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CASE-ing the Joint: The Copyright Alternative in Small-Claims Enforcement Act (Guest Blog Post) – Technology & Marketing Law Blog

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By Guest Blogger Tyler Ochoa

[Eric’s note: Prof. Ochoa previously posted a 900 word summary of the CASE Act. This post does a 5,500 word deep dive into the law for those who want the details.]

On December 27, 2020, President Trump signed into regulation H.R. 133, the Consolidated Appropriations Act for Fiscal Year 2021 (CAA).  The headlines centered on the $600 aid checks that might be despatched to assist individuals who have misplaced jobs as a result of COVID-19 pandemic; however the large laws accommodates no less than 121 completely different Titles stuffed into 32 Divisions.  Among them is a single part (Division Q, Title II, part 212) enacting the Copyright Alternative in Small-Claims Enforcement Act, or CASE Act.  The CASE Act adds a brand new Chapter to the Copyright Act (Chapter 15) containing eleven sections.  Here is an in depth abstract of its provisions:

The Short Summary

The CASE Act creates the Copyright Claims Board, “an alternative forum in which parties may voluntarily seek to resolve certain copyright claims.”  [17 U.S.C. §1502(a)]  Eligible instances are infringement claims (and §512 misrepresentation claims) towards U.S. residents (besides any State or Federal governmental entity) through which the claimant seeks $30,000 or much less in damages.  [17 U.S.C. §1502(c)]  A respondent might “opt out” of a Board continuing inside 60 days of service, through which case the Board continuing is dismissed with out prejudice.  [17 U.S.C. §1506(i)]  Board proceedings are carried out solely by submission of paperwork and hearings carried out on-line, with none in-person look.  [17 U.S.C. §1506(c)]  The Board’s dedication is binding on the events, and if a celebration fails to adjust to the dedication, it could be enforced by having it confirmed in a federal District Court.  [17 U.S.C. §1508(a)]

Background: Existing Remedies for Copyright Infringement

(Readers who’re acquainted with the prevailing remedial provisions of U.S. copyright regulation might skip to the following part.)

Under current regulation, copyright infringement actions will be litigated solely in federal district court docket.  [28 U.S.C. §1338(a)]  The Copyright Office should both have registered the work or denied registration earlier than a lawsuit could also be filed.  [17 U.S.C. §411(a); Fourth Estate Benefit Corp. v. Wall-Street.com]  Remedies for copyright infringement embrace preliminary and everlasting injunctions [17 U.S.C. § 502]; and both precise damages plus the infringer’s income (to the extent they don’t overlap) [17 U.S.C. §504(b)] or statutory damages [17 U.S.C. §504(c)].  If a plaintiff elects statutory damages, it could recuperate a single award of damages per work infringed of between $750 and $30,000.  [17 U.S.C. §504(c)(1)]  If the plaintiff proves the infringement was willful, the utmost is became greater to $150,000 per work; if the defendant proves the infringement was harmless, the minimal is lowered to $200 per work.  [17 U.S.C. §504(c)(2)]  The prevailing occasion is eligible to restoration its prices and attorneys’ charges, within the court docket’s discretion.  [17 U.S.C. §505]  However, the plaintiff can not recuperate statutory damages or attorneys’ charges except it registered the work earlier than the infringement commenced, or (for infringement of a broadcast work) inside three months after first publication.  [17 U.S.C. §412]

Internet service suppliers (ISPs) have a “safe harbor” from financial damages for user-posted content material in the event that they adjust to a number of circumstances, together with the “notice-and-takedown” process of 17 U.S.C. §512.  If a copyright proprietor sends the ISP a discover of claimed infringement, the ISP should expeditiously take away or disable entry to the allegedly infringing content material.  The ISP then notifies the consumer, who has a chance (hardly ever exercised) to ship a counter-notification.  If there’s a counter-notification, the ISP should notify the copyright proprietor and, absent a lawsuit, the ISP should restore the challenged thing inside 10 to 14 days after the counter-notification.  If the copyright proprietor information a lawsuit towards the consumer, nevertheless, then the challenged thing should stay taken down.  [17 U.S.C. §512(g)(2)(C)]

The value of litigation in federal court docket is excessive: discovery and pre-trial preparation can simply value upward of $10,000 per 30 days.  Unless a plaintiff has registered its copyrights and is eligible to recuperate statutory damages and attorneys’ charges, most attorneys are unwilling to file an infringement declare on a contingent payment foundation.  And even when a lawyer is inclined, it hardly ever makes financial sense to file an infringement declare if the highly anticipated restoration is only some thousand money.  The function of the CASE Act is to supply a cheaper administrative various to full-blown litigation in federal court docket.

