Paul*UPDATE: On December 27, 2020, the CASE Act was signed into law, and a new U.S. small claims copyright court was born.
You probably heard that the U.S. Congress managed to agree to a COVID-19 relief bill, including, among other things, stimulus checks of $600 per adult and child. One thing that few expected was that the omnibus spending bill would include some fairly major changes to U.S. copyright.
The changes include making operating an illegal streaming service a felony (previously just a misdemeanor, unlike unlawfully distributing and reproducing copyrighted material), and introducing a new court to handle copyright infringement matters.
Back in 2019, a bill was introduced to the U.S. Congress called the Copyright Alternative in Small-Claims Enforcement Act of 2019 (the CASE Act). The CASE Act promised to create a voluntary, efficient and affordable small claims court process for copyright disputes. Now, to almost everyone’s surprise, the CASE Act has been included in the omnibus spending bill that includes COVID-19 relief.
Some argue that the CASE Act makes lots of sense. Copyright infringement is rampant, particularly online. But the costs of litigating most copyright infringement are prohibitive. Small claims courts allow for efficient litigation, where small amounts of money are at stake.
At the same time, many fear that the CASE Act will create new opportunities for copyright trolls to harass and extort innocent victims with frivolous threats of litigation. They point out that the “voluntary” nature isn’t really useful – a defendant has to affirmatively opt out of the process within 60 days or they lose that right. (see, for example, page 106 of the 3000+ page omnibus bill, posted here)
The CASE Act could actually be considered the United States catching up to Canada. In Ontario, for example, a plaintiff can currently bring copyright infringement-related dispute in small claims court. And a defendant who fails to respond would face the prospect of a default judgment being entered against them.
If anything, the Canadian process is less “voluntary” (you don’t have an absolute right to opt out of small claims court) and yet it has not (I don’t think) caused excess copyright trolling. (Happy to be convinced otherwise on that point, though.)