LEGAL ISSUES Section Editors: Bruce Strauch (The Citadel, Emeritus) <[email protected]> Jack Montgomery (Western Kentucky University) <[email protected]> Legally Speaking — The Covid-19 Stimulus Bill and Copyright Column Editor: Anthony Paganelli (Western Kentucky University) <[email protected]> fter months of arguments and negotiations, the federal fringement and avoid extensive legal fees. Secondly, it may provide government passed the Covid-19 Relief and Government a platform for copyright owners seeking quick financial resolution. AFunding bill on December 27, 2020. As with many bills Yet, numerous artist organizations support the CASE Act. created and passed in Congress, there are often other bills Rosenbaum (2020) noted the statement released by the orga- attached to the major bill. In the over 2,000 pages Covid-19 nizations that stated, “We also welcome the inclusion of con- Relief and Government Funding bill, numerous other bills were sensus-driven intellectual property reforms in the omnibus bill. attached that included two acts regarding copyright law. The The Copyright Alternative in Small-Claims Enforcement (CASE) Act Copyright Alternative in Small-Claims Enforcement Act of 2020 or and Protect Lawful Streaming Act (PSLA) will strengthen creators’ also known as the CASE Act and Protecting Lawful Streaming Act ability to protect their works against infringement online, and were attached to the December 2020 Stimulus Bill. promote a safer, fairer digital environment, which are While the CASE Act and the Protecting Lawful Streaming particularly needed as the arts struggle to survive the Act was attached to the Stimulus Bill, these copyright pandemic. We look forward to continuing our work legislations have been a work in progress for nearly to provide greater relief for the American creative 10 years. The legislation went through several community” different hearings and revisions before it passed The CASE Act provides revisions to the Copy- the House of Representatives and then sent to the right Code U.S.C. 17 most notably the opportunity Senate committee that was unopposed and then for copyright owners to avoid filing copyright included with the Stimulus Bills. infringement lawsuits in the federal courts. The The Protecting Lawful Streaming Act regards act allows the copyright owners to seek actual or the 18 U.S.C. § 2319C Criminal Infringement of a statutory damages within a specific financial range. Copyright and the 17 U.S.C. § 506 Criminal Offenses. This range stated that no more than $15,000 can The criminal offenses and the criminal infringement be awarded per copyrighted work, $7,500 per work, stated in the U.S. Codes regards the type of criminal and not more than $30,000 in a single proceeding. In charges for the reproduction and distribution of addition, attorney fees can be recovered if the case was copyrighted works, which a felony charge is the type of criminal in “bad faith conduct” and this does not exceed $5,000. For charge for violating the criminal offenses. those Per Se cases, the amount is $2,500. According to JDSU- The streaming act addresses the criminal charges for violating PRA, “bad faith conduct occurs if it is established that a party streaming copyrighted works, because the change in technology pursued a claim, counterclaim, or defense for a harassing or has created a need for more strict laws to prevent the abuse of other improper purpose, or without a reasonable basis in law streaming copyrighted works. The Protecting Lawful Streaming or fact” (2021). The claims board can also require the infring- Act places a felony penalty against those that violate the U.S. er cease the infringement and to “cease sending a takedown Code, along with an up to 10 year prison sentence. The act notice” (JDSUPRA, 2021). does not pertain to the user of the streaming content, rather In order for copyright owners to avoid filing with the federal the “digital transmission service” that violates the provisions courts, the act creates a Copyright Claims Board to oversee stated in the act (Dunn, 2020). the infringement suits that is “within the Copyright Office in The most interesting act in the Stimulus Bill is the CASE Washington, D.C.” (Dunn, 2020). The board is comprised of three Act, which provides those copyright owners an opportunity to copyright claims officers appointed by the Library of Congress seek damages for copyright infringement that does not exceed with four, five, and six years respectively” (JDSUPRA, 2021). To a specific financial limit. Prior to this act, copyright owners had help the board, Copyright Claims attorneys will be hired. to file a claim with the Federal courts, which was extremely time In order to file a claim with the Copyright Claims Board, the consuming. In