Copyright was the CASE That They Gave Me

There is a general perception that copyright infringement lawsuits are only an option for plaintiffs who are able to spend a great deal of time and money on the process, but the Copyright Office is looking to change that situation with a new small claims court option. While in theory it seems like a much-needed option for plaintiffs, it remains to be seen whether it will actually result in a benefit to anyone other than intellectual property attorneys.

The Copyright Alternative in Small-Claims Enforcement (CASE) Act passed in December 2020, and the Copyright Office should establish the Copyright Claims Board (CCB) in time for it to start hearing cases by December 27, 2021 (Merry Christmas, infringers!!!). The idea is that a three-person panel will hear claims of up to $30,000, and procedures will be faster, less expensive, and voluntary.

You’ve Got Options

It’s the “voluntary” part of the process that presents a big question. Defendants are able to opt out of the proceedings, and then the plaintiff would have the option of pursuing the claim in federal court. This is where things get circular – if the problem is that most defendants realize the average plaintiff cannot afford to file a claim in federal court, why would anyone opt in to the small claims court process? How would this not just be an interesting exercise for the plaintiff’s attorney?

Cool Story, Copyright Office

The Copyright Office’s response to this line of questioning is that defendants may choose to proceed in small claims court to prevent the plaintiff from receiving a larger verdict in federal court, or to resolve the issue in a less expensive and time consuming manner. That sounds like a nice world to live in, but it seems more likely that even defendants who may foresee a potential defeat may still decide to bank on the inability of most plaintiffs to proceed in federal court.

Docket Teams, Get Ready!

One practical outcome of this procedure is that attorneys and clients should definitely be prepared to respond to these claims. If the defendant fails to respond or opt out, the plaintiff would not automatically receive a default verdict, but it would have an opportunity to prove its claim before the tribunal without any rebuttal evidence. And while $30,000 is considered small in the copyright arena, that would still be a damaging penalty for an easily avoidable procedure.