SENATE BILL 1273 ‘COPYRIGHT ISSUE’

A Media BLACKOUT: If Senate Bill 1273 Passes You Could Be Fined $15,000 for Sharing Memes on Social Media (It’s comprehensive – profit and nonprofits – Lawyers will be part of this Office so the claimant can collect without having to hire lawyers.)

July 25, 2019 – Dean Garrison

On July 18, 2019, the Senate Judiciary Committee passed S. 1273, the Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act), legislation that will provide U.S. creators with a viable means for defending their copyrighted works through the creation of a small claims tribunal within the U.S. Copyright Office.

The bill was co-sponsored in the Senate by Sens. John Kennedy (R-LA), Thom Tillis (R-NC), Dick Durbin (D-IL), and Mazie Hirono (D-HI). Original House co-sponsors include: HJC Chairman Jerry Nadler (D-NY) and HJC IP Subcommittee Chairman Hank Johnson (D-GA), as well as Martha Roby (R-AL), Judy Chu (D-CA), Ben Cline (R-VA), Ted Lieu (D-CA), and Brian Fitzpatrick (R-PA).

The legislation creates a voluntary small claims board within the Copyright Office that will provide copyright owners with an alternative to the expensive process of bringing copyright claims, including infringement and misrepresentation under 512(f), in federal court. This new board, called the Copyright Claims Board (CCB), would allow recovery in each case of up to $30,000 in damages total, with a cap of $15,000 in statutory damages per work infringed. This comprehensive Bill overrides present copyright laws for educational purposes. It will extend to Social Media of all varieties & YouTubes.

Please read the bill. It will keep you from fines you can’t afford! https://www.congress.gov/bill/116th-congress/senate-bill/1273/text

72. S.1273 — 116th Congress (2019-2020) CASE Act of 2019 Sponsor: Sen. Kennedy, John [R-LA] (Introduced 05/01/2019) Cosponsors: (18) Committees: Senate – Judiciary Committee Reports: S. Rept. 116-105 Latest Action: Senate – 09/12/2019 Placed on Senate Legislative Calendar under General Orders. Calendar No. 206. (All Actions)

S. Rept. 116-105 – COPYRIGHT ALTERNATIVE IN SMALL-CLAIMS ENFORCEMENT (CASE) ACT OF 2019

COPYRIGHT ALTERNATIVE IN SMALL-CLAIMS ENFORCEMENT (CASE) ACT OF 2019

September 12, 2019.–Ordered to be printed .   Mr. Graham, from the Committee on the Judiciary, submitted the following R E P O R T [To accompany S. 1273] The Committee on the Judiciary, to which was referred the bill (S. 1273) to amend title 17, United States Code, to establish an alternative dispute resolution program for copyright small claims, and for other purposes, having considered the same, reports favorably thereon without amendment and recommends that the bill do pass.

III. Section-by-Section Summary of the Bill

Section 1. Short title This section of the bill provides that the legislation may be cited as the “CASE Act of 2019” or the “Copyright Alternative in Small-Claims Enforcement Act of 2019”.

Section 2. Copyright Small Claims This section of the bill creates a new Chapter 15 within Title 17 of the U.S. Code entitled “Copyright Small Claims” as follows:

Sec. 1501 Definitions This section creates definitions for the purposes of the new Chapter 15 for the terms `party’, `claimant’, `counterclaimant’, and `respondent’.

Sec. 1502 Copyright Claims Board This section establishes a new Copyright Claims Board housed within, and supported by, the U.S. Copyright Office. Three full time Copyright Claims Officers who are appointed by the Librarian of Congress after consultation with the Register of Copyrights will serve on the Copyright Claims Board. Specific skills and background criteria are listed for the Board members. The Register shall also hire no fewer than two Copyright Claims Attorneys with specific backgrounds to assist the Copyright Claims Board. The pay rates for the Officers and attorneys are specified along with a staggered initial term of 4, 5, and 6 years for the Officers in order to provide continuity for the Board as each term ends. All future terms are for 6 years with a specified process for filling vacancies either at or prior to the expiration of the associated term. Interim appointments are permitted in case of a temporary inability of an Officer. The Librarian has standing authority to sanction or remove an Officer subject to Section 1503(b).

Sec. 1503 Authority and duties of the Copyright Claims Board This section sets forth the authority and duties of the Board. Eleven functions of the Officers are specified along with four functions of the Attorneys. All Board determinations shall be made independently although the Officers and Attorneys may consult with the Register on general issues of law, but not in regards to the fact of a particular matter unless that matter is the subject of a review by the Register under Sec. 1506(x). The Officers and Attorneys are barred from inconsistent duties, subject to mandatory recusal, and are barred from ex parte communications. The Officers and the Attorneys serve under the general direction of the Register of Copyrights. All actions of the Board and Register in connection with a determination are subject to judicial review as specified in Sec. 1508(c).