The Copyright Claims Board

The Copyright Claims Board will encompass three full-time Copyright Claims Officers, assisted by no less than two full-time Copyright Claims Attorneys.  [17 U.S.C. §1502(b)]  The Officers should every have no less than 7 years of authorized experience; two of them should be skilled in copyright litigation or adjudication, and one should be skilled in various dispute decision.  [17 U.S.C. §1502(b)(3)(A)]  The Officers are appointed by the Librarian of Congress (on the advice of the Register of Copyrights) and can serve staggered 6-year phrases.  [17 U.S.C. §1502(b)(1),(5)] The Attorneys are employed by the Register of Copyrights and should every have no less than three years of experience in copyright regulation.  [17 U.S.C. §1502(b)(3)(B)]  The Board shall start operations inside one 12 months of enactment (by December 27, 2021) [CAA, §212(d)(1)], besides that the Register has the discretion to increase the deadline as much as 180 days for good trigger.  [CAA, §212(d)(2)]

Participation in a continuing earlier than the Board is “voluntary” within the sense that an individual claiming copyright infringement (or non-infringement) might select to begin a continuing with the Board or to file a lawsuit in federal court docket as an alternative.  [17 U.S.C. §1504(a)]  The respondent towards whom a declare is made has a 60-day interval after service inside which to “opt out” of the Board continuing in writing, through which case the Board continuing is dismissed with out prejudice.  [17 U.S.C. §1506(i)]  If the defendant fails to “opt out” in writing, nevertheless, then the continuing turns into an “active” continuing, and the respondent is legally sure by the dedication of the Board.  [Id.]  Obviously, this makes the provisions on service and default extraordinarily necessary.  (For service and default, see the part titled “Initiating the Proceeding” under.)

The Register is required to undertake a regulation allowing libraries and archives to prospectively and preemptively decide out of all Board proceedings, with out paying any payment to take action.  [17 U.S.C. §1506(aa)]

Permissible Claims

The Board might hear and decide the next claims, counterclaims, and defenses [17 U.S.C. §1504(c)]:

  • A declare for copyright infringement, what place the entire financial restoration sought doesn’t exceed $30,000 [17 U.S.C. §1504(e)(1)(D)];
  • A declare for a declaration of non-infringement;
  • A declare under 17 U.S.C. §512(f) for misrepresentation in a discover of claimed infringement or a counter-notification searching for to revive eliminated or disabled thing, topic to the $30,000 cap;
  • A counterclaim for infringement or §512 misrepresentation, or for breach of contract, supplied it adds no extra events and that it arises out of the identical transaction or incidence as one of many above, topic to the $30,000 cap;
  • A authorized or equitable protection to any of the above claims or counterclaims.

Joinder of a number of claims, claimants, and respondents is permitted, supplied the claims come up out of the identical infringing activity or steady course of infringing actions, and the combination financial restoration doesn’t exceed the $30,000 cap.  [17 U.S.C. §1504(c)(6)]

Defining a “small claim” as one searching for $30,000 or much less was controversial.  As a outcome, it’s startling to search out within the statute a mechanism for altering the definition with out any affirmative motion by Congress.  After three years have handed from date the primary dedication points, the Register of Copyrights might “conduct a rulemaking to adjust the limits on monetary recovery or attorneys’ fees and costs that may be awarded under this chapter.”  [17 U.S.C. §1510(a)(2)(A)]  The Register should submit the proposed rule to Congress, and the rule shall take impact 120 days later except Congress votes to disapprove the rule.  [17 U.S.C. §1510(a)(2)(B)]

The Register can be required to undertake laws “for the consideration and determin­ation … of any claim … in which total damages sought do not exceed $5000.”  [17 U.S.C. §1506(z)]  The Regulation might present that such claims are heard by a single Claims Officer as an alternative of your complete Board.  [Id.]

