Statutory damages for a willful copyright infringement for a single work can reach $150,000, but the average cost of litigating a copyright case is around $278,000. Even though copyright theft affects the majority of copyright owners, a small minority in reality enforce those rights and receive due compensation. As a potential solution, Hakeem Jeffries (D-NY) and Tom Marino (R-PA) have introduced the Copyright Alternative in Small-Claims Enforcement (CASE) Act.
The CASE act would create a Copyright Claims Board that, though not technically a court, would essentially adjudicate copyright infringement cases. Damages would be capped at $15,000 per infringed work and $30,000 per proceeding. A 30-day Opt Out procedure makes the process voluntary, but the threat of higher costs for litigation and the preclusory effect of the Board’s decision could incentivize defendants to agree to submit to the Board’s authority. If passed, this bill would not only help the obvious beneficiaries, rights holders, but also those who wish to use the works of others under fair use. According to Billboard, someone threatened with a cease and desist letter could file with the Board for a declaratory judgment that the use of the work in question does not violate copyright or qualifies as fair use.
Actual passage of the bill though is uncertain. With pressing issues such as tax reform, healthcare, and immigration on the forefront of the national agenda, the CASE Act faces inattention more than opposition.
Dallin Earl is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).