September 2019 479 C&RL News

Carrie Russell is senior program director and copyright 
specialist at ALA’s Washington Office, email: crussell@
alawash.org

W a s h i n g t o n  H o t l i n eCarrie Russell

The CASE Act makes its way through 
Congress
Sounds like a great idea: providing a venue 
to litigate small claims of copyright infringe-
ment so rights holders with limited resourc-
es can avoid the costs and extensive time 
necessary to bring a federal lawsuit. In fact, 
this is what the U.S. Copyright Office pro-
posed in its 2013 policy study “Remedies for 
Copyright Small Claims,” requested by the 
House Judiciary Committee.

It’s true that the federal copyright court 
system makes it next to impossible for 
graphic artists, photographers, songwriters, 
authors, and others to enforce their rights of 
copyright when infringement occurs. Like-
wise, alleged infringers face the same high 
litigation costs. 

In response, the House Judiciary Com-
mittee introduced the Copyright Alternative 
in Small-Claims Enforcement (CASE) Act of 
2019 (H.R. 2426), and the Senate Judiciary 
Committee introduced companion legislation 
(S.1273), which awaits a full Senate vote. 

The Library Copyright Alliance (LCA), 
whose members include ALA, ACRL, and 
ARL, recognizes the good intentions of the 
CASE Act but opposes the bill, primarily 
because of the opt-out process. Alleged in-
fringers can opt out of the trial by submitting 
a written notice, and the proceeding will be 
dismissed. This would seem to lead to the 
dismissal of many of the cases and the small 
claims court not being used, ending the op-
portunity for the rights holder to have their 
day in court. 

On the other hand, if respondents do 
not opt-out, they lose their right to litigate 

under federal copyright law with copyright 
exceptions, including the fair use exception, 
and waive their right to a jury trial, leading 
to a default judgement in the small claims 
proceeding. One wonders if the small claims 
court would be used under this model, but 
at the same time, those who don’t opt out 
would face default judgement and be fined 
up to $15,000 per infringement, not to exceed 
$30,000. 

Civil society organizations who oppose 
the CASE Act also argue that innocent infring-
ers—people who post an image on Facebook, 
not realizing it is protected by copyright—
would be dragged into court. That’s a valid 
point: as we know all too well, people are 
unaware they could be breaking copyright 
laws when they post images they find on the 
web. Under the CASE Act, works do not have 
to be registered before infringement occurs, 
which further hinders people’s understanding 
of what works are protected by copyright. 

There are other reasons why the CASE 
Act is problematic. In practice, the legislation 
could lead to increased copyright trolling. 
Copyright trolls make copyright infringement 
litigation their business model, often targeting 
copyright users who have no idea that they 
infringe copyright. Trolls are also pursuing 
libraries and nonprofit organizations. 

While LCA is sympathetic to rights holders 
having an alternative to a federal court trial, a 
better alternative could be developed. Some 
suggest an opt-in process would be better, 
allowing alleged infringers the right to a jury 
trial and the right to appeal. Furthermore, 
statutory damages should be aligned with 
state law small claims damages, about one-
fifth of the amount proposed in the CASE Act. 
LCA will continue to monitor the legislation 
and apprise the library community of devel-
opments. 

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