New Copyright Protections and Enforcement Procedures

CASE Act

As part of the Consolidated Appropriations Act for 2021 signed into law on December 27, 2020, the Copyright Alternative in Small-Claims Enforcement (CASE) Act was passed.  The CASE Act establishes a tribunal called the “Copyright Claims Board” (CCB) within the U.S. Copyright Office to handle small-scale claims of copyright infringement. Copyright registrants can use this option to pursue smaller copyright infringement matters in a more streamlined and lower cost process.  The hearings may be conducted electronically, making CASE proceedings attractive and available to many small claimants.

The Board will be made up of three members, and will have two supporting attorneys. At least two Board members must preside at any hearing. Discovery is limited to interrogatories, requests for admissions and production of documents. Any other type of discovery requires a showing of good cause. An accused infringer will have 60 days after service of a claim to “opt out” which will result in dismissal of the claim without prejudice, requiring the claimant to file in District Court. However, there are incentives for both sides to use the CASE system: it should be faster and cheaper for a claimant, and it provides a low limit of potential liability for an accused infringer.

Awards for infringement of a single work are limited to $15,000 (instead of the $150,000 limit in District Court); and awards for infringement of multiple works in a single proceeding are limited to $30,000. The plaintiff can pursue actual or statutory damages up to the monetary limits, but willful infringement is not considered and cannot be used to enhance the damages award.  Attorney fees and costs are generally not available except in cases of bad faith, and in those cases are capped at $5,000 unless the conduct was particularly egregious.

A party can request reconsideration of a CCB decision if the party believes the CCB’s decision includes error.  If the CCB accepts the request, the decision is reviewed for clear error.  A party can seek review of the CCB’s decision with the Register of Copyrights.  The CCB decision is reviewed for abuse of discretion by the Register of Copyrights.  After review by the Register of Copyrights, a party can seek relief from the appropriate district court in very limited circumstances:  where the CCB decision resulted from fraud, corruption, or other misconduct, the CCB exceeded its authority or failed to provide a final judgment, or a default or failure to prosecute judgment was entered resulting from excusable neglect by the party seeking relief.

A CASE claim may be based on a pending copyright application prior to the issuance of a registration.  However, any decision on the claim will not be final until after the registration is obtained.  A CASE claim may not be filed without a copyright application submitted to the US Copyright Office. The CASE system may be attractive to owners of multiple copyrighted works who may be able to avoid the high cost of litigation in District Court. However, this may be restricted since the Register of Copyrights has the authority to place limits on the number of cases that the same claimant may be allowed to bring each year.

PLSA

The Protecting Lawful Streaming Act raises the criminal penalties for illegally streaming copyrighted material from a misdemeanor to a felony for certain defendants.   The felony penalty does not apply to unauthorized streamers in general.  Instead, the felony penalties will apply to a streaming service that is intentionally designed to stream copyrighted works without permission.  The PLSA was drafted to provide stronger penalties to go after bad actors, while sparing unsophisticated and small-time offenders (e.g., a fan live streaming a concert without authorization).

Sierra IP Law will provide further guidance on these laws as they are implemented, and advise and assist its clients in utilizing the new tools provided by the CASE act.  Contact Sierra IP Law for guidance with regarding to copyright matters.

© 2021 Sierra IP Law. The information provided herein is not intended to be legal advice, but merely conveys general information that may be beneficial to the legal professional community, and should not be viewed as a substitute for legal consultation in a particular case.