Time to Go Back to the Drawing Board on the CASE Act

Sometimes a bill with the best of intentions can have the worst of results. Unfortunately, the Copyright Alternative in Small Claims Enforcement Act, which recently passed the Senate Judiciary Committee, is exactly this type of legislation.

The CASE Act is based on a simple premise: creating a streamlined small claims proceeding at the Copyright Office in the Library of Congress where folks who think their copyright is being infringed can bring actions against infringers. This seems like the type of legislation that no one would oppose at first glance; however, the devil is in the details.

The bill’s proponents argue that the bill will allow small independent artists to go after bad actor infringers. But that is not what will happen, as it ignores the realities of copyright infringement and copyright law. Most infringement is located overseas, which will be outside the purview of the bill. A recent Chamber of Commerce study on video marketplace infringement found over 99% of it occurs by non-U.S. actors. The CASE act will do nothing to stop that.

Additionally, the CASE Act will do nothing to stop corporations and sophisticated parties that understand copyright law and will take advantage of the CASE Act’s 60-day opt-out period. They will just opt-out.

What that leaves is everyone else. Every American who is using social media and the internet is using others’ copyrighted works in some manner. This includes all members of Congress, their campaigns and their staff. Have you ever saved a photo to a Houzz lookbook? Have you ever shared a meme? Or a GIF? Have you ever downloaded a photo and used it for your website? Have you posted a video online with a song playing in the background? If you have, you have used a copyrighted work without the permission of the author.

It is all of us who will be the ones who end up having CASE used against us. Most of us won’t know about the 60 day opt out — or will think the notice we get is a scam and ignore it. Certainly, without hiring an attorney we will not understand the intricacies of copyright law and that most of the uses described above are permissible fair uses. Even then, the CASE Act gives no guarantee the tribunal at the Copyright Office will apply the law properly, especially as it comes to fair use where many of the CASE Act’s proponents have disagreed with how the courts have interpreted fair use and are looking for a way around the courts. The legislation specifically prevents access to the courts to appeal a clearly erroneous decision, which is a dangerous precedent for justice in this country.

Ultimately, this is where the CASE Act’s two biggest flaws lie. Damages under the bill are a minimum of $750 and a maximum of $30,000 — far from small claims. That is a whole lot of money for the average American to risk when they get a CASE Act claim and miss the 60 day opt-out. Especially when they would need an attorney and the associated costs to understand their rights, and even then, they could still lose if the tribunal applies copyright law incorrectly. Many will likely just choose to settle, setting them back financially and furthering a system where they can be taken advantage of.

Additionally, 60 days is an extremely short period of time for one to figure out all their rights in a legal proceeding. This is especially true in a “small claims” proceeding where hiring an attorney is not supposed to happen. Most people will simply not begin to understand how they have waived their 7th amendment, trial-by-jury rights as guaranteed by the Supreme Court for copyright disputes, or the lack of appeal and due process issues with the legislation. The 60-day opt out is far from fair, and far from creating the “voluntary” proceeding the bills’ proponents claim.

Creating a small claims tribunal is a noble idea. It has the best of intentions. But it is time to go back to the drawing board, bring all the stakeholders together, and create a system that can work for all. The CASE Act is not that solution.

Joshua Lamel is the executive director of the Re:Create Coalition.

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