On October 22, the United States Congress made meaningful progress toward helping content creators defend their copyrights without the need for expensive, time-consuming legal battles. In an evening vote, the House of Representatives overwhelmingly passed H.R. 2426, the Copyright Alternative in Small-Claims Enforcement Act, better known as the CASE Act. The bill will now move to the Senate where it can be voted into law.
Industry organizations such as the American Society of Media Photographers (ASMP), Professional Photographers of America (PPA) the Graphic Artist Guild and the Copyright Alliance have recently been encouraging members to call and write to congressional representatives to urge their support of the bill, and it appears to have paid off as the House passed it by a vote of 410-6.
“You are awesome advocates!” reads the new headline atop the ASMP’s CASE Act Central webpage. “Now we must pivot and focus on the Senate.”
ASMP members have sent more than 16,000 emails and tweets to members of congress, garnering support from 151 House co-sponsors as well as 16 Senate co-sponsors. The organization now urges photographers and other creators to petition their Senators in support of the CASE Act.
Current law requires copyright infringement lawsuits be litigated in federal court—a time-consuming and expensive process that works for large corporate copyright holders that have the resources to easily pursue infringers. But the process is particularly burdensome for small businesses and independent creators like most photographers, authors and musicians.
Should it pass the Senate and be signed into law, the CASE Act would create a three-judge panel within the U.S. Copyright office. This Copyright Claims Board (CCB) would rule on infringement cases with damages up to $15,000 per infringement or $30,000 per claim—effectively creating a small claims court-style system, streamlining the process for both creators as well as those accused of infringement.
Critics of the CASE Act include the Electronic Frontier Foundation, an organization that funds legal defenses against copyright claims and other lawsuits it deems restrictive to fair use and civil liberties, as well as the American Civil Liberties Union (ACLU). These organizations argue that additional layers of government oversight are unnecessary.
In a September letter to the House Judiciary Committee, ACLU National Political Director Ronald Newman and Senior Legislative Counsel Kate Ruane urged Congress to make changes to the bill, including a lower cap on awards and limiting penalties to actual damages.
“We do not oppose the idea of creating a small claims process to allow copyright owners to assert infringement and be awarded damages for the harm caused,” they wrote. “There is evidence that strongly suggests a need for such a system, as many copyright holders have argued. However, we believe that changes are needed to ensure adequate safeguards for due process and the protection of the freedom of speech.”
Citing the cumbersome and ineffectual Digital Millennium Copyright Act (DMCA), the letter goes on to argue that easier copyright enforcement could have a “chilling effect” on free speech online.
“If legally unsophisticated people are drawn into the CCB process,” they continued, “with the possibility of being liable for $30,000 in damages, they may be forced to settle rather than risk far greater liability, even if they had not infringed. Given the complex and fact-intensive nature of copyright claims and defenses, the design of a system to make copyrights easier to enforce must be carefully balanced, not only to permit rights holders to enforce their legitimate claims, but to protect the free exchange of information that has become essential to modern American life.”
Last year, PPA CEO David Trust testified to Congress on the importance of creating a small claims process for copyright. He said the average infringement claim is much less than the cost to litigate that claim in federal court.
“With so much at stake,” Trust said in his testimony, “it is surprising to most people to learn that, as a practical matter, America's system of copyright protections does not work for the majority of its creators. For decades these smaller creators have looked longingly from the outside at America’s copyright system, wishing that it provided them the same protections it affords other creators. Research shows that 70 percent of professional photographers have suffered multiple infringements over the last few years, and that 75 percent of those infringements were typically valued at $3,000 or less. In contrast, the cost of litigation in federal courts is tens of thousands of dollars, sometimes hundreds of thousands of dollars. The math simply works against most small creators.”
Copyright Alliance CEO Keith Kupferschmid praised the House of Representatives, calling its vote a show of “tremendous support.”
“The CASE Act continues to be a legislative priority for hundreds of thousands of photographers, illustrators, graphic artists, songwriters, authors, bloggers, YouTubers and other types of creators and small businesses across the country,” Kupferschmid said. “These creators are the lifeblood of the U.S. economy. Unfortunately, they currently have rights but no means to enforce them because federal court is too expensive and complex to navigate. Copyright law should protect all of America’s creators. However, today it only protects those who can afford the high costs of federal court and legal representation. The CASE Act will change this by providing creators with a voluntary, inexpensive and streamlined alternative that they can use to protect their rights, their creativity and their livelihoods.”
More information on the CASE Act can be found at the ASMP’s CASE Act Central page at https://www.asmp.org/advocacy/asmp-case-act-central/
Read the bill in its entirety courtesy of the U.S. Congress at https://www.congress.gov/116/bills/hr2426/BILLS-116hr2426ih.pdf
About the author:
William Sawalich made his first darkroom print at age ten. He earned a Master's Degree from The Brooks Institute of Photography in Santa Barbara, California. Along with portraiture, still life and assignment photography, Sawalich is an avid writer. He has written hundreds of equipment reviews, how-to articles and profiles of world-class photographers. He heads up the photo department at Barlow Productions in St. Louis.