Excluded Claims

The Board can not decide claims pending earlier than a court docket of competent jurisdiction, except the court docket grants a keep to allow the declare to be proceed earlier than the Board.  [17 U.S.C. §1504(d)(2)]  However, apart from any class actions [17 U.S.C. §1507(a)], a U.S. District Court “shall issue a stay of proceedings … with respect to any claim brought before the court that is already the subject of a pending or active proceeding before the Board.”  [17 U.S.C. §1509(a) (emphasis added)]  These dueling provisions lead to a forum-shopping race to be the primary to file; nevertheless, as famous above, the respondent in a Board continuing might “opt out” in writing, leading to a dismissal with out prejudice [17 U.S.C. §1506(i)], which might disable the necessary keep and permit a subsequently filed case in District Court to proceed.

The Board can not hear claims by or towards any Federal or State governmental entity.  [17 U.S.C. §1504(d)(3)]  The Board can not hear claims towards any particular person or entity residing outdoors the United States, apart from counterclaims towards an individual or entity that initiated the continuing.  [17 U.S.C. §1504(d)(4)]  In different phrases, the CASE Act does nothing to handle the oft-asserted downside of foreign-based infringement (willful or in any other case).

In addition, because the Act expressly refers to infringement claims “under section 106,” leaving part 106A conspicuous by its absence, the Board can not hear claims for infringement of ethical rights under the Visual Artists Rights Act (VARA) [17 U.S.C. §106A], besides maybe as a permissible counterclaim.

If a celebration to an energetic continuing receives discover of a pending class action arising out of the identical transaction or incidence because the Board continuing, it could both decide out of the class action, or it could search dismissal of the continuing earlier than the Board.  [17 U.S.C. §1507(b)(2)]

Pre-Filing Procedure

As famous above, with restricted exceptions, an infringement declare will not be filed in federal District Court till the Register of Copyrights has both issued a registration cert, or registration has been refused.  [17 U.S.C. §411(a); Fourth Estate Benefit Corp. v. Wall-Street.com]  The CASE Act lifts this rule for claims in a continuing earlier than the Board: the copyright proprietor should file a accomplished utility for registration (together with the payment and deposit copies) earlier than “asserting” a declare, however the case might proceed if “a registration certificate has either been issued or has not been refused.”  [17 U.S.C. §1505(a)(1),(2)]  A claimant “shall be eligible to recover” precise damages and income or statutory damages so long as the appliance requirement is met, however the Board “may not render a determination” of the declare till the registration cert points.  [17 U.S.C. §1505(b)]  Although the claimant ought to file the registration utility earlier than the declare is filed, using the phrase “asserted” signifies that the appliance could also be filed after the declare is filed, as a part of the post-filing process to find out whether or not a declare is “compliant.”  (See “Initiating a Proceeding” under.)  This is confirmed by a provision directing the Register to expedite registration (or denial) for “an unregistered work that is at issue before the Board.”  [17 U.S.C. §1505(d)]

If a declare is introduced towards an on-line service supplier that could be topic to the protected harbor in part 512(b), (c), or (d), then the declare “shall be considered noncompliant” except the claimant certifies that it notified the service supplier and the service supplier didn’t take away or disable entry to the allegedly infringing thing expeditiously.  [17 U.S.C. §1506(f)(1)(C)(i)]  If a declare is filed with out the required certification, the Board shall instruct the claimant how you can comply.  [17 U.S.C. §1506(f)(1)(C)(ii)]  Thus, the notice-and-takedown process of 17 U.S.C. §512(c)(3), which applies to subsections (b) and (d) as well, is actually a procedural prerequisite to a Board continuing (analogous to exhaustion of administrative cures).  A non-compliant declare can not proceed to service and should be dismissed with prejudice (see “Initiating a Proceeding”), so if the service supplier removes or disables entry to the allegedly infringing thing, then the declare towards the service supplier should be dismissed with out prejudice.  A Board continuing towards the consumer that posted the fabric, nevertheless, can proceed.  For functions of the §512 notice-and-takedown process, submitting a declare earlier than the Board qualifies as “an action seeking a court order to restrain the subscriber from engaging in infringing activity” inside the which means of §512(g)(2)(C) [17 U.S.C. §1507(d)], which means that the fabric taken down should stay taken down in the course of the pendency of the continuing towards the consumer to ensure that the ISP to qualify for the protected harbor.

