'Small Claims' For Copyright Infringement Actions

Author:Mr Chieh Tung
Profession:Fenwick & West LLP

On October 22, 2019, the U.S. House of Representatives passed the Copyright Alternative in Small-Claims Enforcement Act, which would provide an alternative dispute resolution program for lower-value copyright infringement claims.

Currently, rightsholders to copyrighted materials must litigate their claims in federal court, which can be protracted and costly. The purpose of the Act is to provide a "forum for lower-value copyright disputes in which participation is voluntary for both claimants and respondents." In addition, the law is "intended to be accessible especially for pro se parties and those with little prior formal exposure to copyright laws who cannot otherwise afford to have their claims and defenses heard in federal court." Parties may appear pro se or be represented by an attorney or a law student on a pro bono basis.

The Act establishes a Copyright Claims Board, composed of three Copyright Claims Officers recommended by the Register of Copyrights and appointed by the Librarian of Congress. Each officer must have at least seven years of legal experience. Additionally, there must be at least two full-time Copyright Claims Attorneys with at least three years of "substantial experience" in copyright law to help with the administration of the Board. The Board may hear claims for copyright infringement, declarations of non-infringement, misrepresentation under section 512(f) of the Digital Millennium Copyright Act, related counterclaims and any legal or equitable defenses, such as the fair use doctrine. Once a proceeding is initiated, defendants have the choice of opting out, and the parties may choose instead to bring their case to court. If the defendant does not opt out—including by failing to appear—the Board's decision is binding and may be subject only to a request for reconsideration or review by the Register of Copyrights.

Proceedings under the Act differ from actions brought under the DMCA in several notable ways. Unlike the DMCA, which does not cap awards for actual damages and profits, and does not otherwise cap the...

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