Monday, October 04, 2021

The CASE Act and Libraries: 2021 Miami University Libraries Copyright Conference

Miami University Libraries
This is the last session (Oct. 1). Thanks to Miami University (Ohio) for an excellent conference.  I enjoyed having the sessions spread over five days and was able to attend five of the seven sessions.  (I missed "Offering Copyright Services" and "U.S. Copyright Office Update".) A big thanks to Carla Myers for hosting this event.

Speaker: Kenneth D. Crews

Description: The CASE Act, passed in late 2020, has the potential to impact library users. Join us  to learn more about the development of the copyright small claims court and ways in which we can educate our users about it.

Questions asked by participants are in bold.

Kenneth D. Crews
The CASE Act answers the age old question, "Do we need to sue more people?" Congress answered, "yes." Thank you for the opportunity to litigate!

This is a means that people who don't have deep pockets can bring a legal proceeding. 

Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020. This is a alternative for resolving copyright disputes in a small-claims court.  

What is a small-claims court? Looking at existing small-claims courts, a small-claim litigation  may have a cap on the dollar amount which can be awarded. They are also informal. You do not have a lawyer represent you. A person may have a larger claim, but decide to go to small-claims court for a smaller amount, just to get it done.

Why the Copyright Claims Board (CCB)?

  • Simpler, streamlined proceedings.
  • Cap on damage awards of $30,000.
  • Determinations are generally final.
  • You may be represented by a lawyer. You can also be represented by law students (pro bono).  This could cause CASE Act law clinics to form in some of our law schools.
  • Staff of the CCB will help with filings and proceedings.  So this meant for people who don't file many cases.

The CCB does not hear cases, rather it hears proceedings.  It is not a court. A claimant brings the proceeding against a respondent. The judges are referred to as Copyright Claims Officers. Rather than decisions, there are determinations. Taking a proceeding to the CCB is voluntary.

These are not an Article 3 Court. In other words, they are not part of the judicial system that is set up in the Constitution, Article 3. The CCB is part of the Copyright Office, which is part of the Library of Congress, with is part of Congress.

In the an earlier session we talked about the possible constitutionality or lack there of the tribunal. What does Kenny think?

He does not have a strong opinion. He had heard the people wonder if moving the CCB into the Judiciary would be better.

What kind of proceedings?

  • Claims of Infringement
  • Claims of Non-Infringement
  • Claims of Misrepresentation (Section 512(f))

This is not really a "court"

  • Not part of Article III
  • Proceedings are voluntary
  • No formal rules regarding evidence. The CCB can request evidence. The CCD could request evidence in one case and not another.
  • Monetary relief only.
  • "Injunction" only if agreed.  The CCB cannot force it.
    • The CCB is allowed to put into its determination that Party A has agreed to cease activities, if both parties agreed. The CCB can note if the Party has ceased their activity when determining the monetary relief.
  • No recovery of attorneys' fees (usually)
    • There are a couple of places where attorneys' fees can be awarded, but not enough to make a big difference.
  • Determinations are not precedent and may not be used in future proceedings.
    • You cannot rely on the determinations of CCB in future CCB cases or in future court cases.
    • The determinations will be made public and will be studied, which might produce influential information and trends.
    • Filings and decisions will be easily available online. Crews believes there isn't much room for confidentiality. He does not know how quickly determinations will be online.

My understanding is that the CCB has to consider what courts have ruled for other copyright cases in their decisions.  Is this the case, and could the CCB rulings possibly influence court decisions?

Yes, it is possible that CCB rulings will be influential. The CCB is required to look at court cases, when making its determinations. They should look for precedents in the court district where a court case would have been filed, or in the nearest district.

A deep-pocket party will have a big advantage in the CCB, because they can file more documents in their proceedings.

CCb doesn't seem to have much ability to enforce terms outside of the proceeding. What happens when the respondent later fails to honor an injunction or determination? Courts have repercussions for defendants who violate terms.