The statute of limitations for commencing a continuing earlier than the Board is identical as for civil litigation: three years after the declare accrued.  [17 U.S.C. §1504(b)(1)]  Presumably this might be interpreted in the identical method because the corresponding provision for infringement lawsuits [17 U.S.C. §507(b)], together with the entire current ambiguities relating to the invention rule.  [See my previous post on that topic.]  If a continuing is commenced earlier than the Board, it tolls the statute of limitations for submitting a lawsuit in District Court “during the period in which the proceeding is pending.”  [17 U.S.C. §1504(b)(2)]

Initiating a Proceeding

A continuing earlier than the Board is commenced by submitting a declare with the Board, accompanied by a submitting payment.  [17 U.S.C. §1506(e)]  The quantity of the payment might be set by the Register, however it can not exceed the payment for submitting in a federal District Court.  [17 U.S.C. §1510(c)]  The declare should embrace an announcement of fabric info and it should be licensed to be truthful and correct.  [17 U.S.C. §1506(e); §1506(y)(1)]

The declare is reviewed by a Copyright Claims Attorney to find out whether or not it complies with the statute and relevant laws.  If it does, the claimant is notified and instructed to proceed with service.  [17 U.S.C. §1506(f)(1)(A)]  If it doesn’t comply, the claimant is notified and given 30 days to file an amended declare.  [17 U.S.C. §1506(f)(1)(B)]  If the declare nonetheless doesn’t comply, the claimant is given a second alternative to amend.  After that, if no compliant declare has been filed, the declare is dismissed with out prejudice.  [Id.]  Counterclaims are topic to the identical evaluation.  [17 U.S.C. §1506(f)(2)]  The Board additionally might dismiss a declare with out prejudice if it determines the declare is unsuitable for dedication for any cause, together with: (A) failure to hitch a needed occasion; (B) lack of a vital witness, proof, or professional testament; or (C) the declare requires the dedication of a pertinent challenge (of regulation or truth) that “could exceed” both “the number of proceedings that the [Board] could reasonably administer or the subject matter competence of the [Board].”  [17 U.S.C. §1506(f)(3)]

Once the declare has been deemed to be compliant, the claimant has 90 days to file with the Board proof of service of discover on the respondent.  [17 U.S.C. §1506(g)]  The discover should prominently state that, by not opting out inside 60 days, the respondent loses the chance to have the dispute determined by a court docket, and waives the proper to a jury trial.  [17 U.S.C. §1506(g)(1)]  The method of non-public service on a person is identical as supplied in Federal Rule of Civil Procedure 4(e) [17 U.S.C. §1506(g)(4)].  A company, partnership, or unincorporated affiliation might designate an agent to obtain service of discover of claims filed towards it with the Board; in any other case, service could also be made in a fashion supplied by State regulation. [17 U.S.C. §1506(g)(5)]  (The choice of utilizing the technique of service laid out in FRCP 4(h) for such events is conspicuously absent.)  Alternatively, the claimant might request a waiver of service by mail or “other reasonable means,” in a fashion that’s related, however not similar, to the corresponding provision in FRCP 4(d).  [17 U.S.C. §1506(g)(6)]  If a claimant fails to serve a respondent inside 90 days of being notified that the declare is compliant, then the declare is dismissed with out prejudice.  [17 U.S.C. §1506(v)(1)]

Once served, the respondent has 60 days inside which to submit a written discover opting out of the Board continuing.  [17 U.S.C. §1506(i)]  In “exceptional circumstances,” the Board might prolong the 60-day interval “in the interests of justice.”  [Id.]  If the respondent opts out in a well timed method, the continuing is dismissed with out prejudice.  If the respondent does not decide out in a well timed method, then the continuing turns into an “active” continuing, and the respondent is legally sure by the Board’s subsequent dedication.  [Id.]

If the continuing has turn out to be “active,” however the respondent has failed to look or has ceased taking part (missed a number of deadlines with out justifiable trigger), the Board might enter a default dedication.  [17 U.S.C. §1506(u)]  If the Board finds that the proof is enough to assist a discovering in favor of the claimant, it prepares a proposed default determi­nation and sends it to the respondent, who has 30 days to oppose it with proof or extra data.  [17 U.S.C. §1506(u)(1),(2)]  If the respondent does so, then the Board shall take into account it and the case proceeds to a closing dedication.  [17 U.S.C. §1506(u)(3)]  If the respondent fails to reply, the default dedication turns into the ultimate dedication.  [17 U.S.C. §1506(u)(4)]

