Submission Date:
Question:
The awful CASE ACT is now a law. While I think the language is problematic, I fear trolls will try to collect money ($30,000) from libraries unaware of this change in copyright. Here is a blog post that I thought was helpful https://www.recreatecoalition.org/the-case-act-now-what/
What should we be doing? Thanks.
Answer:
For those readers who haven't been following it, the "CASE Act" authorizes the federal Copyright office to create a "small claims" division for the adjudication of "small" (under $30k, and no award of attorney's fees) copyright infringement cases. [1],[2]
Like the member, I know many attorneys who think this legislation is "awful." I also suspect that if I took an insurance carrier and a publisher out to a bar, they would think it is "pretty cool," and would toast the efforts of the well-paid lobbyists who worked so hard to ensure it got passed this December along with the federal budget.
There is a LOT of writing out there on the CASE Act, so I am going to focus on the practical aspect of the member's question: when it comes to the inevitable trolls[3] who will use genuine claims and fraudulent allusions to this new method of bringing copyright claims, what should libraries and other information professionals be aware of?
The good news is: even with new legislation, your response remains the same: keep calm, and deal with a copyright infringement allegation step-by-step.
What are those steps? Updated for a CASE Act-containing world, here is the "Ask the Lawyer" "Copyright Troll Begone!" Emergency Response Procedure.[4]
"Copyright Troll Begone!" Emergency Response Procedure
Step 1: Receiving the complaint
If your institution receives ANY assertion of copyright violation (by email, mail, phone, in person, or fax), do not immediately reply to the allegations. Never!
If the accusation is in writing, simply move on to step "2."
For interpersonal outreach (on the phone, in person, in yet another Zoom meeting),[5] state, "I am making a note of your concerns. What is a good number/email to reach you at [at least one day later]?" NOTE: Even if they keep trying to get you to argue/response/engage, don't take the bait, just set up a time to reply.
Step 2: Dealing with the complaint
Okay, you have in writing before you (either as submitted, or in your notes) an allegation of infringement. It is either: i) a scam; ii) an honest but empty threat; or iii) a problem. To determine which of these options it is, you need to either consult your lawyer, or do some research.
Step 3: If you conclude it is a scam
There are copyright-based scams all over the place, and with the CASE Act, the scammers will have yet another point of entry for their menacing but baseless threats. "You owe us $150,000!!!" "To avoid prosecution, contact us NOW." "The CASE Act means we can sue you without registration, so we're attaching your bank account for $30k." Scare tactics. Bogus claims.
If your attorney or your research shows that the complaint you received is illegitimate, I encourage you to send a copy of it to the New York Attorney General,[6] and to the Copyright Office.[7] Then you can stop thinking about the claim, and move on with your day.[8]
Step 3: If you conclude it is not a scam, or can't tell
If you examine the complaint and it seems legitimate, the only thing I can say is: consult your institution's insurance carrier and/or your attorney as soon as possible.
Even if you think your use was "fair" (as in, not an infringement), or you can show you had permission, there is too much risk in saying something that could be problematic later, if you respond to the allegation without a pro.
Step 4: Ensure the Hand-off
Make sure that whoever is handling the matter for you (attorney, insurance carrier) takes responsibility for the next steps, in writing. If an attorney is handling it, a letter or e-mail confirming they are representing your institution in the matter is essential. If your institution's insurance carrier is handling it (many general liability policies cover this...do not forget to check!), you will get a notice of "tender," telling your library that there is coverage, and if/how they will handle it (including if legal counsel will be assigned). With that assurance in writing, you are ready to get back to the business of information management.
Step 5: Check in this time next year on the CASE Act
As the blogger cited by the member writes, the CASE Act was only passed this December. Implementing it will take the federal Copyright Office some time. Or as they put it[9]:
The Office must establish the CCB by within one year of enactment, unless the Register of Copyrights, for good cause, extends the time period for no more than 180 additional days. The Office will soon begin implementation activities. Proposed regulations will be published in the Federal Register and the Office will provide updates through its NewsNet service.
We'll keep an eye on the developing regulations here, and send a "CASE Act" update this summer or early spring.
[1] If you want a more official-sounding description, here is the description from the Copyright Office: "On December 27, 2020, the Copyright Alternative in Small-Claims Enforcement Act of 2020 (the CASE Act) was enacted as part of the Consolidated Appropriations Act, 2021. The CASE Act includes a number of the Office’s earlier recommendations. It establishes a Copyright Claims Board (CCB) in the Copyright Office to hear copyright infringement matters and (1) caps damages at $30,000 total (including statutory damages of $15,000 per work, and $7,500 per work for which an application was not filed in accordance with section 412 timelines); (2) provides an opt-out option for the respondent; (3) includes streamlined procedures that limit discovery and rely mostly on written materials; (4) allows claims by both copyright owners and users for infringement and exceptions and limitations, respectively; and (5) includes additional fees for bad faith claimants and bars those who repeatedly abuse the system."
[2] Here is a link to the legislation: https://www.congress.gov/bill/116th-congress/senate-bill/1273/text
[3] "Troll" has a primary connotation of being an online provocateur, these days. But in the intellectual property world (patent, trademark, copyright), "Troll" means a person/entity who trades in IP with a goal of suing for infringement. Either meaning, of course, is nowhere near as cute as the fluorescent heroes of the "Trolls" franchise, who are just darling.
[4] Feel free to print it and put it on the wall near the "handling angry phone calls," and "don't fall for this phishing scam" lists.
[5] If they put the threat in the chat box, just grab a screenshot and continue with the meeting.
[6] You can send a consumer complaint to the NY Attorney General at https://ag.ny.gov/consumer-frauds/Filing-a-Consumer-Complaint.
[7] The Copyright Office doesn't have a fraud report utility, but you can reach them at https://www.copyright.gov/help/. You can forward a pdf of it to me, too. I collect these things the way other people collect menus or bottle caps.
[8] If you are feeling whimsical, you can say "Copyright Troll, begone!" as you put the notice in the shredder.
[9] At the update posted here as of January 28, 2021: https://www.copyright.gov/docs/smallclaims/ .