We still need courts:

  • May file an action is the U.S. District Court for review of the CCB proceedings.
    • Decisions are final. However, the District Court can review the CCB process.
  • May file an action in the U.S. District Court for confirming CCB order for relief.
    • The power of the District Court may be used to get the determination fulfilled.
    • Opposing party may be ordered to pay those costs and attorneys' fees. 
  • Regular courts provide oversight and enforcement.

Strictly voluntary:

  • The Claimant files voluntarily
  • The Respondent has 60 days to opt out
    • Otherwise: 
      • Loses ability to have the matter heard in a real court.
      • Loses the right to a jury trial.

As the respondent, how would you know that the claimant has gone to the CCB?

Watch for service of notice. We don't know yet what the form of the notice will look like. When we know what that form looks like, look at it closely so you know if one has arrived at your home or office. If you don't spot it, and 60 days go by, you have lost your ability to opt out.

Let's talk more about trolls. There already are people that send demand letters, asking for thousands of dollars for an immediate settlement. With the threat of initiating a lawsuit and the potentially massive statutory damages. I think it is reasonable to assume that the CCB will be used as a lower stakes, especially for the trolls, mechanism for extracting payment. This could also circumvent the mechanisms that the CCB puts in place to limit trolling.

Congress evaluated the concerns that this could attract trolls and feel the risk of trolls are low. The Copyright Office can limit the number of actions a party can submit to the CCB.

There are three copyright claims officers. They are required to render their determinations as a group of three. They render determinations together. All three address all cases. This process could be overwhelming for the CCB. It will have an overloaded schedule. They can hire staff attorneys and other staff, which might help.

Libraries, Archives, and the Opt-Out

  • Libraries and archive may preemptively Opt-Out of all actions brought against them.
  • But not:
    • Librarians, archivists, and other staff. So a copyright action could come against an individual, instead of against the institution.
    • Libraries within a parent institutions, e.g., college or university
  • "Libraries" as defined within the scope of Section 108
    • Libraries open to the public or to outside researchers
    • Could their be legal disputes over what "libraries" fit into Section 108?

Wonky legal stuff (things lawyers will love):

  • CCB can assist with subpoenas under 512(h)
  • Tolling (freezing) of the Statute of Limitations. An interesting way of using the CCB.
  • Must register the copyright with the U.S. Copyright Offices or at least have an application submitted. If only an application, it affects your damages.
  • CCB shall apply precedent from the district where the matter could have been filed.
  • Determination of ownership in one proceeding cannot be used in any other case or proceeding.

Get ready!

  • Watch for services of notice
  • Report any Notice to:
    • Senior staff
    • Legal counsel
  • Act immediately on the Opt-Out
  • Know your rights and options
    • Protect your institution
    • Protect yourself - You may be the one the claim is brought against. If necessary, get independent advice. Remember that liability generally flows upstream.
  • Develop policies and procedures
    • Don't under-react. If your name is on the piece of paper, keep track of what is happening.
    • Don't over-react. Don't immediately stop how you are using copyrighted materials now.

When will libraries be able to start the opt-out process?

The Copyright Claims Board is schedule to commence business one year after the enactment of the statute. That means it should occur at the end of December 2021. The Copyright Office could put a six-month extension on the start date. The day it begins, there should be a way of opting out. That method could be released sooner.

Corporate libraries are not eligible?

Section 108 allows libraries to be open to outside researchers, which covers some corporate libraries.

What does opting out do?

You're opting out of being a respondent.The CCB may check to see if you're on the opt-out list.  A claimant may file anyway if they feel that the library does not fit under Section 108.

Can a library that has opted out of being a respondent, be a claimant? Crews believes the answer is "yes."

If institution receives notice, will the CCB also provide notice to you? Could you be named on that notice but not receive it, that it goes to the institution instead? If you are named but notice is given to institution and not you, how would you know you needed to opt out? Does that make sense? 

Everyone named in the proceeding should be notified.

Why wouldn't an individual opt-out?

There is not one rule. A person should look carefully at the proceeding. It is likely tht the decision will be to opt-out.  If you believe that the accusations are false, you may decide to proceed with the matter and not opt-out. You will want to size up the other party, their financial resources, etc., when making that decision. You may want legal counsel to help you with that decision.


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