If the continuing has turn out to be “active,” however the claimant fails to proceed (has missed a number of deadlines with out justifiable trigger), the Board should give the claimant 30 days’ discover to reply.  After contemplating any such response, the Board might enter a closing dedication dismissing the declare (presumably with prejudice).  [17 U.S.C. §1506(v)(2)]

Procedure

The Act contemplates that there might be a substantive written response (defenses and counterclaims) to a declare, however it doesn’t specify a deadline by when such a response should be filed.  Presumably, both the Register will impose such a deadline within the laws that it’s instructed to undertake [17 U.S.C. §1510(a)(1)], or else the Board will impose such a deadline as a part of the preliminary schedule it points after the case has turn out to be an “active” continuing.  [17 U.S.C. §1506(k)]  As an incentive to waive service, a respondent that does so should be given an extra 30 days to file any substantive responses (defenses and counterclaims) to the declare.  [17 U.S.C. §1506(g)(7)(B)]  Confusingly, this extension of time apparently does not apply to the 60-day opt-out interval.  Upon a written request, a celebration that information a declare or counterclaim might voluntarily dismiss it, with out prejudice, earlier than the respondent information its substantive response.  [17 U.S.C. §1506(q)]

One main benefit of a Board continuing is that it takes place solely “by means of written submissions, hearings, and conferences carried out through internet-based applications and other telecommunications facilities,” “without the requirement of in-person appearances by parties or others.”  [17 U.S.C. §1506(c)(2),(1)]  The sole exception is that the Board might organize for the submission of “physical or nontestimonial evidence” that’s “material” and can’t be furnished to the Board electronically.  [17 U.S.C. §1506(c)(2)]  The Act specifies {that a} occasion could also be, however isn’t required to be, represented by an legal professional (or a regulation pupil performing professional bono that’s in any other case certified to signify events).  [17 U.S.C. §1506(d)]  Given the complexity of the statute, nevertheless, it’s troublesome to think about {that a} occasion might signify themselves successfully with out the help of an legal professional (or certified regulation pupil).

The Act supplies for discovery “limited to the production of relevant information and documents, written interrogatories, and written requests for admission.”  [17 U.S.C. §1506(n)]  Upon request and for good trigger, the Board might approve “additional relevant discovery, on a limited basis, in particular matters,” and it could request particular data and paperwork from events and “voluntary submissions from non-participants.”  [17 U.S.C. §1506(n)(1)]  In different phrases, there are not any depositions as a matter in fact, and the Board might not challenge any subpoenas to non-parties.  (Whether the Board might approve a deposition as “additional relevant discovery” is unclear.)  The Board might challenge a protecting order to restrict the disclosure of confidential data.  [17 U.S.C. §1506(n)(2)]  For good trigger, and after discover and a chance to be heard, the Board might draw an hostile inference “against a party who has failed to timely provide discovery materials in response to a proper request.”  [17 U.S.C. §1506(n)(3)]

The formal guidelines of proof don’t apply.  The Board might take into account (1) documentary and different non-testimonial proof; and (2) testimonial proof submitted under penalty of perjury.  [17 U.S.C. §1506(o)]  Such testimonial proof ordinarily is submitted in written kind; however the Board has discretion to carry hearings (by digital means) to obtain oral testament and oral argument.  [17 U.S.C. §1506(o),(p)]

Unless the events settle [17 U.S.C. §1506(r)], the Board should make factual findings primarily based on a preponderance of the proof [17 U.S.C. §1506(s)] and challenge a written dedication explaining the factual and authorized foundation [17 U.S.C. §1506(t)(1)(B)], which “shall be made available on a publicly accessible website.”   [17 U.S.C. §1506(t)(3)]

Remedies

As with current cures, the Board is empowered to award EITHER precise damages and the defendant’s income OR statutory damages, topic to the next limitations [17 U.S.C. §1504(e)(1)(A)]:

  • The Board might award precise damages and income under part 504(b), “taking into consideration … whether the infringing party has agreed to cease or mitigate the infringing activity”; or
  • The Board might award statutory damages under part 504(c), besides that the Board “may not make any finding that, or consider whether, the infringement was committed willfully.” If the copyright was well timed registered under part 412, the Board might award as much as $15,000 for every work infringed, topic to the utmost complete award of $30,000.  If the copyright was not well timed registered under part 412, the Board should award as much as $7,500 for every work infringed, topic to a most complete award of $15,000 “in any 1 proceeding.”

