New Copyright Laws Create Small Claims Court, Regulate Streaming

The 5,500-page COVID-19 stimulus relief and government-funding bill signed into law in December included several copyright provisions that had nothing to do with the pandemic.

Small Claims

The Copyright Alternative in Small-Claims Enforcement Act (“CASE Act”) created a Copyright Claims Board (CCB) – a sort of “small claims court” for relatively small copyright disputes.

The CCB can consider the following types of issues:

• Copyright infringement
• Declarations of non-infringement of copyright
• Claims for failure to remove or disable access to allegedly infringing content under the Digital Millennium Copyright Act (DMCA)
• Misrepresentation in connection with a DMCA claim
• Counterclaims in connection with the above
• Defenses to copyright infringement claims, such as first sale and fair use

The CCB can award up to $15,000 in statuary damages per copyrighted work, no more than $30,000 in total actual or statutory damages, and no more than $5,000 in attorney’s fees in cases of bad faith, unless a party can show unusual circumstances.

Regular copyright cases in federal courts do not have these limits.

Filing fees to bring matters before the CCB will be cheaper than for filing federal cases, discovery is limited, and the federal rules of evidence won’t apply. This may make the new small claims court popular, and deter relatively minor acts of infringement, but could also lead to abuses by “copyright trolls.”

The CCB will start operating by December 27, 2021 unless the Copyright Office seeks a delay.

Streaming

The “Protecting Lawful Streaming Act” adds a new section 2319C to title 18 of the U.S. Code.
This addresses the “felony loophole” that copyright owners have been complaining about for almost ten years.

Infringing copyright by reproducing or distributing someone else’s content without a license is a felony, as well as grounds for a civil suit for copyright infringement. However, infringing the rights in public performances was previously treated as only a misdemeanor.

The new law, as CNN reports, targets "commercial, for-profit streaming piracy services" that make money from illegally streaming copyrighted material. It doesn’t target consumers of such services.

According to the bill’s sponsor, intellectual property piracy costs the US economy close to $30 billion per year. For example, two Las Vegas computer programmers earned more than $1 million from pirating shows from Netflix and Hulu and streaming them illegally.

Violators can be imprisoned up to ten years for multiple offenses.

Gale Anne Hurd, the noted producer of The Walking Dead, Aliens, and Terminator, noted in Deadline that

Piracy has been around forever, and I have been dealing with it, in one form or another, for my entire career – starting when bootleg VHS copies of my original Terminator film were being sold on street corners. But the amount of harm we suffered from bootlegs was peanuts compared to today’s internet-driven piracy. Multinational criminal enterprises now push monthly subscriptions to streaming services with names like Lazer IPTV and Pegasus, selling stolen content libraries that are as easy to use as Netflix – but vastly larger – and they include live channels from all over the world.

She also pointed out that consumers can be hurt by pirate streaming sites because one out of three such sites infects users with malware or other harmful code.