An Argument for the Case Act

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CASE = Copyright Alternative in Small-Claims Enforcement Act

From Medium:

I got an email from the Electronic Frontier Foundation, whose work I admire and mostly support. In the email the EFF asked its supporters to call their representatives and tell them not to support the CASE act.

Roughly, the CASE act would lay out a new way for copyright holders to seek payment when their work is infringed by establishing a small-claims-court-like board inside the US Copyright office. Damages would be limited to US$15,000 for each infringed work and a total of $30,000 per claim. The law is meant to protect infringers from much larger monetary claims and to give the infringed a way to obtain compensation without having to mount a prohibitively expensive lawsuit.

My work pays for my family’s shelter, food and education and for my ability to keep writing music. The CASE act would give me a simple, inexpensive way forward when someone in the US steals my work and refuses to engage with me to execute a license to use my copyrights.

The EFF says that the CASE act will spawn an industry of copyright trolls who will file frivolous claims in order to make money off innocent people. Does the threat of copyright trolling justify limiting my ability to obtain compensation when my work is stolen? As I hear it, the argument is that giving corporations the ability to collect damages from individual infringers who aren’t doing harm is so great an evil that we cannot craft legislation that would allow individuals to bring valid claims against corporate infringers who are doing real harm.

Let me tell you some of my experience as an artist who earns a living from their work and whose work is often infringed/appropriated/stolen by entities who include it in their commercial projects without permission or compensation and sometimes even try to pass it off as their own. My work is supposedly protected by copyright law but when such an infringement occurs I have little recourse beyond sending a stern letter or attempting to shame them on social media. I would like to explain why, from my perspective, the CASE act sounds like a good idea.

. . . .

When I say “stealing” I am not talking about the hobbyist who puts my music in their climbing video. I am not talking about the young dancer who posts a video of her routine to one of my songs. I am not talking about the gamer who posts videos of their gaming sessions with my music as soundtrack. I am not talking about the wedding photographer who has my music as the soundtrack to their photography slideshow. I am not talking about my work used in a meme. In fact, I am not talking about most of the 22,000 third-party videos on Youtube with my music in the background. I don’t see any of that as stealing, I see it as a compliment. It says to me “I love your work and I love it enough that I did my own work to it and here it is for the world to see”.

. . . .

While legally most of these uses of my songs and recordings are technically infringing, I do not view these uses of my music as problematic and I do not block upload of such videos to YouTube.

Every now and then I will stumble on a usage that I find offensive, like a homemade anti-abortion video. I’ve gone through the take-down process and written to the creator of a video asking them to remove my music. It’s offensive to my moral rights as an artist, which are unprotected in the US, but because the usage does infringe my master and synchronization rights, I can have it taken down. I haven’t been tested on this thankfully, but I would not bring suit against an individual unless they blatantly refused to remove my music.

So, what is the “stealing” that I would use the CASE act for?

– Stealing is when someone writes asking to use my work, doesn’t accept the fee my licensing agent quotes them and uses it anyway.

– Stealing is when my work is knowingly used inside another work and my work is passed off as someone else’s.

– Stealing is using my work in something, charging for it and not crediting me in the hope I won’t find out.

Financial losses aside, I find these last two kinds of thefts emotionally devastating. When I learn of a funded production that used my music as an integral part and didn’t credit me, I feel such incredible sadness. I feel bereft, like something I care deeply about was taken from me. I feel taken advantage of. My first response is often tears. An infringement, particularly one from a creative production — artists stealing from other artists — is profoundly shattering.

Link to the rest at Medium

Here’s a link to the proposed legislation (It’s not a law yet and may or may not become one in the future)

Although PG suspects some will misuse the CASE Act (just as some misuse a variety of other laws), as a general proposition, he thinks it’s a good idea.

For small-time infringers, an official document arriving from a government agency will, in many cases, prompt cessation of infringement, a little like a super takedown notice with teeth. Hopefully, the experience will also deter future copyright infringement by such individuals.

Since participation in proceedings under the CASE Act process is voluntary (a copyright owner can elect the CASE route instead of filing suit in federal court and the recipient of a notice that a CASE complaint has been filed can remove the matter to federal court), it’s not mandatory. As a practical matter, removing a matter that begins as a CASE complaint will require the hiring of an attorney by each side, however, so this may present an opportunity to settle the dispute.