All of the above is topic to the limitation {that a} occasion “may not seek or recover” a complete of greater than $30,000 “in any single proceeding.”  [17 U.S.C. §1504(e)(1)(D)]

The provisions on statutory damages are an enormous change from current regulation.  Under current regulation, a copyright proprietor can not recuperate statutory damages except it registered the copyright earlier than the infringement commenced or (for infringements of a broadcast work) inside three months after first publication.  [17 U.S.C. §412]  The CASE Act makes it clear {that a} copyright proprietor can recuperate statutory damages of as much as $7,500 for every work infringed with out having registered the work prematurely (though an utility to register should nonetheless be submitted to “assert” a declare earlier than the Board, and the registration should challenge earlier than a closing dedication will be rendered).  Of course, a respondent might “opt out” of the Board continuing on the outset and pressure the plaintiff to file a lawsuit in federal court docket, what place the plaintiff will nonetheless be topic to the prevailing limits on recovering statutory damages.  Thus, educated respondents will be capable to protect the prevailing limits on statutory damages by opting out, whereas unsophisticated respondents will probably find yourself paying statutory damages that in any other case might not have been recovered in federal District Court.

Moreover, there’s nothing to stop a copyright proprietor from evading the financial limits by commencing a number of proceedings towards a single defendant, besides that the Register “may establish regulations relating to the permitted number of proceedings each year by the same claimant.”  [17 U.S.C. §1504(g) (emphasis added)]  It is unclear whether or not the Register might be allowed to restrict the variety of proceedings towards a single defendant, whereas nonetheless allowing a number of proceedings towards completely different defendants.  Unless the Register is permitted to take action, this loophole might largely defeat the aim of limiting the entire financial restoration earlier than the Board.  Again, nevertheless, refined defendants will be capable to select their most well-liked discussion board by “opting out” on the outset.  In addition, if a celebration commences a number of proceedings in a 12-month interval for an improper function, or and not using a foundation in regulation or truth, it could be barred from initiating a declare earlier than the Board for an extra 12-month interval.  [17 U.S.C. §1506(y)(3)]

There is no less than one important ambiguity.  Statutory damages “shall be determined in accordance with section 504(c),” which supplies for a single award of statutory damages of between $750 and $30,000 per work infringed.  [17 U.S.C. §504(c)(1) ]  Under the CASE Act, the utmost award of statutory damages per work infringed is $15,000 (if the work was well timed registered) or $7,500 (if not well timed registered).  But what in regards to the minimal?  Section 504(c)(2) supplies that if the court docket finds “that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.”  [17 U.S.C. §504(c)(2)]  But the CASE Act supplies that the Board “may not make any finding that, or consider whether, the infringement was committed willfully.”  [17 U.S.C. §1504(e)(1)(A)(ii)(III)]  Does this restriction stop the Board from contemplating or figuring out whether or not the infringement was harmless?  On the one hand, this restriction was probably meant merely to stop growing the utmost award of statutory damages for willfulness.  [H.R. Rep. 116-252, at 25]  On the opposite hand, how can a court docket take into account whether or not a celebration acted innocently with out simulta­neously contemplating the converse, whether or not that occasion acted willfully?  If harmless infringement can’t be thought-about, that would depart the minimal the Board can award at $750 per work infringed, as an alternative of $200.  The House Report states that the Board can “take into account … any clause or provision of 17 U.S.C. § 504(c) not specifically prohibited by the Act.”  [H.R. Rep. 116-252, at 30]  Thus, the higher studying is that the Board might take into account harmless infringement and decrease the minimal quantity of statutory damages accordingly.

There can be a weird provision regarding election of cures: “at any time before final determination is rendered, … the claimant or counterclaimant shall elect— (i) to recover actual damages and profits or statutory damages … or (ii) not to recover damages.”  [17 U.S.C. §1504(e)(1)(B)]  Existing regulation already supplies for an election between precise damages and income, on the one hand, and statutory damages on the opposite [17 U.S.C. §504(a), §504(c)(1)]; however why would a claimant who bothered to begin a continuing ever elect “not to recover damages”?  Perhaps this necessary election is one way or the other meant to advertise the potential of settlement; however one imagines it would merely add an additional procedural step to Board proceedings that can by no means lead to an actual distinction within the final result

