Oof! Nice Try Congress - the Downfalls Case Act and Why We Should Be Looking to Our Cousins Across the Pond for Guidance in Updating Our New Small Claims Intellectual Property Court

• Jurisdiction: United States,Federal
• Citation: Vol. 29 No. 1
• Publication year: 2021

Oof! Nice Try Congress - The Downfalls CASE Act and Why We Should be Looking to our Cousins Across the Pond for Guidance in Updating our New Small Claims Intellectual Property Court

Cori Henris
University of Georgia School of Law, tch74287@uga.edu

Oof! Nice Try Congress - The Downfalls CASE Act and Why We Should be Looking to our Cousins Across the Pond for Guidance in Updating our New Small Claims Intellectual Property Court

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OOF! NICE TRY CONGRESS - THE DOWNFALLS CASE ACT AND WHY WE SHOULD BE LOOKING TO OUR COUSINS ACROSS THE POND FOR GUIDENCE IN UPDATING OUR NEW SMALL CLAIMS INTELLECTUAL PROPERTY COURT

Cori Henris^*

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TABLE OF CONTENTS

I. INTRODUCTION...........................................................................................178

II. BACKGROUND.............................................................................................182

A. CASE ACT............................................................................................182

1. Copyright Claims Board, Officers, and Attorneys..................183
2. Damages........................................................................................184
3. How a claim works in this system.............................................184
4. Evidence and possibilities of settlement..................................185

B. THE INTELLECTUAL PROPERTY ENTERPRISE COURT OF THE UNITED KINGDOM............................................................................186

1. Structure then and now...............................................................186
2. Bringing a claim into the system................................................189
3. A claim has been brought successfully. Now what?...............194
4. Remedies.......................................................................................195

III. ANALYSIS......................................................................................................195

A. PROS OF THE CASE ACT...................................................................195

1. Financial savings through the CASE Act.................................195
2. The CASE Act may reduce the frequency of opportunistic infringements................................................................................ 196
3. Parties still have a choice, and more people will be able to use it.....................................................................................................196

B. CONS OF THE CASE ACT..................................................................197

1. The scope of possible cases should be limited to those that most need it................................................................................... 197
2. Abuse of the system is likely to happen................................... 198
3. The board's statutory limits allow for high penalties..............199
4. A copyright office tribunal established outside of the judicial system will be unconstitutional..................................................200

C. PROS OF THE INTELLECTUAL PROPERTY ENTERPRISE COURT . 201

1. Options available to a claimant and the procedure of the courts.............................................................................................. 201
2. Reduced time and financial risk.................................................202

D. CONS OF THE INTELLECTUAL PROPERTY COURT........................202

1. More decisions equal more confusion......................................202
2. Strictness of the court................................................................. 203

E. WHICH PARTS OF THE UK'S SYSTEM WILL CORRECT THE DOWNFALLS OF THE CASE ACT?....................................................203

1. Opting out gets an upgrade........................................................204
2. Broader jurisdiction and options for remedies........................204

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3. More consistent decisions...........................................................205

F. WHAT IT IS UNABLE TO FIX?.............................................................205

1. Little limitation on the scope of possible cases to those that most need it can lead to abuse...................................................205
2. Steep penalties are still a possible issue....................................206
3. Would this be constitutional in America?................................206

G. COULD AN IPEC-STYLED SYSTEM WORK IN AMERICA?..............206

IV. CONCLUSION................................................................................................208

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I. INTRODUCTION

It was clear to the Framers of the United States that the protection of idea was of the utmost importance.¹ Article I, Section VIII of the Constitution declares various powers onto Congress.² The most important part of those is "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."³ Because of this Section, it has been necessary for our judicial system to provide a means to protect those rights if they are infringed upon.⁴ Just in 2018 alone, the number of filed copyright claims had reached the highest number it had ever been.⁵ California alone had about 16,817 filings between the years of 1996 to 2018 which made up about 22 percent of the national caseload.⁶

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Figure 1⁷

And with the number of claims rising each day, one may be thinking "if there are so many more cases being brought without issue, why are we talking about this?" While many people can bring suits, there are many more who could be but cannot.

One would assume that copyright holders would be eager to sue the person or group that is using their idea as their own, right? While they doubtlessly want to do that, it may not actually be an option for them to pursue for various reasons. Many times, these creators are not able to afford a lawsuit and must cut their losses.

Think of the aspiring photographer who posts her photos on a public social media website. She may sell prints of those photos or sell private sessions for people who wish to have their pictures taken. Luckily, it is relatively inexpensive to file for a copyright on one's work and this particular artist was proactive in filing for one on all her work with the United States Copyright Office to ensure that her work is protected.⁸ Now envision that her photos are being used by

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someone else without her permission. That person taking her photos is now making a profit from something that is not their work. "[P]hotographs are one of the most commonly infringed types of copyrighted works online, and 70% of photographers have seen their copyrighted work infringed."⁹ Most of these photograph infringement cases have a value that is less than $3,000 and thus, not worth the trouble of litigation.¹⁰

It is likely that this hypothetical photographer has little necessary time, money, or experience to get redress for the harm that the infringement did to her branding and goals in general. "If, as the Professional Photographers of America have told us, photographers generally earn about $30,000 a year," then it is almost impossible for her to even consider pursuing a federal copyrights infringement claim.¹¹ There are additional provisions in our current system that are meant to provide the modest copyright owner with the means to push for such a claim but even these provide little help.

Unlike most areas of the law, copyright law permits a court to award a reasonable attorney's fee to a successful plaintiff (or defendant). Moreover, a copyright owner may elect to receive an award of statutory damages of up to $30,000 per infringed work—and up to $150,000 per work in cases of willful infringement—in lieu of actual damages and profits.¹²

Even so, these incentives are not always enough to make it worth it to a small creator.

One of the main disincentives for creators, such as the professional photographer of America, to pursue claims is the fact that "[c]opyright law is

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federal law."¹³ All parties wishing to bring any sort of copyright infringement claim must file that claim with the federal district courts, which have total jurisdiction over such cases.¹⁴ While there are positives about this, such as the consistency and quality of decision-making and the ability to collect damages, the cost of such litigation is outrageous.¹⁵ And while state courts typically offer some sort of small claims track, as of today, there is nothing similar to be found in the federal court system.¹⁶

At this point, one may be wondering, "well how much could it cost to begin a claim?" I am glad you asked. "Typically, a party can expect to spend several thousand dollars per month in court costs to defend against copyright infringement claims."¹⁷ This cost can even reach heights of approximately $300,000, including appeals.¹⁸ Thus, these creators have rights but no means to protect them.¹⁹ This high cost will include things like "communication between the parties, legal research, necessary court filings, meetings with opposing counsel or judges, and preparation for and attendance in court hearings."²⁰ Not to mention, the added loss in work time searching to find a lawyer willing to take on a claim that will not yield high profits presents a different issue. Even if the creator can do all the leg work getting a claim filed, that does not guarantee that they will win or that their work will be protected from future infringements.²¹ There is a need for an answer to this issue within our society, given that we live in the age of social media where taking another's work is just a screenshot away.

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The Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act) was proposed and signed by President Donald Trump to provide a means for these small creators to fight against infringement.²² It passed in the U.S. House of Representatives on October 22, 2019...