CASE Act Flythroughnotes from a quick read of H.R. 2426
Here are my notes from a flythrough read of H.R. 2426, the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2019. I wrote these notes out on a junior legal notepad as I flipped through.
- Copyright Claims Board under Copyright Office
- judicial review under 1508(c)
- voluntary
- three-year statute of limitations
- damages for 106 claims
- declaration of noninfringement
- 501(f) misrepresentation
- 106 and 512(f) counterclaims
- legal and equitable defenses
- no claims against state or federal government
- no claims against foreign residents
- either actual damages and profits or statutory damages
- timely registered: ≤$15k per work
- not timely registered: ≤$7,500 per work or $15k per proceeding
- no willfulness findings
- ≤$30k per proceeding total, exclusive of fees and costs
- parties can agree to terms to cease
- American Rule, except for bad faith conduct
- may find joint and several liability
- may limit maximum number of claims by one claimant in a year
- must register copyright first
- registration ≤5 years from first publication: presumption
- regulations for expedited registration
- conflicting precedent: follow circuit where would have litigated, or with most significant ties
- no required in-person appearances
- internet-based
- parties may use lawyers or qualified law students working pro bono
- online service provider: must notify under 512 first
- Board can dismiss because too many proceedings or outside subject matter competence
- 60 days to opt out
- follow state law process for summons to serve process
- Claims Board to send notices, too
- opt out: dismissed without prejudice
- no formal motion practice but case management, discovery, factual submissions, law submissions
- limited discovery
- may approve additional discovery
- may issue protective orders
- may apply adverse inferences
- evidence whitelist
- no formal rules of evidence
- testimony only from parties and non-expert witnesses
- other testimony by special exception
- hearings before ≥ 2 Claims Officers
- class action: may request dismissal
- can settle
- facts: preponderance of the evidence
- majority decisions
- written opinions
- may append written dissents
- public decisions on website
- FOIA exemption
- default determinations
- failure to serve: dismiss without prejudice
- failure to prosecute: dismiss, limited challenge
- request for reconsideration: clear error, technical mistake
- request review of denial of reconsiderations before Register for abuse of discretion
- fees and costs ≤ $5k for bad faith
- for pro se: ≤$2,500
- pattern or practice: >$5k
- bar for >1 bad faith in 12 months
- regulations for small claims <$5k
- final determination precludes relitigation
- may rely on determination, other than for copyright ownership
- no citing as legal precedent
- no effect on class actions
- no citing submissions or statements
- can qualify as action seeking order to restrain a subscriber from infringing
- opt out: not binding
- district court can enforce
- one-year statute of limitations for enforcement by district courts
- courts to stay proceedings
- qualifies as ADR
- Register can change limits by rulemaking
- Register can use vendors for communications
- filing fee ≥$100, <cost of filing in district court
- one year from enactment to launch
- study after three years
Your thoughts and feedback are always welcome by e-mail.