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2018 BTLJ Comment. 1 (2018)

handle is hein.journals/btljc2018 and id is 1 raw text is: CONGRESS SHOULDN'T TURN THE COPYRIGHT OFFICE INTO A COPYRIGHT COURT Mitch Stoltz & Corynne McSherry While most people are focused on net neutrality, surveillance, and tax reform, a few legislators are quietly mulling over a different problem: copyright reform. Five years ago, Representative Bob Goodlatte, chair of the House Judiciary Committee, launched a series of hearings and studies that he said would lead to comprehensive copyright reform. EFF and many others testified on the merits and problems in virtually every facet of copyright law, and then we all waited expectantly for the Next Great Copyright Act. For better or worse, that dramatic reform never happened. Instead, we got the CASE Act, a modest effort to create a small claims process for copyright. The impetus behind this bill comes largely from photographers and other visual artists, who want a way to bring small-value copyright claims with lower expenses. They are legitimately concerned that the cost of litigation puts real copyright protection out of reach for many artists. But the CASE Act is not the right solution. First, it would create a new quasi-court within the Copyright Office. Aside from the constitutional questions that raises, the Copyright Office is not known for its neutrality on copyright issues. Second, the powers given to this new tribunal would invite gamesmanship and abuse. Third, it would magnify the existing problem of copyright's unpredictable civil penalties. Finally, it would put this new tribunal in charge of punishing DMCA abuse, but sharply limit the punishment available, undermining what little deterrent effect still exists in the statute. Let's break it down. The CASE Act Would Turn the Copyright Office into a Copyright Court The current bill, the CASE Act of 2017 (H.R. 3945), would set up a Copyright Claims Board within the Copyright Office, staffed by three Claims Officers and empowered to hear copyright complaints from all over the country. Proceedings at the Claims Board would be voluntary, but if a respondent fails to opt out, the proceedings become binding, and the outcome can be enforced in federal court. The Board can issue damages awards of up to $15,000 per work infringed, or $30,000 per proceeding. If the parties consent, it can also issue agreements to cease infringing activity that become binding injunctions. Unfortunately, the Copyright Office has a history of putting copyright holders' interests ahead of other important legal rights and policy concerns. Given this history, we fear that a quasi-court within the Copyright Office will tend to elevate copyright holders' interests above all others. The CASE Act's opt-out approach doesn't help. If the process required respondents to give affirmative consent, or opt-in, the Copyright Office would have greater incentive to design proceedings that safeguard the respondents' interests. More Automatic Civil Penalties, No Proof of Harm Required The bill would make copyright's already unfair and unpredictable civil penalty regime even worse. Current law lets courts award civil penalties, known as statutory damages, of up to $150,000 for each copyrighted work infringed. These penalties go to the copyright holder, but aren't tied to any measure 1

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