Getting CASE in Place

AuthorJune M. Besek
Published in Landslide® magazine, Volume 13, Number 4, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2021 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Copyright owners have long sought a new forum in
which to resolve small copyright claims. In the 116th
Congress, they nally achieved that goal. The House
of Representatives passed the Copyright Alternative in Small-
Claims Enforcement Act (CASE Act) in 2019,1 and although
the bill was stalled in the Senate throughout 2020,2 it was
nally enacted at the end of 2020.
The internet poses particular problems for copyright own-
ers, especially those who sell or license their copyrighted
works at a relatively low cost and rely on the volume of sales
to earn a living. In the case of infringement, these copyright
owners have little recourse, since the cost of bringing a law-
suit to get paid far outstrips their potential recovery.3 In some
cases, the ling fee alone would exceed the potential dam-
ages. Right holders cannot seek adjudication of their claims in
another forum (possibly one less costly), because federal courts
have exclusive jurisdiction over copyright infringement cases.
Right holders have no realistic means to recover for uses of
their works, and infringement increases when internet users are
aware that infringing uses have no negative consequences. In
short, these copyright owners have a right without a remedy.
The CASE Act grew out of the recommendation of a 2013
Copyright Ofce report.4 The CASE Act as passed is similar
in many respects to the Copyright Ofce’s recommenda-
tion. The CASE Act creates a Copyright Claims Board (CCB)
within the Copyright Ofce to hear and decide disputes. The
CCB will have three copyright claims ofcers, two with sub-
stantial experience in resolution of copyright infringement,
and the third with knowledge of copyright law and experi-
ence in alternative dispute resolution.5 Participation in the
CCB forum is entirely voluntary on both sides. Only certain
types of claims can be heard, such as claims for copyright
infringement or for a declaration of noninfringement, or for
a misrepresentation in connection with 17 U.S.C. § 512(f).
There is a maximum recovery of $15,000 per claim, and
$30,000 in a proceeding. The proceedings are designed to be
more streamlined than in federal court—for example, discov-
ery will be limited, and cases will be heard remotely, so no
party need go to Washington, D.C.
The American Bar Association (ABA) publicly supported leg-
islation to provide a small claims enforcement forum. On October
22, 2019, the House of Representatives passed the CASE Act.
The differences among the stakeholders delayed progress
in the Senate. Opponents of the legislation there raised sev-
eral arguments against its passage, including, for example: (1)
notices to defendants would be insufcient to apprise them of
the voluntary nature of the proceeding and their opportunity
to opt out; (2) the new forum would provide a new opportu-
nity for trolls; and (3) there should be a blanket opt-out for
certain defendants, like libraries.
The argument that notice provisions were inadequate ulti-
mately failed. A claimant must serve notice of the claim
on the respondent under the terms of the statute, and the
CCB also noties the respondent of the claim. Those who
favored the CASE Act believed that copyright trolls would
be unlikely to ood the CCB with their claims, since a defen-
dant can always opt out; the cap on damages would make the
small claims venue less attractive to trolls; and the CASE Act
would authorize a limit on the number of cases that a sin-
gle party could bring in a year if the party pursued cases for
harassment or other improper purposes. The principal change
to the CASE Act in the Senate was to give libraries and
archives a “blanket opt-out” that would relieve them of the
obligation to opt out on a case-by-case basis.
To increase the chances that the CASE Act would pass,
the Senate attached it to the 5,000+ page consolidated appro-
priations bill. As a political matter, they were condent that
the appropriations bill would pass before the end of the 116th
Congress.6 Ultimately, the president signed the Consolidated
Appropriations Act on December 27, 2020, and with it, the
CASE Act became law.7
Passage of the CASE Act was a signal achievement of its
supporters, including the ABA. n
1. H.R. 2426, 116th Cong. (2019).
2. S. 1273, 116th Cong. (2019).
3. If copyright owners could register their works in a timely manner,
they would be eligible for statutory damages and attorney fees, but reg-
istration by those who create numerous works is often unrealistic.
4. U.S. C O, C S C: A
R   R  C (2013), https://www.
5. H.R. 2426, § 2 (proposed 17 U.S.C. § 1502). The discussion
of the terms of the CASE Act, and the issues raised in opposition,
are necessarily abbreviated in this article.
6. Two other pieces of intellectual property legislation were
added to the appropriations bill for the same reason: (1) a bill to
make willful digital streaming a felony, and (2) a Trademark Mod-
ernization Act making several changes to the Lanham Act.
7. Consolidated Appropriations Act, 2021, Pub. L. No. 116-260,
§ 212, 134 Stat. 1182 (2020).
June M. Besek is chair of the ABA Section of Intellectual Property Law. She is the executive director of the Kernochan Center for
Law, Media and the Arts and a lecturer in law at Columbia Law School. Her research and teaching focus on copyright and related rights,
particularly as they relate to new technologies. She can be reached at
By June M. Besek
Getting CASE in Place

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