The Board can not challenge an injunction, however the Board’s dedication “shall include a requirement to cease conduct” if a celebration agrees to stop activity discovered to be infringing, “including removing or disabling access to, or destroying, infringing materials,” and the agreement is mirrored within the document.  [17 U.S.C. §1504(e)(2)(A), (B)]   (A celebration might equally conform to stop sending a takedown discover or counter discover under part 512.)  Both damages cures permit the Board to think about whether or not the infringer “has agreed to cease or mitigate the infringing activity.”  [17 U.S.C. §1504(e)(1)(A)(i), §1504(e)(1)(A)(ii)(III)]  In different phrases, cooperative respondents can conform to stop infringing, and they’ll probably be topic to smaller awards; whereas respondents who keep that their use is truthful regardless of an hostile dedication might be hit with bigger awards.  Of course, intransigent infringers can fail to reply in any respect and undergo a default dedication; and intransigent however refined infringers can decide out prematurely, forcing the copyright proprietor to file a lawsuit in federal District Court as an alternative.

In basic, events should bear their very own attorneys’ charges.  [17 U.S.C. §1504(e)(3)]  However, if the Board determines “that a party pursued a claim, counterclaim, or defense for a harassing or other improper purpose, or without a reasonable basis in law or fact,” then the Board shall award affordable prices and attorneys’ charges to any adversely affected occasion, in an quantity of no more than $5,000 [17 U.S.C. §1506(y)(2)], besides if a celebration seems professional se (and not using a lawyer), the award is proscribed to prices solely, in an quantity of no more than $2,500.  [17 U.S.C. §1506(y)(2)(A)]  These quantities are along with the utmost complete damages of $30,000.  [17 U.S.C. §1504(e)(1)(D)]  In “extraordinary circumstances,” resembling if a celebration has demonstrated a sample or apply of unhealthy religion conduct, the Board might award prices and attorneys’ charges in extra of the boundaries.  [17 U.S.C. §1506(y)(2)(B)]  If a celebration has “pursued a claim, counterclaim, or defense … for a harassing or other improper purpose, or without a reasonable basis in law or fact” greater than as soon as in a 12-month interval, then the Board might bar that occasion from initiating a declare earlier than the Board for an extra 12-month interval.  [17 U.S.C. §1506(y)(3)]

Post-Determination Procedure

Within 30 days after the ultimate dedication points, a celebration might request reconsideration in writing, “if the party identifies a clear error of law or fact material to the outcome, or a technical mistake.”  [17 U.S.C. §1506(w)]  After offering the opposite events a chance to reply, the Board might both deny the request or amend the dedication. [Id.]

If the Board denies the request for reconsideration, inside 30 days the occasion might pay an extra payment and request evaluation by the Register of Copyrights.  [17 U.S.C. §1506(x)]  Such evaluation is proscribed to “whether the … Board abused its discretion in denying reconsideration of the determination.”  [Id.]  After offering the opposite events a chance to reply, the Register might both deny the request or remand the continuing to the Board to rethink specified points and challenge an amended dedication. [Id.]  ‘Such amended closing dedication shall not be topic to additional consideration or evaluation” by the Register or the Board.  [Id.]

A closing dedication by the Board shall preclude litigation of the claims or counter­claims asserted and eventually decided by the Board.  [17 U.S.C. §1507(a)]  However, the deter­mination does not preclude litigation of the identical or related problems with regulation or truth with respect to claims that had been not asserted and eventually decided by the Board.  [17 U.S.C. §1507(a)(1)]  A dedication of copyright possession by the Board does not have any preclusive impact in another motion or continuing.  [17 U.S.C. §1507(a)(2)]  Failure or incapability to say a counterclaim does not preclude assertion of that counterclaim in a subsequent motion or continuing.  [17 U.S.C. §1507(e)]  Submissions or statements made to the Board might not be cited or relied upon in, or function the premise for, any motion or continuing under Title 17.  [17 U.S.C. §1507(c)]  Finally, apart from its restricted preclusive impact, a dedication by the Board might not be cited or relied upon as authorized precedent in another motion or continuing.  [17 U.S.C. §1507(a)(3)]