Sec. 1504 Nature of proceedings This section specifies that participation in a Board proceeding is voluntary and that any party may instead pursue a claim, counterclaim, or defense as well as seek a jury trial in a U.S. district court or other appropriate court. There is a three-year statute of limitations for all claims and the time for an action in district court is tolled during the time a proceeding is pending before the Board. Permissible claims and counterclaims are identified in Subsection (c) including infringement of an exclusive right in a copyrighted work by the owner or beneficial owner, a claim for a declaration of non-infringement, and claims under Section 512(f) for misrepresentation in connection with a notification of claimed infringement or a counter-notification (usually referred to as a DMCA Section 512 notice and takedown claim). Subsection (d) further identifies impermissible claims. Subsection (e) identifies the permissible remedies. For infringement claims only, allowable monetary recovery is limited to actual damages, profits, and statutory damages which are capped at either $7,500 or $15,000 per work depending upon timely copyright registration. Willfulness is not to be determined although the Board may consider in assessing damages whether the infringer has agreed to cease or mitigate the infringing activity. For all proceedings, the total monetary recovery excluding any costs or attorneys’ fees that may be awarded due to bad faith conduct is capped at $30,000. Joint and several liability may be found by the Board. Subsection (f) authorizes the Register of Copyrights to cap the number of proceedings brought by the same claimant each year in order for the system to run effectively. The same claimant is defined as the same real party in interest as defined in Section 1501.

Sec. 1505 Registration requirement For claims or counterclaims involving alleged infringement, claim or counterclaim cannot be asserted before the Board unless the legal or beneficial owner of the copyright has filed a copyright application, deposit and required fee with the Copyright Office and a registration certificate has been issued or has not been refused. While the Board may hold a proceeding with respect to the pending claim(s) where a registration certificate is pending before the Copyright Office, the Board may not render a determination until the registration certificate is issued by the Copyright Office and shared with the other parties. If there is more than a one year delay before a certificate is available, the Board may dismiss the proceeding without prejudice. The Register may establish expedited proceedings to process registration applications for works that are the subject of a Board proceeding. Proceedings may be held in abeyance automatically for up to one year pending submission of a registration certificate. After one year, the Board may dismiss the proceeding without prejudice upon notice and a 30 day response period to the parties. The same presumption under Section 410(c) applies for works registered not less than 5 years after the date of publication. The Register is directed to establish regulations concerning expedited registration procedures for works before the Board.

Sec. 1506 Conduct of proceedings This section sets forth the Board proceedings in detail. In general, the Board is directed to follow the legal precedents applicable in the jurisdiction most applicable to the claim. Subsection (b) requires the Board to maintain records to document all proceedings. Subsection (c) notes that no in-person appearances are required and that video conferencing is encouraged. Subsection (d) states that parties are not required to have legal representation, but may choose to have an attorney or a pro bono legal clinic represent them. Pursuant to subsection (e), a proceeding is commenced only after a statement of material facts is filed by the claimant along with the filing fee specified by the Register. Before a claim is heard, subsection (f) requires that it must first be reviewed by a Copyright Claims Attorney who has the authority to require a refiling with specified deadlines if the original filing does not comply with applicable regulations.

Claims shall be dismissed without prejudice if a claim cannot be heard by the Board due to the failure to join a necessary party; the lack of an essential witness, evidence or expert testimony; or the determination of the claim imposes too great a burden upon the Board or is beyond the subject matter competence of the Board. Counterclaims are permissible after a similar review by a Claims Attorney. Pursuant to subsections (g) and (h), claims must be served within 90 days of approval of the claim by a Board Attorney using a standardized process and notice format established by the Register.

The notice shall contain a prominent statement concerning a 60 day opt-out mechanism and the impact of not opting out. Several requirements govern the service of the notice and waivers of personal service. The Board may maintain its own list of designated agents that have been submitted by corporations, partnerships, or unincorporated associations. Personal service may also be waived via a prepaid option of returning a signed form to the Board. However, waiver of personal service does not constitute waiver of the right to opt-out. All service of a claim and waiver of personal service may only occur within the United States. The means of service for other documents are governed by regulations established by the Register of Copyrights pursuant to subsection (j).

The opt-out procedure in subsection (i) sets forth that respondents have 60 calendar days to opt-out of the small claims process after being served with the claim. After the respondent does not opt out, the proceeding is considered to be active pursuant to subsection (k) allowing for scheduling of the proceeding in addition to conferences and discovery authorized in subsection (l) to occur. Subsections (m), (n), and (o) govern the materials and evidence to be considered by the Board. Discovery shall occur pursuant to regulations established by the Register. There is no formal motion practice before the Board, although the Board may request submissions sua sponte or at the request of parties to the proceeding. Mandatory submission of discovery materials is limited to the parties in the proceeding although the Board may request voluntary submissions from non-parties. Any confidential information may be covered by a protective order to limit public disclosure.