As with any dispute resolution forum, crazy people will sometimes file CASE complaints against sane people who have committed no wrong. Judges and Hearing Officers generally have more experience than they would wish with crazy people, however, and PG would be surprised if summary dismissal of a CASE complaint brought by a crazy person would not be relatively easy to achieve.

Filing a prompt registration of the author’s copyright to a creative work is always a good idea (and probably does not require an attorney), but if CASE becomes a law, sending a copy of the author’s registered copyright to the book that allegedly infringes the work of another will likely be another way to resolve CASE complaints filed in bad faith.

Indeed, if a CASE complaint is filed in bad faith, the filing of a CASE counterclaim by the true author against the bad faith filer may serve as a deterrent against future bad behavior.

Is CASE likely to help an individual author whose work has been misappropriated by a large publisher,  motion picture studio, etc.?

PG suspects not. Such large organizations have ready access to counsel who will be competent in copyright litigation in federal court and will be quite likely to cause the CASE complaint to be removed to federal court.

Again, CASE isn’t a law and may never become the law. Those supporting CASE have tried and failed to get the legislation passed before. If CASE does become the law, the resulting law may be much different than the current bill PG linked to above and which provides the basis for PG’s commentary.

And finally, although PG is an attorney, he doesn’t provide legal advice in TPV blog posts. Those requiring legal advice will need to retain an attorney to provide such advice for them.

6 thoughts on “An Argument for the Case Act”

  1. PG, I read the Senate version you published earlier. It is an Article I court. The SCOTUS has a tradition of hostility to Article I courts; for example, the years of fighting Congress over the establishment of bankruptcy courts.

    As advertised,
    1) the rules are arcane, which is to say, the rules do not follow the rules of federal procedure;
    2) there is no jury; and
    3) a finding of ownership is not admissible in federal court nor in other proceedings in the small claims court! So why bother?

    It took years for Congress to beat out a bankruptcy court system that the SCOTUS did not reject. Why not follow that road? Establish copyright courts in every federal district with an automatic referent to the copyright court. Give the Federal Circuit exclusive appellate jurisdiction. And make a copyright court’s findings count for something.

  2. Does the threat of copyright trolling justify limiting my ability to obtain compensation when my work is stolen?

    No. But we are justified in examining any specific bill before Congress to determine likely outcomes, positive and negative effects, and net social benefit/loss. Doesn’t matter if it deals with music or widgets.

  3. The problem with this law is that there’s no strong deterrent against those filing false claims.

    The DCMA sounded like a great idea, until the big players hired bots to send takedowns to anything and everything that might possibly be. Which they could do because there was no penalty for a false DCMA demand, and there still isn’t …

    If they’re going to bother writing a law I just wish they’d cover all the bases and not leave rather blatant loopholes all through the dang thing.

    • Anonymous writes “The problem with this law is that there’s no strong deterrent against those filing false claims.”

      Defendants, who are being pursued by plaintiff trolls, are reserved the legal right to OPT-OUT from CASE proceedings.

      In addition, the CASE Act will discourage bad faith claims, counterclaims and defenses, and other abuses by granting the Copyright Claims Board the authority to not only dismiss frivolous claims, but also to:

      1) Award attorneys’ fees of up to $5,000, or more in extraordinary circumstances;
      2) Prohibit the bad faith actor from filing a case for one year; and
      3) Dismiss all pending cases filed by the bad faith actor.

      In addition, the CASE allows the Copyright Office to issue regulations preventing any one person or entity from bringing a certain number of cases in a year. There is no such restriction on the number of cases that can be filed in federal court.

  4. The thing that bothers me about the OP is that he wants to assert ownership for commercial uses – but also for uses by anyone he doesn’t like. He is quite willing to abandon his claim for things that he does like.

    Sorry, but such behavior, to my mind, should be stopped cold. You either assert your ownership in all cases of which you become aware – or you have effectively surrendered it.

    (Now, there is nothing wrong with asserting ownership – and then negotiating a licensing fee of $0.00 for uses that he approves of, and refusing a license to uses that he does not want made of his work. That would be entirely proper.)

    • I disagree, personally I don’t mind if people use my music in whatever way they like, but I would certainly consider asking people with strongly anti-Christian views to remove my music from their videos, or videos with explicit language or sexual content.
      Besides, it’s not practical to sue everyone who uses my music inappropriately, and since I own it, I should be able to decide when and who I’d like to sue if at all.

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