Last week, Senator John Kennedy (R-LA) introduced the Copyright Alternative in Small-Claims Enforcement Act of 2019, better known as the CASE Act. The bill was also introduced in the House of Representatives by Rep. Hakeem Jeffries (D-NY). The bill aims to create a copyright small claims tribunal that would operate inside the United States Copyright Office and be granted oversight into copyright cases with a smaller monetary value.
The idea is quite simple: Copyright litigation is often prohibitively expensive for both parties. Though the law allows for attorneys fees to be awarded, that’s only applicable in certain cases and is at the judge’s discretion. The Beastie Boys famously won $1.7 million in damages from Monster Energy but racked up more than $2.4 million in fees and only some of it that was granted.
The goal of such a small claims court would be to make it feasible for rightsholders to sue for smaller copyright infringements that, otherwise, would not be practical. This includes cases where the likely damages won will be smaller, such as cases without a timely copyright registration.
However, those with long memories might recall that we’ve been down this road before. In December 2016, Representative Judy Chu (D-CA) proposed a very similar piece of legislation known as the Fairness for American Small Creators Act (FASC Act). It too proposed a copyright small claims tribunal located inside the U.S. Copyright Office.
It, however, failed to make it out of its subcommittee.
So what’s different with the CASE Act? Not a lot. In fact, when you compare the two bills side by side, they look almost identical. That makes it easy to do the analysis as we did much of it two and a half years ago.
Still, it’s worth taking a deeper dive into the CASE Act to understand how it’s different from the FASC Act and what those changes might mean.
Note: At the time of this writing, the text of the Senate version of the CASE Act is not available on Congress.gov so we are analyzing the House version.
Comparing the CASE and FASC Acts
When comparing the two acts, it’s striking how similar they are. It’s not a particularly large shock as Rep. Chu is involved in the new bill and but it is still worth comparing the two bills side-by-side.
|CASE Act (2019)||FASC Act (2016)|
|Case Value||$15K/Work or $30K Total||$15K/Work or $30K Total|
|Board Members||3 Claims Officers & 2 Attorneys||3 Claims Officers & 2 Attorneys|
|Decisions||Majority of Officers||Majority of OfficersM|
Declaration of Non-Infringement
False DMCA Takedown
Declaration of Non-Infringement
Removal of CMI
False DMCA Takedown
|Representation||Attorney or Qualified Law Student||Attorney or Qualified Law Student|
|Appeals||Reconsideration and Review by Registrar||Reconsideration and Review by Registrar|
As you can see, there’s not much difference between them. Even the most obvious distinction, the removal of Copyright Management Information is a very subtle one as the FASC act included it in the same paragraph that mentioned the False DMCA Takedowns.
While there are smaller differences, such as the FASC Act giving parties just 14 days to request reconsideration and the CASE Act giving them 30, they are mostly immaterial. The CASE Act, for the most part, is the FASC Act, at least in terms of practical application.
But that doesn’t mean that there isn’t a crucial difference, just not one in the bill’s text itself.
The “Big” Difference
When it comes down to it, the biggest difference between the acts is the amount of time that has passed between them.
2016 and early 2017 was a very hectic time for copyright reform in the United States. Three years prior the US Copyright Office completed its review of remedies for copyright small claims and the House Judiciary Committee has the recommendations in mind as it completed its own investigation and proposed several reforms for the USCO, including a small claims system.
As a result of that, there was a major, if somewhat chaotic, push for reform in this area and the FASC Act was actually the second such bill introduced. Just five months prior, Rep Jeffries introduced his own version, confusingly called the CASE Act.
His bill didn’t favor much better than the FASC Act. In fact, it received significantly less attention from the press even though it largely had the same elements.
However, in 2019 there is no such divide. All of the Representatives and Senators that support this legislation are throwing their support behind the same act. This includes a strong showing of bipartisan support as both Democrats and Republicans are cosponsors of both the House and Senate versions.
Does this guarantee the act will pass? No. But it makes it much more likely than in 2016 when there was still a great deal of chaos and rushed legislation.
In the end, if you want all of the details about what is in the CASE Act (2019), simply go back and read the write up of the 2016 FASC Act.
While it may seem silly to reintroduce legislation that made so little progress last time, the atmosphere regarding copyright reform is much different now and now there is only one bill to consider, not two.
Though the act still has a long road ahead, especially given the opposition it will face, it definitely stands a better chance in 2019 than it did in 2016.
What happens next will be very interesting to watch.