NB: The following does not constitute legal advice. The following represents the individual views of the author only and does not reflect the views of any client or organization. If you wish to obtain legal advice pertaining to copyright, you should contact an intellectual property attorney.
Imagine you maintain a blog where you share your thoughts on a topic you’re passionate about. Maybe it’s quilting. Or high school sports. Or the history of Southeast Ohio.
To make your blog look spiffy, you decide you want a nice, relevant photograph on the top of your webpage. You run an image search on your favorite internet search engine and find just the right photo, making sure to select a photo from the search results that is listed as free to use. You post the photo on your blog.
You’re in the clear—or so you think. But you aren’t. It turns out the information in the search results about the photo being free to use was wrong … and the photographer who owns the copyright in the photo has found out. You wind up in court over it. Because you didn’t have the photographer’s permission to use the photograph, the judge orders you to pay damages to the photographer for your unauthorized use of the photo.
The scenario I just described is from a real-life case, decided just this year (Golden v. Michael Grecco Products). In Golden, the court found that the blogger committed copyright infringement and had to pay $750 to the photographer. Because copyright infringement is strict liability, it didn’t matter that the blogger didn’t intend to violate the photographer’s copyright, and it didn’t matter that the blogger, in good faith, thought the photo was free to use. It also didn’t matter that the blogger immediately took the photo down when he found out it wasn’t actually free for him to use. The mere unauthorized use of a copyrighted work is enough to violate the law.
Cases with facts like those in Golden are relatively rare. Because the cost of litigating copyright infringement cases is so high, copyright lawsuits are generally limited to cases with big dollars involved. But that is about to change.
Buried in the nearly 6,000 pages of the Consolidated Appropriations Act of 2021 (the same federal law that garnered all sorts of attention last December for its COVID relief provisions) was the Copyright Alternative in Small-Claims Enforcement Act. The CASE Act established a brand-new tribunal, the Copyright Claims Board within the U.S. Copyright Office. The CCB has authority to hear copyright claims of up to $30,000 — and, in extraordinary circumstances, even award attorney’ fees to a prevailing claimant. The CCB is supposed to be up and running before the end of the year, but the Copyright Office is still working on its implementing regulations.
Congress created the CCB because it was concerned that a good number of copyright claims weren’t being litigated due to the prohibitive expense of filing such claims in court; copyright claims have to be brought in federal court, which is generally more expensive than state court. For copyright claims involving small dollar amounts, it just isn’t worth the cost to litigate. The CCB, though, provides a low-cost alternative for some copyright claims. The CCB therefore changes the economic calculus for filing copyright claims against alleged infringers. If it turns out that there will be a significant increase in copyright litigation because of CCB proceedings, there are some traps for the unwary.
First, many people have misconceptions about copyright law. One of the most common is that copyright infringement is the same thing as plagiarism (using someone else’s idea without attribution). It’s not. If you copy someone else’s work without authorization, even if you provide full attribution, you have committed copyright infringement. How often does that happen? Go to your favorite social media site and scroll for, oh, say, 15 seconds. You’ll have your answer: an awful lot.
Another misconception about copyright law is that it’s easy to tell what copyright law covers and what it doesn't. The subject matter covered by copyright is quite broad — much broader than one might intuitively think at first. (Did you know that if a restaurant has TVs for its patrons, the size of the restaurant is governed in part by copyright law?) Sometimes, what you might think is just a single use of a copyrighted work actually involves multiple copyrights: Having permission to publicly perform a play, for example, doesn’t mean you have permission to stream video of your production over the internet. And sometimes the owner of a particular work can’t be found until after infringement has already occurred, so even if you tried, you couldn’t have obtained permission ahead of time.
The second trap is that there is no right to a jury trial before the CCB. Thus, proceedings before the CCB are voluntary for both claimant and respondent. But — and here’s the rub — unless a respondent affirmatively opts-out after the respondent is sued in the CCB, the respondent is considered to have consented to the suit and to have waived any right to a jury trial on the issue. In other words, if someone sues you for infringement in the CCB and you don’t timely file a response to the suit, the CCB may interpret your silence to mean that you don't want a jury trial. You will have no right to appeal a CCB decision that orders you to pay money to the person who sued you.
That’s a problem. As a number of commenters (including the University of Michigan library) have noted, when someone gets a letter from the CCB notifying them that they're being sued, that person may reasonably think the letter is spam or even a scam and throw the letter in the garbage. It's quite possible that folks could unintentionally waive their right to a jury trial and wind up getting hit with a multi-thousand dollar money judgment.
On a positive note, the CCB may provide a viable and affordable forum for individual creators to protect the works they create. But it’s also possible that other actors will take advantage of a new system, to the disadvantage of the rest of us.
It’s important, then, to be aware of the changes that are happening so, in the off-chance you become involved in a CCB proceeding, you don’t wind up waiving your rights without realizing it.
Jonathan E. Robe is an intellectual property and registered patent attorney with Robe Law Office in Athens, Ohio.