I finally got the time to read the amendments to the final rules for the Copyright Claims Board (aka CCB, the CASE Act’s small claims system) and, well, I’m disappointed.
First, it’s clear that a lot of thought went into the choices made, but the feeling I get from reading the Federal Register is that more weight was given to “protecting” defendants than enabling artist-plaintiffs. While many accommodations were made for pro se parties (that is, parties who do not have lawyers representing them in the process), and many of those accommodations can help both sides, overall, I think the final rules make it much more difficult for artists to participate, to win, or to win enough to make the process worth their efforts, represented or not. Worst of all, the whole system is vastly more limited than it was expected to be.
First, and generally speaking, here’s how the process works:
- File a claim using the online fillable form system and have it reviewed by the CCB’s attorneys for sufficiency; if it is, move to step 2, if not, fix the claim or drop it.
- Serve the Initial Notice (the claim) on the opposing party; if it doesn’t opt out, then it will file its response.
- The board with then issue a scheduling order with dates for things like pre- and post-discovery conferences, discovery deadlines, etc.
- Discovery, the part of the system where the sides gather info from each other, occurs and this is very limited by the rules. Forms will be used for almost all of this, too, except for the parties’ written statements.
- Discovery closes and, if needed, there is a hearing (virtual) on the matter.
- The board issues its final determination, and the parties learn who wins/loses and what any award may be.
- A request for reconsideration can be filed after that, but it’s unlikely it will change things, especially since one can’t add any new evidence or the like.
My first issue is that a defendant gets 3 strikes before a default is even considered. That is, a plaintiff files a claim, but the other side never responds or the other side agrees to the process and then later stops participating. In federal court, a plaintiff could move for a default, which is the court’s way of saying “you didn’t defend so the plaintiff wins.” In the CCB, the board will contact a non- or disappearing defendant twice more to give them the opportunity to respond (“cure” the error) before it will even think about calling it a default and awarding damages to the plaintiff. That, to me, just seems like enabling bad behavior. Although the board claims that its ability to award attorney’s fees (if it chooses!) for bad behavior will discourage it, I don’t think that’ll make a difference in the long run.
Second issue is that the discovery tool Requests for Admission (RFA) aren’t used unless a party asks to use them and shows good cause for their use (a big hurdle). Moreover, even if you do get permission to use them, if they are not responded to, they are not admitted, as they are in federal court. See, in federal court, you can send RFAs to the opposing party and they must admit or deny them (in part or whole) or state that in good faith they cannot answer because they don’t have the info to answer. If they don’t answer any one or all of the RFAs in any of those 3 ways, that or those RFA/s is/are deemed admitted as fact. Without having that consequence for non-response, RFAs are essentially useless. At most, the board can use the failure to respond as negative generally against the party, but even that is at its discretion. Big whoop.
Third, there are no depositions permitted. Period. None. Nada. No forcing the other side to look at you and answer questions under oath. Now, I could understand permitting only depositions of the parties or some other limitation, but flatly saying “no depos” is bad. I can’t imagine going into court without deposing the other party, if only to get them on record for when they later say something completely different to the court. But here, nope. None. All you get is the other side’s written statement. True, that’s all they get from you as well but, if you bring the claim, you’ve hopefully got nothing to hide anyway so a depo is not a worry. But not getting the infringer to answer questions… hamstringing.
Fourth, if a defendant agrees to mitigate or cease using the work voluntarily rather than being compelled to do so, that fact will be considered in mitigation of damages. This is infuriating to me. Someone steals a work, uses it, and then when they get caught and finally stop, they get a credit for doing so. WTAF?! Instead, the opposite should occur: if an order is required, the damages are doubled or something like that.
Fianlly, and as if all that isn’t bad enough, the very worst part to me is that a party is limited to only 10 claims per year with the CCB. Relatedly, any attorney is limited to only 40 claims per year (80 total for a firm—even if that firm has 1000 attorneys!). The rationale is that these limits will avoid so-called trolling but, considering the fact that artists of all kinds often have hundreds if not thousands of claims a year, this just sucks. Instead of being able to use this tool or have your attorney use it, you’ll have to pick and choose what cases to bring at all. Moreover, copyright attorneys will be even more reluctant to take smaller or difficult cases, since we’ll be so limited as to how many we may bring on behalf of all our clients.
And don’t get me started on how this is restraint of trade for us attorneys. Grrr.
These aren’t all my complaints about the system, but they are the big ones. It’s disappointing, to say the least. Overall, CASE was sold to the people as an effective alternative to federal court and an option for those who haven’t timely registered their works. Instead, it is turning into a greatly limited system that gives infringers all sorts of opportunities to get away with lower damages and continued poor behavior.
The good news is that you can still register your works and use the traditional federal court system. If you timely register your works, you also give attorneys like me a great tool to negotiate a settlement on your behalf without having to resort to filing suit at all.