JURIST Guest Columnist Brian L. Frye, conceptual law professor at University of Kentucky College of Law, explains the potential litigation pitfalls inherent to the CASE Act. . . .
It’s a truism that when lobbyists push a bill supposedly intended to help the disadvantaged, the real beneficiary is someone else. After all, lobbyists don’t work for free, and the disadvantaged can’t afford to hire them.
The Copyright Alternative in Small-Claims Enforcement (CASE) Act is no exception. At least, in theory, the CASE Act is intended to help small copyright owners enforce their copyrights by providing a low-cost alternative to litigating in federal court. But in reality, the CASE Act will just help predatory law firms extract even more unjustified settlements from unsuspecting businesses and charities.
The CASE Act would create a “small claims copyright court” in the Copyright Office, where small copyright owners could file infringement actions. But most small copyright owners don’t want or need any such thing. If someone infringes one of their copyrights, they just want that person to stop. Usually, a friendly letter does the trick. If not, a stern reminder is even more successful. If the infringer persists, the Copyright Act provides generous statutory damages, up to $150,000 per infringement. And copyright owners can recover actual damages from commercial infringers.
In other words, the CASE Act is a solution in search of a problem. Most copyright infringement disputes are resolved amicably by the parties, often without the involvement of lawyers. More often than not, they are the result of a misunderstanding. Sometimes, different creative communities have different expectations about use and attribution, and people need to negotiate a mutually agreeable compromise.
But the CASE Act is catnip for copyright trolls, or law firms that threaten meritless copyright infringement actions in order to extract settlements. For example, I am a board member of a grassroots charity focused on art film. About a year ago, we received a threatening email from a law firm. One of our interns wrote an article about one of the movies we were showing and illustrated it with a photograph from the internet, which appeared to be a publicity still for the movie. The law firm claimed to represent the photographer and said it would file a copyright infringement action for $150,000 unless we settled for $5,000. We immediately removed the image from our website, but the law firm didn’t care, they only wanted money.
As a copyright law professor, I advised the charity that using an image from a movie to illustrate an article about that movie is generally a non-infringing fair use and told the law firm to go pound sand. But many businesses and charities don’t have law professors offering free legal advice and are bullied into settlements.
The CASE Act will only make it cheaper and easier for copyright troll law firms to pursue meritless claims and enable them to extort settlements from blameless defendants. Trolls won’t even have to file an actual complaint in federal court, just what amounts to an administrative action before an agency appointee. That’s a mighty big stick, compared to a threatening letter. Add to it that asserting fair use is already a gamble for defendants, as federal judges often don’t understand the doctrine and are reluctant to apply it. Administrative officers are even more likely to rule in favor of copyright plaintiffs, even when equity favors the defendant.
The last thing we need is more copyright litigation. The CASE Act is a terrible idea. If it becomes a victim of the COVID-19 pandemic, it won’t be missed.
Brian L. Frye is a conceptual law professor (IP, PR, nonprofits, art law, legal history) at the University of Kentucky College of Law. Brian is also a “Securities artist” and a host of the Ipse Dixit Podcast.
Suggested citation: Brian L. Frye, The CASE Act Is for Trolls, JURIST – Academic Commentary, April 10, 2020, https://www.jurist.org/commentary/2020/04/brian-frye-case-act/
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at firstname.lastname@example.org
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