At the very end of 2020, Congress enacted new legislation that will provide a streamlined process for adjudicating small-claim copyright infringement cases.  The Copyright Alternative in Small-Claims Enforcement Act of 2020 (the “CASE Act”), included as part of the COVID-19 Relief Bill, establishes a new Copyright Claims Board (“CCB”) to oversee claims of copyright infringement that do not exceed $30,000.  Some see this is an efficient solution for those seeking to adjudicate minor copyright disputes, while others view this legislation as a potential avenue for attacks on everyday internet users who may lack the resources to track and opt out of these proceedings.
 
As we noted previously when this bill was passed by the House of Representatives, the Case Act does not create new substantive copyright claims or defenses.  Rather, litigants bringing claims before the CCB would generally be asserting the same types of copyright-infringement claims that we see now in federal court, and the same types of defenses (including fair use) would be available.  The goal of the Act is to change the economics of copyright litigation, by making it more affordable and efficient to pursue copyright claims. 
 
The CCB will have certain limitations that differentiate the adjudication process from that of a traditional copyright claim in federal court.  For example, the Copyright Claims Board will not be staffed by lifetime-tenured federal judges, but by a three-member panel of “Copyright Claims Officers,” each of whom must be a lawyer with at least seven years of legal experience.  (The panel will be recommended by the Register of Copyrights and appointed by the Librarian of Congress in consultation with the Register of Copyrights, to serve for staggered, renewable six-year terms.)  Additionally, the amount of monetary relief that can be awarded by the CCB is capped at $30,000, exclusive of attorneys’ fees and costs.  The CCB is also not empowered to grant injunctive relief in most circumstances.  
 
There are also several procedural differences that distinguish a proceeding before the CCB from a civil lawsuit.  Most notable is that participation is strictly voluntary.  Once notice is received by a respondent (i.e., the defendant) that a proceeding has been brought before the CCB, the respondent may opt out.  If that happens, the CCB will dismiss the proceeding without prejudice, allowing the claimant to file a civil lawsuit in a district court.  Additionally, the CASE Act contemplates online hearings rather than in-person appearances; discovery will be limited to certain written requests; and testimony will be restricted to statements of the parties and non-expert witnesses in most cases. 
 
Critics of the CASE Act, such as Electronic Frontier Foundation, lament the effect this new law may have on everyday internet users who do not have the resources to track the notices they receive and participate in the proceedings, while larger players will be unaffected and well-equipped to handle any volume of CCB proceedings.   Supporters of the Act, however, believe the new law will give artists the ability to better protect their work from online infringement, particularly during this time when content creators and small businesses are struggling.  Those who support the Act see this legislation as a win for all sorts of creatives, fromv traditional photographers and songwriters to bloggers and YouTubers. 
 
For better or for worse, the CASE Act is certain to change the way certain copyright claims are adjudicated.  We will continue to follow legal developments surrounding the CASE Act and provide updates as the first cases are brought before the CCB.