New United States Small Claims System May Help Decide

By Allie M. Craver ’17

Nearly everyone has developed an original work fixed in a tangible medium of expression capable of being copyrighted. Copyrights are the most widely held and highly infringed form of intellectual property, provided it spans the fields of writing, music, poetry, film, television, art, computer software and architecture. The creator does not have to register the work with the United States Copyright Office for protection to apply since copyright exists at the moment of creation in a fixed, tangible form. Considering the widespread nature of protection and our recent digital advancements, the rate of copyright infringement has increased exponentially. Congress, the Copyright Office, and the Supreme Court hope to rectify some major issues plaguing copyright law soon. More specifically, the focus of this piece will center on the recent development of a small claims system.

Congress passed the Copyright Alternative in SmallClaims Enforcement (“CASE Act”) in 2020, which established a Copyright Claims Board (CCB) to resolve disputes outside the federal court system. Three Copyright Claim Officers (CCOs), who have deep expertise in copyright law render determinations rather than judges. The CCB offers a variety of claims, such as: a party accused of infringement can file a claim seeking a ruling that its actions do not infringe; a claim for misrepresentation in connection with a Digital Millennium Copyright Act (DMCA) notification; or a counter notification seeking to replace removed or disabled material. The respondent, whom the claim is made against, maintains the ability to opt out of the proceedings so long as it occurs within 60 days of notice. The claimant may then choose to file a suit against the respondent in federal court. If no opt-out occurs before the 60-day deadline, the proceeding moves forward in the CCB with or without their participation, and the respondent will be bound by the determination. Since a federal lawsuit cannot commence until copyright registration is complete, the CCB offers a quicker and less expensive method of obtaining copyright determinations.

Regarding relief, the CCOs may award actual damages and profits of up to $30,000 per proceeding or statutory damages as set by the law, which cannot exceed $15,000 for each work infringed, and no greater than $30,000 per proceeding. Attorneys’ fees and costs can be awarded along with a note in the determination to stop infringing activities, if a party has agreed to do so. Federal and state government entities are excluded from any CCB action, and libraries and archives can preemptively optout of having claims brought against them. Many small businesses and creators have initiated claims using this costeffective, timely system that should only grow in the future.

Although the CCB is a step in the right direction, more significant copyright decisions are imminent: the Supreme Court will determine the scope of fair use and its transformative test Warhol v. Goldsmith; a congressional study was initiated on nonfungible tokens (NFT), based on blockchain technology and intellectual property; and a revision to the outdated DMCA (1998) may occur soon. At least the CCB provides another system to right any copyright wrongs.

Allie M. Craver, Intellectual Property manager, Pérez Art Museum, Miami

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