A Court for the “Creative Middle Class”

By Aaron Ogunro


In October, the U.S. House of Representatives passed a bill that would make recourse under U.S. copyright law more accessible. Currently, the only way to litigate copyright disputes is in federal court given its exclusive jurisdiction over copyright claims. The Copyright Alternative in Small-Claims Enforcement Act of 2019, or CASE Act (the “Act”), hopes to change that by allowing copyright claims to be resolved in a low-cost tribunal.

It has been the argument of many artists and creators that federal litigation is too expensive. Copyright lawsuits can cost hundreds of thousands of dollars to litigate, which disincentivizes new or non-established artists from pursuing their rights in federal court. The CASE Act hopes to give these types of creators an alternative method to enforce their rights.

The primary mechanism used in the CASE Act to make copyright dispute resolution more accessible is the creation of the Copyright Claims Board (the “Board”), which will be housed in the Copyright Office. Going through this Board, instead of a federal court, will make it easier for copyright owners to protect their copyrighted material in an affordable way. The process laid out in the Act is more streamlined than federal litigation and allows for remote participation, which helps bring down costs. It is important to note that not everyone will be able to bring their copyright claims to the Board. Lawsuits filed under this Act would have statutory damages capped at $15,000 per claim or $30,000 for the entire case. 

According to the Act, a claimant and a respondent’s participation in front of the Board is voluntary. In other words, a claimant whose claims meet the requirements under the CASE Act can still bring their claims in federal court if they prefer. On the other hand, a respondent can opt-out of proceedings in front of the Board if they do so within 60 days of receiving service. However, if a claimant brings claims in front of the Board and a respondent does not opt out, the parties are bound by the Board’s ruling unless fraud was present in the proceeding, the Board exceeded its authority, or the parties had an excusable reason for failing to take part in the proceeding. 

While the “creative middle class” will favor the passage of the CASE Act, there are many who oppose its passage for two main reasons. First, people fear that the average internet user will be harmed. By allowing a small claims court to oversee copyright proceedings, it will make it much easier for claimants to go after innocent users who may use a copyrighted work on Instagram or another social media platform. To the opponents of the Act, innocent users of copyrighted material will owe thousands of dollars in damages for relatively harmless acts or for acts that are in line with their First Amendment rights.

Second, there is a belief that the CASE Act will lead to an increase in copyright trolls. While there is no doubt that the Act will make it easier and cheaper for legitimate artists and creatives to seek relief, the passage of the Act will also mean that copyright trolls have those same benefits. It is argued that this streamlined proceeding will make it easier for copyright trolls to extract money from infringers and non-infringers. The mere threat of litigation from a troll can make the average American more willing to settle out of court when there is a possibility that they have done nothing wrong. 

The CASE Act has the potential to open the door to affordable dispute resolution for new and non-established artists and creatives, but there are valid fears that there are those who will wrongfully take advantage of this system. There is still time for these issues to be resolved considering a full vote must take place on the floor of the U.S. Senate before this bill can become law. However, considering the overwhelming bipartisan support for the bill in the House and the Senate Judiciary Committee, it is probably only a matter of time before this bill becomes law.

If you have questions regarding the copyrightability of your work or whether it is being infringed upon, please reach out to us to further discuss your issues.