Within 90 days after the date of the dedication (or the post-determination rethink­ation), a celebration might search an order from a U.S. District Court vacating, modifying, or correcting the dedication.  [17 U.S.C. §1508(c)(1)]  The solely grounds for such a problem are: (A) fraud, corruption, misrepresentation, or different misconduct; (B) the Board exceeded its authority or didn’t render a closing dedication; or (C) a default or failure to prosecute was as a result of excusable neglect.  [17 U.S.C. §1508(c)(1)]  If a celebration has didn’t pay damages or in any other case adjust to the aid awarded, then inside one 12 months of the date of the dedication (or the post-determination reconsideration), the aggrieved occasion might apply to a U.S. District Court for an order and judgment confirming the aid awarded.  [17 U.S.C. §1508(a)]  In both case, the occasion making the problem or the aggrieved occasion should present discover to all different events to the dedication.  [17 U.S.C. §1508(b)(1), §1508(c)(2)(A)]  If the court docket confirms the aid awarded, then the occasion that didn’t comply should pay the affordable bills of the court docket continuing, together with attorneys’ charges.  [17 U.S.C. §1508(a)]

Is this Constitutional?

The legislative historical past of the CASE Act [H.R. Rep. 116-252] explains a number of options of the laws that had been designed to guarantee that the choice small-claims process complies with the U.S. Constitution.  First, Congress has the ability to enact the laws under the Patent and Copyright Clause: “to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” [Art. I, §8, cl. 8]  Second, the Copyright Claims Officers are “inferior officers” inside the which means of the Appointments Clause [Art. II, §2, cl. 2], as a result of they’re appointed by and will be fired by the Librarian of Congress, a “Head of Department” that’s topic to Senate approval.  [H.R. Rep. 116-252, at 20-21]  Third, each the Seventh Amendment proper to jury trial and the proper to have one’s declare heard by an Article III court docket will be waived “so long as the waiver is knowing and voluntary.”  [H.R. Rep. 116-252, at 21]  This is the rationale that Board proceedings are voluntary: the plaintiff can select to file in federal court docket as an alternative, and the defendant should be knowledgeable of its proper to decide out of the Board continuing.  Fourth, the Board should comply with current precedent and can’t make new regulation.  [17 U.S.C. §1506(a)(1),(2)]  Fifth, the CASE Act supplies for the essential parts of procedural Due Process, together with discover and the chance to be heard.  [H.R. Rep. 116-252, at 22]  Finally, the Board can not implement its own determinations, and enforcement is topic to restricted judicial evaluation in a fashion that parallels the Federal Arbitration Act.  [H.R. Rep. 116-252, at 21-22]

Conclusion

Having a small-claims various to full-blown proceedings in federal court docket isn’t a foul thought; however $30,000 nonetheless looks as if a really giant quantity to anybody who isn’t a copyright proprietor.  Moreover, the CASE Act is so complicated that it will likely be troublesome for events to navigate the system and not using a lawyer.  This signifies that the price of bringing and responding to a $30,000 declare will probably be practically as costly as bringing or responding to a federal lawsuit.  It appears probably that refined litigants will “opt out” of the brand new system and pressure the copyright proprietor to file in federal court docket, with its current limitations on cures, together with statutory damages.  However, the financial limits on restoration might persuade some potential defendants to permit the claims to be heard by the Board.

The mannequin for this kind of various dispute decision is the Uniform Domain-Name Dispute Resolution Policy, or UDRP, the necessary arbitration provision for domain-name disputes that has efficiently resolved an average of 2,000 cases per year over the previous 20 years.  UDRP proceedings are carried out on-line and are fairly cheap.  They are binding except the dropping occasion takes the case to court docket, which hardly ever occurs.  But domain-name disputes have two important benefits that make them uniquely well-suited to various dispute decision.  First, as a result of one can not acquire a website identify with out getting into right into a contract, ICANN was in a position to make the UDRP necessary by inserting it into each domain-name contract.  Second, events hardly ever problem UDRP selections as a result of no damages will be awarded; the one aid out there is switch of the domain identify.  When damages are at stake, one can count on that the events will decide out of the purely voluntary Broad proceedings at a much larger charge.

Within three years after the Board begins operations, the Register should file a report with Congress assessing the use and efficacy of this experimental process.  [CAA, §212(e)]  One hopes that the experiment will show to achieve success, and that copyright house owners will be capable to recuperate for real infringements with out considerably deterring routine internet practices resembling linking.  One fears, nevertheless, that so-called copyright “trolls” will discover a approach to monetize Board proceedings, in much the identical manner that they’ve monetized mass copyright litigation.

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