The Copyright Claims Board is scheduled to begin accepting claims on June 16, 2022. What could this mean for you?
The Purpose of the Copyright Claims Board
Due in large part to the Internet, copyright infringement is rampant. In many cases, however, enforcing copyrights in federal court is prohibitively expensive.
To begin with, there is a $350 filing fee and an additional $52 administrative fee, for a total of $402, just to get a case underway. After that, there will be subpoenas, depositions, witness fees, transcript costs, etc. Moreover, because copyright litigation is complex, litigants usually find it necessary to hire an attorney. Add these additional expenses to the $402 filing fee, and a copyright owner can be looking at paying thousands of dollars just for a chance at enforcing his or her rights.
Under these circumstances, many infringement victims reasonably conclude that enforcing their rights against an infringer does not make good financial sense.
Congress enacted the CASE Act of 2020 to address the problem by creating an administrative tribunal that will hear small infringement claims. The new tribunal will have a lower filing fee and is supposed to be simple enough for a person to use without needing a lawyer.
Do you need to worry?
The definitions of copyright and copyright infringement are broad enough that everybody has probably been guilty of it at one time or another. A fair number of people have probably infringed copyrights multiple times. It is possible, for example, for an email message to be protected by copyright, so forwarding it without permission could be infringement. Photographs, memes, music, videos, essays, etc. are all potentially protected by copyright. Copying and sharing them on social media without permission could be infringement.
In some cases, a defense like fair use or implied license might provide some protection. Many people, however, misunderstand these defenses. They often interpret them much more broadly than is warranted.
The main reason copyright owners have not been suing infringers is not that they believe the infringers may have a valid defense. It’s that the cost of litigation has been too high, relative to the amount of damage suffered. The CASE Act is designed to reduce those costs considerably. Consequently, Internet users and other everyday people would be well advised to be a lot more cautious about sharing other people’s content.
Statutory damages
A lot of people have the misimpression that so long as they are not making a profit from infringing a copyright, they are safe from a lawsuit. This is not true. Neither profit nor intent to profit needs to be proven in order to win a copyright infringement case. A copyright owner does not have to prove actual damage. He or she can request, and be awarded, statutory damages instead. These are damages that are authorized by statute without need for proof that the infringement caused any actual harm.
The CASE Act authorizes the CCB to make an award of up to $15,000 statutory damages per work when a timely registered copyright has been infringed, and up to $7,500 per work when an unregistered one has been infringed. (The total that may be awarded in one proceeding is $30,000.)
Opting out
Because CCB proceedings are voluntary, you have the right to opt out if you are served a CCB claim. The copyright owner is then free to file the claim in federal court. The range of remedies is broader and the amount of damages that may be awarded is higher in federal court.
Deciding whether or not to opt out will require careful consideration of the strength of the claim(s) and defense(s), the likely costs that each side will incur, and the level of exposure to damages and attorney fee awards in each kind of proceeding.
Why everyone should learn about the CCB
If you are a copyright owner, there is a very good chance that people have been infringing it, especially if you have displayed or published it online. The new CCB might make it feasible for you to do something about it even if you do not have the financial resources to file an infringement lawsuit in court.
If, like nearly everybody, you have shared a photograph, drawing, meme, music, recording, story, article, commentary, or email message that someone else created, without their permission, there is a chance that somebody may file a CCB claim against you.
If you are an attorney, you should know about all available avenues of recourse for copyright owners whose works have been infringed so that you can advise and represent your clients competently. Because more everyday people are likely to sue and be sued for copyright infringement than ever before, even attorneys whose primary area of practice is not intellectual property law should familiarize themselves with this new agency and the claim process.
Educational courses
I will be teaching courses on the new Copyright Claims Board and the new “small claims” process for copyright infringement. Some will be for non-attorneys; others will be for attorneys and paralegals. The first of these is being offered for continuing legal education credit for attorneys and paralegals through Echion CLE. It is an online webinar that will be offered on two different dates:
June 22, 2022 (Register)
July 13, 2022 (Register).
A course for non-attorneys is in the works.
For more information, visit EchionCLE.com.
Need help with a copyright matter? Get in touch.