As we wrote about in this blog back in early 2021, the COVID-19 stimulus relief and government-funding bill signed into law in December created a new “small claims court” for small-scale copyright disputes.
The Copyright Alternative in Small-Claims Enforcement Act (“CASE Act”) revises the Copyright Act, 17 U.S.C. §§ 101 et seq., and creates a Copyright Claims Board (CCB) within the US Copyright Office.
As the US Copyright Office explains,
The CCB is a three-member tribunal within the Office that provides an efficient and user-friendly option to resolve certain copyright disputes that involve up to $30,000.
The CCB will be able to decide on:
- Copyright infringement claims
- Declarations of non-infringement of copyright
- Claims for failure to remove or disable access to allegedly infringing content after notice-and-takedown procedures under the Digital Millennium Copyright Act (DMCA) have been followed
- Misrepresentation in connection with a DMCA claim
- Counterclaims relating to the above
- Defenses such as first sale and fair use
The CCB may not award more than $15,000 in statuary damages per copyrighted work, no more than $30,000 in total actual or statutory damages, and no more than $5,000 in attorney’s fees in cases of bad faith unless a party can present evidence of extraordinary circumstances.
As we also noted here, the US Copyright Office asked the public to comment on the proposed process.
The CCB is now active.
One of the biggest benefits of the new small claims court is that the filing fee is only $100. In contrast, filing a claim in federal court costs $350.
Defendants who are sued in the CCB can “opt-out.” If that happens, the plaintiff can still file a federal court claim.
One important feature of CCB actions is that a plaintiff can get statutory damages and attorneys’ fees – although less than in federal court – even if the plaintiff files a copyright registration after infringement occurs but before filing suit.
As the Copyright Alliance explains, in regular federal copyright infringement cases,
Copyright owners are eligible for statutory damages when they register their work with the U.S. Copyright Office either (1) within three months of publication of the work, or (2) before the infringement starts.
Why are statutory damages important? As Nolo.com explains,
In many copyright cases, both actual damages and profits are difficult to prove. How do you really know how many T-shirts you would have sold, or how much money you lost, as a result of someone’s infringement? At best, the numbers are murky.
For that reason, the Copyright Act provides for a third category, known as statutory damages—that is, specific monetary damages set by law. However, only a person who has registered a work with the U.S. Copyright Office before the infringement (or within three months of publication) may receive statutory damages.
Such a plaintiff in an infringement action may opt for either actual damages (and the infringer’s profits, if appropriate) or statutory damages, but not both. It is often said that copyright plaintiffs must “elect their remedy.”
Statutory damages are explained in 17 U.S.C. § 504(c). For infringements that cannot clearly be proven as either innocent or willful, statutory damages may be from $750 to $30,000 per infringement. The exact amount depends on the seriousness of the infringing act and the financial worth of the infringer.
To deter potential “copyright trolls,” CCB rules limit the number of cases that can be filed by plaintiffs to 30 per year and limit the number for attorneys to 40 per year for solo practitioners and 80 per year for law firms.
You can learn more about what the CCB is and why you might want to participate in a CCB proceeding at ccb.gov.
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