The Board may consider relevant evidence to the claims in a proceeding including sworn testimony. Expert witnesses are not permitted unless the Board agrees that good cause can be shown for them. Subsections (p), (q), (r), (s), and (t) provide the statutory framework for how hearings are conducted including potential voluntary dismissals and settlements. Conferences may be held by one or more Officers which may be recorded or transcribed to assist the other Board members as well as being part of the claim record. Board determinations shall be made by a majority of the Officers, in writing and based upon a preponderance of the evidence standard. All determinations shall be made publicly available although confidential information shall be redacted. Information related to the proceedings are exempt from FOIA. Subsections (u) and (v) address proceedings that are not able to proceed either due to a respondent’s default or a claimant’s failure to proceed. Unless a justifiable cause can be shown, a respondent can be found in default if they fail to appear or cease to participate in a proceeding.

If this occurs, the Board shall prepare a proposed default determination after a showing of sufficient evidence by the claimant and provide a written notice with the proposed finding to the respondent and give the respondent 30 days to provide information in opposition to the proposed default determination. Such default determination may only be challenged pursuant to Section 1508(c). If a claimant fails to complete service, each respondent with failed service shall be dismissed without prejudice. If a claimant fails to prosecute, the Board may dismiss the claim and award attorneys’ fees and costs as appropriate. Requests for reconsideration are permitted in writing to the Board within 30 days after the final determination, pursuant to subsection (w).

Pursuant to subsection (x), if the request is refused by the Board, a party may appeal for a review by the Register of Copyrights who shall determine if the Board abused its discretion in denying reconsideration and, if abuse is found, remand the claim to the Board for specific issues identified in the remand. Subsection (y) authorizes actions by the Register and the Board to take specific actions in order to address bad faith conduct through awarding attorneys’ fees, costs, and financial sanctions in the amount of up to $5,000 ($2,500 if the adversely affected party appeared pro se) or higher in cases of extraordinary circumstances or where a pattern or practice of bad faith conduct has occurred. Parties can also be barred from Board proceedings if on more than one occasion within a 12 month period they come before the Board for a harassing or other improper purpose. If such abuse is found by the Board, the party is then banned from initiating a claim before the Board for an additional 12 months from the date of the finding. The Register of Copyright is also directed to establish regulations to hear claims below $5,000, exclusive of any attorney’s fees and costs, by one Claims Officer. These regulations are to be as consistent as possible with the regulations that apply to larger claims except where reasonably necessary to enable such claims to be heard.

Sec. 1507 Effect of proceeding This section sets forth the non-precedential effect of Board determinations and the inability of anyone to use a statement or submission in a claim before the Board in any other forum. The conditions by which a claim before the Board qualifies as an action seeking an order to restrain a subscriber from engaging in infringing activity under Section 512(g)(2)(C) are identified. The non-impact of a proceeding upon class actions is highlighted in addition to the applicability of claims or counterclaims before the Board to Section 512(g)

Sec. 1508 Review and confirmation by district court Subject to meeting specified filing procedures, a party that has failed to pay damages awarded by the Board or otherwise complied with the relief awarded in a final determination may seek enforcement in an appropriate U.S. district court. Within 90 days of a final determination by the Board, a party to the proceeding may seek an order vacating, modifying, or correcting a determination of the Board if it was issued as a result of fraud, corruption, or other misconduct; if the Board exceeded its authority; or if excusable neglect causes the issuance of a default determination.

Sec. 1509 Relationship to other district court actions This section identifies the nature of the relationship between the Board and other district court actions including the qualification of a proceeding before the Board as an alternative dispute resolution process under Section 651 of Title 28.

Sec. 1510 Implementation by Copyright Office The Copyright Office is authorized to establish regulations to carry out this new Chapter 15 of Title 17. The Register is authorized to adjust the limits on monetary relief after a 120-day review period by Congress. The filing fee for a claim is set at a minimum of $100 and the maximum at the cost of the filing fee for an action in a U.S. district court.

Sec. 1511 Funding This section authorizes funding necessary to operate the Copyright Claims Board. Section 3. Implementation This section of the bill provides that the Copyright Claims Board shall begin operations within one year of enactment. Section 4. Study This section of the bill provides that not later than 3 years after the first determination by the Board, the Register of Copyrights shall conduct a study on the operation of the Board including potential recommendations for changes to the operation. Section 5. Severability This section of the bill provides a severability clause incorporated into the legislation. Summary source: https://www.congress.gov/congressional-report/116th-congress/senate-report/105

Bold lettering added by editor

Shalom, editor Rita Williams of Cephas Ministries

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