addition, several cases of copyright infringement claim must be “infringement, declaration of non-infringement, did not seek large monetary damages that would not deem wor- misrepresentation in connection with a notification of claimed thy of a file within the Federal courts, therefore theCASE Act of infringement, and legal or equitable defenses brought in re- 2020 provides a legal resolution for copyright infringement cases. sponse to such a claim” (JDSUPRA, 2021). Those claims that The CASE Act of 2020 basically offers two outcomes. First, the are statutorily excluded are “claims not identified as permitted, act provides a system that would encourage against copyright in- claims previously adjudicated by a court or pending before a 28 Against the Grain / February 2021 <https://www.charleston-hub.com/media/atg/> court unless the court grants a stay permitting the Copyright Rosenbaum (2020) provided further information about the Claims Board to proceed, claims against Federal or State gov- legislation with Copyright Alliance’s CEO Keith Kupferschmid ernmental entities, and claims against person residing outside statement, “For far too long, these individual creators have had the United States unless that person initiates the proceeding” rights but no means of enforcing them due to the expense and (JDSUPRA, 2021). complexity of federal court.” Kupferschmid noted that the CASE Interestingly, these small claims submitted to the Copyright Act would provide copyright owners an inexpensive way to seek Claims Board are reviewed in the Board’s office, without the damages for copyright infringement. parties involved to be in appearance. In fact, the claims are The CASE Act has the potential to efficiently streamline submitted and reviewed through electronic sources. In addition, copyright infringement cases, yet there is concern about whether hearings and conferences are conducted via online applications the copyright tribunal would effectively and fairly resolve these unless the claims board cannot access the physical information issues that would be best tried in the Federal court system. In through electronic documents. JDSUPRA (2021) noted that “The addition, there has to be concern whether the tribunal would Copyright Claims Board may make arrangement for certain send the complicated and unresolved cases to Federal court, physical or nontestimonial evidence that cannot be presented which could be significant in the interpretation of the U.S. in this manner.” Of course, the board must abide to Federal Copyright Law. regulations regarding Copyright infringement. This act appears to be a fast-track resolution to resolving References copyright infringement cases based on the monetary damages Copyright.gov. (2020). Congress passes CASE Act of 2020 and sought by the copyright owner. Without a doubt, those low law regarding unauthorized streaming services. Issue no. 866. monetary claims will move quickly through the Copyright Claims Retrieved from https://www.copyright.gov/newsnet/2020/866. Board for a resolution, yet some issues may arise throughout this html#:~:text=Late%20last%20night%2C%20Congress%20 new system that includes copyright holders taking advantage passed,the%20Consolidated%20Appropriations%20Act%2C%20 of the system. 2021. For instance, in my Against the Grain article “Creative Com- Dunn, Gibson. (2020). Covid-19 Relief Bill creates new mons and Infringement” I noted that a photographer allowed small claims copyright board, stronger criminal penalties for the use of his works for free based on the Creative Commons illicit streaming. Retrieved from https://www.gibsondunn.com/ Licensing agreements. However, the photographer filed numer- wp-content/uploads/2020/12/covid-19-relief-bill-creates-new- ous infringement lawsuits in the Federal Court. These suits filed small-claims-copyright-board-stronger-criminal-penalties-for- by the photographer eventually gained him the attention of a illicit-streaming.pdf. judge that labeled him based on his numerous lawsuits as the JDSUPRA. (2021). Congress passes CASE Act of 2020 and “Copyright Troll” (Paganelli, 2021). In other words, the CASE Act law regarding unauthorized streaming services. Retrieved from of 2020 could increase the actions from copyright owners against https://www.jdsupra.com/legalnews/congress-passes-case-act-of- those utilizing their works in an effort towards monetary gain. 2020-and-8502725/. Of course, there is opposition from other organizations re- Paganelli, A. (2021). Creative commons and infringement. garding the legislation being included and passed via the Stim- Against the Grain, 32(6). ulus Relief Bill. Rosenbaum noted that the Electronic Frontier Foundation was not in favor of the legislation. According to Rosenbaum. C. (2020).