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Posted 18 August 2019; updated 18 October

US creators seek small claims procedure

CREATORS in the US are campaigning for a law to allow them to effectively enforce their copyright. The "CASE Act" before the US House of Representatives and Senate would set up a "Copyright Claims Board, which shall serve as an alternative forum in which parties may voluntarily seek to resolve certain copyright claims".

As photography blog petapixel.com observes, "the problem with the current copyright legal system in the US is that the vast majority of infringements against photographers are of relatively lower value (e.g. less than $3000) while the majority of lawyers dealing with infringements would only take on cases with relatively larger potential payouts (e.g. over $30,000)."

The procedure as currently proposed would apply only to works whose authors had applied for registration and not had it refused. (The US is the only country in the world that requires registration of copyright before it can be effectively enforced.) It would allow writers and photographers to claim for actual damages - or for "statutory damages" of not more than $15,000 for each work infringed. It does appear that authors - including photographers - who are based outside the US would be able to use it, if they meet that condition.

A full-fat court can award up to $150,000 in statutory damages per work if the infringement is found to be "wilful".

It does have a loophole: "Participation in a Copyright Claims Board proceeding shall be on a voluntary basis... the right of any party to instead pursue a claim, counterclaim, or defense in a district court of the United States or any other court, and to seek a jury trial, shall be preserved." That seems to mean that rich and powerful infringers could continue to bully creators by throwing a lot of expensive lawyers at us. As at present, if the work is registered and the court finds in your favour, the infringer has to pay both sides' legal fees: but you as claimant first have to front those fees.

And the proposal is meeting resistance from the usual suspects. Of course the astroturf campaigns funded by the internet giants waded in. And among the saner opponents is law professor Pamela Samuelson, who Tweeted: "Copyright trolls prey on ordinary people who don't know how to frame a reasonable defense and can't afford a lawyer. High statutory damage authorization will just encourage predatory behavior." Robert Levine - author of Free Ride: How Digital Parasites Are Destroying the Culture Business, and How the Culture Business Can Fight Back - responded: "Aren't creators ordinary people, too?"

The proposal in fact has safeguards against "copyright trolls". If a law firm, for example, "on more than one occasion within a 12-month period... pursued a claim, counterclaim, or defense before the Copyright Claims Board for a harassing or other improper purpose", it can be barred from bringing further cases and any pending cases struck out.

The legislation has a way to go, though it was passed by the Senate Judiciary Committee in July. The Copyright Alliance, which represents publishers' organisations as well as creators', welcomed this.

Authors in the UK faced similar hurdles to enforcing our copyright when cases involving copyright were ruled out of the "vanilla" Small Claims Court in 1999, possibly by accident. After a campaign initiated by the National Union of Journalists, a small claims procedure was launched in October 2012. This US proposal has a history that is nearly as glacial: it was back in 2013 that the US Register of Copyrights recommended that a small claims procedure be introduced in that country for the first time.

There's another site promoting the legislation at copyrightdefense.com.

  • Article updated 19/08/2019 to give maximum damages in a full-fat court.

Updated 18 October 2019

The CASE Act now has 130 co-sponsors in the House and 16 co-sponsors in the Senate, reports the American Society of Media Photographers. The legislation passed a stage of the process in the House Judiciary Committee by voice vote on 11 September.

That was despite the American Civil Liberties Union (ACLU) sending a confusing letter to the House Judiciary Committee on 10 September. Technically, this was objecting to restrictions on the right to appeal decisions of the Board. The take-home message, though, was that the Act "may harm the freedom of speech" - advancing the narrative of the internet corporations that anything that restricts copying works without payment does that. And it turns out that at least one such corporation has given shedloads to the ACLU.

As Mickey H. Osterreicher, General Counsel for the National Press Photographers Association, wrote in response: "The bottom line is that anyone notified of a claim can simply and easily opt-out if they do not wish to participate in this copyright infringement process. It's one thing for the ACLU to advocate for free speech and quite another to promote a free-for-all (in the literal and figurative sense) when it comes to copyrighted works."