On December 27, 2020, President Trump signed the bipartisan COVID-19 relief and government funding bill. This bill incorporates the Copyright Alternative in Small-Claims Enforcement (CASE) Act, which establishes the Copyright Claims Board (CCB) and a new avenue for copyright owners to enforce their rights without having to file a lawsuit in federal court. The CCB will adjudicate small claims of copyright infringement, which should allow for a voluntary, inexpensive, and streamlined alternative to suing in federal court. 

The CCB will be made up of three copyright claims officers who will manage discovery, conduct hearings as necessary, make determinations, and award monetary and other relief. There will also be two full-time copyright claims attorneys to assist the officers. As in federal court, parties may seek actual or statutory monetary damages. However, the Board may not award more than $15,000 in statutory damages per work, may not consider whether infringement was willful, and may not award more than $30,000 in damages in any single proceeding, no matter how many claims are asserted. The officers must issue written decisions setting forth their factual findings and legal conclusions, but parties that choose to proceed before the Board will waive their right to formal motion practice and a jury trial. Board decisions may not be cited or relied upon as legal precedent in any action before any court, including the Board. Once the Board has issued its decision in any Board proceeding, the parties to the proceeding may not subsequently assert similar claims to those asserted and resolved in the proceeding in any court or other forum.

Permissible Copyright Claims

Permissible claims before the Board include:

• A claim for infringement of an exclusive right in a copyrighted work
• A claim for non-infringement of an exclusive right in a copyrighted work
• A claim for misrepresentation in connection with a notification of claimed infringement
• Compulsory-type counterclaims
• Legal or equitable defenses
• Multiple claims together or against multiple defendants as long as they arise out of the same activity

On the other hand, claims excluded from consideration by the Board are:

• Claims that are not permissible under any of the above categories
• Claims that have been finally adjudicated by a court of competent jurisdiction
• Claims or counterclaims against a governmental entity
• Claims or counterclaims against persons residing outside the U.S.

The bill further allows for a limited appellate process through which parties may ask the Board for “reconsideration” of their claims. The Register of Copyrights is given the authority to limit the number of proceedings a claimant may bring in any given year and is expected to issue regulations for proceedings before the Board, so it remains to be seen exactly how the Board will operate. Since CCB proceedings are voluntary, the question remains whether defendants will consent or opt out in favor of the federal courts.