in the 1960s, I like many other children in America had heard of and yearned to visit the still somewhat new and apparently magical restaurant called McDonald’s. The TV commercials depicted mouth-watering French fries, double-decker hamburgers and thick milkshakes. “Just look for the golden arches,” the ads invited. But for kids in Harlem — where the first McDonald’s did not arrive until 1973 — the golden arches were nowhere to be found. For us, McDonald’s seemed almost mythical.
For a large segment of the creative community, copyright protection in the United States is a lot like McDonald’s was for Harlem kids in the 1960s — close enough to get our attention, but too far beyond our reach to mean anything. That protection, which is guaranteed under the law, is only available to those who can afford to spend hundreds of thousands of dollars on copyright litigation. The cost and complexity of even routine copyright litigation often renders the courts beyond the reach of smaller rightsholders, especially those in marginalized communities. Middle- and working-class creators hear about superstars and big corporations enjoying the protections of copyright, while for them, actual copyright protection is effectively all but a mythical right. Consequently, many legitimate claims simply go unaddressed, a “lack of access to justice” problem that is all too familiar in certain strata and segments of American society.
The inability to protect the personal investment involved in one’s creative labors can all but extinguish one’s desire to participate in the copyright system. While certainly some creatives produce expressive works with little concern for monetary reward, many others have no choice but to abandon such endeavors to pursue vocational activities wherein their rights are better protected. If nothing else, a day of even minimum wage labor will result in a paycheck, however small. Such outcomes undermine the very purpose of copyright, particularly where society is denied the unique voices and insights borne of marginalized perspectives.
The Copyright Alternative in Small-Claims Enforcement Act would change this inequitable status quo by providing middle- and working-class artists with a real ability to protect themselves and their creations. It creates an optional tribunal with jurisdiction over civil copyright disputes carefully designed to fill the gap created by the lack of access in our current system.
Unfortunately, the provisions of the CASE Act seem to be largely misunderstood by some organizations which have taken positions against its passage. Perhaps the most troubling misinterpretation of the CASE Act is that it poses a threat to free speech. In fact, the opposite is true: the CASE Act provides for a new and sorely needed improvement to make it easier for people, regardless of socio-economic status, to express themselves by making fair use of a copyrighted work. Under current law, protecting fair use rights in federal court costs tens of thousands of dollars, or more, and as a result, are seldom pursued. But under the CASE Act, if a copyright owner demands the take down of a work posted on the internet, a user who believes that her post qualifies as fair use can easily and inexpensively assert her rights in this forum, and further, can even assert a claim for misrepresentation against the copyright owner.
Some critics also mistakenly believe that if it’s easier for creators to assert their legal rights it will encourage abusive practices like “copyright trolling,” the practice where infringement lawsuits are brought against vulnerable defendants to extort payments by threatening large judgments. But trolling only works when it’s cheaper to give in and pay than it is to fight the litigation. Under the CASE Act, a respondent does not need a lawyer and can submit her defense via email or appear by teleconference. In other words, itwill be cheaper to stand up and protect your rights. Indeed, most trolls won’t want to risk going before the CASE Act’s Copyright Claims Board because anyone found to be abusing the system can face bans, fines and lose the ability to bring infringement litigation in federal court. In short, the CASE Act won’t encourage copyright trolling, but rather it will finally provide a practical deterrent to this kind of misuse of the copyright law.
The CASE Act is about access to justice, both for copyright owners and users who presently cannot afford the price of admission to the system. Access to justice should not be theoretical and mythical when the struggles that marginalized copyright owners and users face are real. For the creative community, the CASE Act means that true protection under the law will finally be within reach.
Lateef Mtima is a professor of law at the Howard University School of Law and is the dounder and sirector of the Institute for Intellectual Property and Social Justice, a nonprofit organization that advocates on behalf of the intellectual property rights of underserved and marginalized groups and communities.
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