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A new copyright proposal would protect designers online — but at what cost?

A new copyright proposal would protect designers online — but at what cost?


Critics worry the CASE Act would be a replay of the DMCA

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Photo by Caroline Brehman/CQ Roll Call

For years, independent artists working online have struggled with designs being stolen, often by much larger companies. Given the expense and intricacy of a federal copyright lawsuit, those artists have had no good options for fighting back, even as infringing products pile up on seller platforms like Amazon.

Now, Congress is trying to fix the problem. A new bill currently moving through the Senate would equip the Copyright Office to go after those infringing products, letting original artists push back without filing suit in federal court. But the proposal has alarmed copyright critics, who worry the bill would unleash a flood of small copyright claims that would ultimately harm the same artists it’s trying to protect.

The Copyright Alternative in Small-Claims Enforcement Act, or the CASE Act for short, was voted out of the Senate Judiciary Committee last week and, if approved, it would essentially create a small-claims court within the Copyright Office. Groups like the Graphic Artists Guild (GAG) and the Copyright Alliance have been working to get support for this bill in Congress for close to six years, but as anti-tech sentiment builds, the proposal seems poised to finally break through.

“When people get these takedowns, they don’t know what to do”

“Currently, graphic artists see their work repeatedly infringed by those who use their works without permission or compensation, creating a loss of licensing income which can be devastating to individual creators and the small businesses they represent,” the Graphic Artists Guild wrote earlier this year. “The legal costs of such an action often dwarf the potential recovery, making it difficult for small copyright holders to find legal counsel.”

If the CASE Act were to become law, the new small claims system would be staffed full time by three “Copyright Claims Officers” who would work to resolve infringement claims. Damages would be capped at $15,000 for each work infringed, and $30,000 in total. Any involvement with the system would be voluntary, because even though this new system would help creators receive retribution for infringements, it wouldn’t be a trial by jury.

This is where consumer advocacy and policy groups like the Electronic Frontier Foundation (EFF) and Public Knowledge start to see flaws. “While we acknowledge the problems faced by independent artists, and don’t object to the theory of a small claims court, we have grave concerns about how the CASE Act executes that idea. It lacks meaningful opt-in consent for all parties, structural safeguards against abuse, and legal accountability through a right of appeal,” Meredith Rose, policy counsel at Public Knowledge, said in a statement. 

“A tribunal with that kind of punitive power must be accountable,” Rose continued. “The system envisioned by the CASE Act is not.”

Leaving the Copyright Office in a position to determine complaints also raises concerns over whether the staffers will feel empowered to interpret the First Amendment or fair use, something that has traditionally, and legally, been held within the courts. 

Katharine Trendacosta, manager of policy and activism at EFF, suggested that the CASE Act would be similar to the DMCA’s takedown provision, creating a wave of specious copyright claims that are hard to resist or appeal. “DMCA is really easy to abuse on all sides,” Trendacosta said. “When people get these takedowns, they don’t know what to do and you have a lot of people who really shouldn’t need to be legal experts having to learn law really fast to try to defend themselves.” 

The Senate Judiciary Committee approved the legislation quickly and without a hearing, and there hasn’t been as much momentum in the House. But, after all of these years, it’s clear that creators need a new system for copyright complaints. The CASE Act just might not be their solution. 

“For more than a decade,” the Copyright Alliance wrote in a May statement, “individual creators and small businesses have been advocating for a change in the copyright law to address an inequity that has routinely provided them with rights but no remedies.”