Copyright Claims Board About to Launch
by George H. Pike
A good friend of mine is a talented photographer. We have several of his framed pieces hanging up in our house, and he has had a few shows of his work in local galleries. I think he’s done the occasional commission work or taken wedding or similar photographs for friends, but it’s not his day job. I feel comfortable in saying that he does it more out of personal passion and skill than for economic return. But still, it is nice for him to get paid for his work.
He has reported times when he has found his work posted without his permission on various websites, usually for noncommercial purposes. This generally involved someone who liked one of his pictures and posted it to a different site or social media platform, rather than attempted to sell the work for their own personal gain or use it for other commercial purposes. For artists, however, who are more reliant on their artwork for their livelihood, these kinds of postings—which will almost always be considered copyright infringement—can have a significant impact on their income.
Pursuing a copyright infringement claim is neither an easy nor an inexpensive proposition. Similarly, defending against an allegation of copyright infringement is equally expensive, and the threat of being on the receiving end of an infringement claim has been seen as chilling creative and fair uses of copyrighted works.
In response to these concerns, in 2020, Congress passed the Copyright Alternative in Small-Claims Enforcement (CASE) Act to create a small claims court for copyright disputes. Known as the Copyright Claims Board (CCB), this court’s members will hear cases in which the maximum damages are no more than $30,000 and both parties agree to the CCB’s jurisdiction. The proceedings will be largely electronic, with electronic filing of documents and telephone or remote video procedures. Parties do not need an attorney to pursue or defend a case before the CCB, although they can be used if desired.
The CCB can hear cases involving claims of copyright infringement, as well as claims for a “declaration of noninfringement.” A declaration of noninfringement is an action taken by someone accused of infringing a copyrighted work to obtain an affirmative statement that they are not infringing, due to fair use, invalid copyright, or another defense. The CCB can also hear claims that the notice and takedown provisions of the Digital Millennium Copyright Act are being misrepresented or abused. The most famous (or infamous) such incident is the “dancing baby” case, in which the copyright holders of a Prince song filed a notice and takedown against a mother who posted a 29-second video of her toddler dancing with the barely audible song playing in the background. It was, in the view of many commentators, a fair use of the song, but it led to years of litigation.
The CCB is scheduled to be active by late June, although that date has changed before and could change again. However, concerns are being raised about how effective the CCB will actually be as a low-cost alternative to federal court litigation.
At the center of the concerns is the set of opt-out provisions built into the CASE Act (Title 17, Sections 1501–1511 of the U.S. Code). The act provides that participation in CCB proceedings is “voluntary” (17 U.S. Code § 1504 - Nature of proceedings) and that any party may “opt out” (17 U.S. Code § 1506 - Conduct of proceedings) of having the CCB adjudicate the dispute by simply filing a notice with the CCB within 60 days.
Critics of the CASE Act suggest that the opt-out provisions may render the CCB toothless in many situations. For example, if my friend the photographer submits a claim to the CCB—paying a $100 filing fee—the other party could simply opt out of the CCB’s jurisdiction. The only recourse the photographer would have is the same expensive and time-consuming federal court litigation option he has now. In most cases, the cost and complexity of federal litigation would prevent the photographer from pursuing the claim, leaving the infringement unchecked. Similarly, a person who wants to pursue a notice and takedown misrepresentation claim against a well-resourced social media platform could easily encounter the platform opting out of the CCB proceeding.
LIBRARIES AND ARCHIVES
Interestingly, the CASE Act provides that certain public libraries and archives can automatically opt out of all CCB proceedings. As a library director, I can see both advantages and disadvantages of such an opt-out. As noted previously, the ability to opt out allows a library to force any litigation into a federal court, which may discourage some or even most litigation. (Disclaimer: My library might not qualify for the pre-emptive opt-out ability due to its private school nature, and as part of a major research university, involvement in federal litigation—while never desirable—is not particularly unusual.) However, opting out may preclude the library’s ability to take advantage of the CCB under the right circumstances.
Another concern is the nature of the CCB’s proceedings and the ability to use an attorney. While the filing fees are lower and the damages are more limited, the CCB’s process has substantial similarities to federal litigation, including the already-complex questions of law under the Copyright Act, the discovery and evidence procedures that the CCB uses, and procedural rules that parallel litigation rules. This could be challenging for people without an attorney. Moreover, as previously mentioned, while the CCB allows people to appear without an attorney, it does permit them to engage an attorney to represent them if they wish. In cases in which as much as $30,000 in damages is at risk, it may well be advisable to have an attorney, but this is yet another area in which the playing field may not be level.
WORK IN PROGRESS
The CCB’s rules and procedures are still a work in progress. The Copyright Office is developing rules and regulations that must be published in the Federal Register before being implemented—a time-consuming process. The opt-out and attorney provisions are part of the CASE statute, however, and cannot be changed by rule or regulation. Eliminating those provisions would require Congress to act and may raise constitutional questions about rights to counsel and rights to access to the courts. The CCB will start its work one way or another, and it may take some time to see if it will effectively serve its purpose of providing a low-cost ability for photographers, bloggers and vloggers, documentarians, musicians, and other content creators to protect and defend their creations.