Copyright and other intellectual property rights are the lifeblood of the video game industry, video creation, writing, and any other creative work. Creating something takes work, but once it’s created, an additional copy costs relatively little, if anything at all in the digital age. Copyright is what allows an artist to profit from their work without the fear of other people taking the creative aspect of the work and distributing it. It gives exclusive distribution rights to the creator of a creative work.
When this system works (and isn’t abused!), it’s great. You create something, you get to stop other people from using it so you can profit from it. It’s what makes it so that your video game or film can’t be distributed freely without your permission. However, there is a big problem with this system – this right to stop other people from taking advantage of your creative work isn’t really meaningful without enforcement. You could send a cease and desist letter to an infringer, court and attorney’s fees are expensive while the potential payout for small creations if they win is relatively small. You either end up spending more in court and attorney’s fees than you’ll get, or you have to find an attorney who will take the case on contingency,1This is where the attorney gets a portion of the money won in the lawsuit. The challenge with smaller claims is that there’s often not enough money for an attorney to take the case, leading to a lower chance of enforcement through the court system. which can be very difficult when the payout is so small. All of this is to say that enforcing copyright has been impossible for smaller creators without funds to protect their work, especially against smaller infringements, while larger companies are the only ones who can afford to take advantage of copyright protections. Another potential problem with the high cost of court is that smaller disputes that could be settled like accusations of infringement can’t go to court either.
With these problems in mind, a recent development in copyright enforcement has made it more possible for smaller creators to enforce their rights against infringement, as well as have other copyright issues resolved without the expensive use of federal courts. The Copyright Alternative in Small-claims Enforcement (CASE) act created an alternative to the federal court system called the Copyright Claims Board, and it began accepting cases in April of 2022. It can be thought of as the equivalent of small claims court, but for copyright cases. While the law is normally very slow to change and adapt, the Copyright Claims Board is a large step forward for copyright enforcement for smaller creators.
What is the Copyright Claims Board?
The Copyright Claims Board (CCB) was created as part of the CASE act as a means of enabling smaller creators with smaller copyright claims and fewer resources to enforce their intellectual property rights. It is a voluntary, streamlined, and more affordable alternative to the federal court system.
When a work is infringed, statutory damages are one type of damage that can be awarded by a court. The range of these damages are set by statute, and can be awarded to the copyright holder even if there isn’t any actual damages for each work infringed. Statutory damages are important for small creators because the actual damages are usually small, so this allows for some enforcement and recovery even where there is little actual damages.
When a case is before the CCB, statutory damages are limited to $15,000 per work infringed, with a total for each case of $30,000 or less. While this is less than the potential for damages in federal court, it is also a much faster and more affordable process. The process is highly simplified compared to federal court, and is designed so that parties can represent themselves without an attorney, though legal counsel is still allowed and may be preferred by some people. This helps keep costs down, furthering the CCB’s goals of allowing greater access to copyright enforcement.
Cases brought before the CCB are heard by a three-person tribunal within the US Copyright Office that has extensive expertise in copyright issues. All hearings are done virtually, so there is no need to travel as part of the proceedings. There is reduced discovery and no depositions or expert witnesses in the CCB process.
Why Would Someone with a Claim Against Them not Just Opt Out?
The CCB is a voluntary process for both claimants and respondents. If you claim someone is infringing your work, the other person, the respondent, can opt out of the CCB’s process within 60 days of being served. As such, it may seem like the CCB doesn’t actually have any power. However, respondents may find it preferable to voluntarily go along with the CCB’s process. Damages are reduced in the CCB, so the risk is much lower. If respondents opt out, a claimant can then go to federal court, which is not voluntary (that is, you can’t just opt out of federal court) and has a much higher potential for damages against them. Court and attorney fees are also much lower under the CCB, keeping potential costs even lower for both the claimant and the respondent. CCB hearings are also virtual, so there’s no need to travel, saving time and money.
Additionally, the CCB is a much faster process than federal court. Accused infringers may want to participate in proceedings in order to get any claims against them resolved as quickly as possible for various business reasons. Some insurance companies may even require participation in the CCB since it keeps actual and potential costs much lower.
The CCB works best when claimants and respondents are working through the process voluntarily. The lower potential for damages, lower costs, and faster speeds are incentives to not have respondents opt out of the process, and federal court remains an option if that fails.
Who Can Bring Cliams to the Copyright Claims Board?
Claims with the CCB can be brought by creators and developers who have a copyright interest as well as users of copyrighted works. This is especially important for creators or users who couldn’t previously enforce their intellectual property rights due to the high cost of going to federal court. In order to have a case before the CCB, your copyright must be registered with the copyright office, though your registration can be pending to start the process.
The CCB only hears copyright complaints of certain types, not other intellectual property disputes like patent or trademark. These types of cases include:
- Infringement – where someone is using your work without permission
- Declaration of non-infringement – the user of a copyrighted work is accused of infringement and is seeking that the CCB declares that they are not infringing
- 512(f) misrepresentation claims – these claims are about the copyright owner misrepresenting information as part of a DMCA takedown claim or a copyright holder claiming misrepresentation against a user of their work in a counter-notice
The existence of the CCB enables smaller game developers, video creators, authors, and other types of creators who otherwise wouldn’t have the resources necessary, to enforce their copyright against infringers as well as allow certain types of disputes to be resolved much quicker than they otherwise would be.
While the copyright system isn’t perfect and is still playing catch-up with the advent of accessible content-creation, its goals of protecting the rights of creators are noble ones. Before the CCB, only larger creators had the resources to meaningfully enforce their rights beyond a cease and desist order, particularly in cases where the damages were small. The CCB helps make this goal a reality for smaller creators and gives them the ability to make their rights against infringement more than empty threats.
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