The Protect Lawful Streaming Act was passed on December 2020, as part of the Covid-19 stimulus omnibus bill, the Consolidated  Appropriations Act, 2021.

The Act adds a section 2319C to the Copyright Act on digital transmission services, defined as services having as a primary  purpose  to publicly perform works by digital transmission. The Act prohibits providing such services commercially or for financial gain without the authorization of the  copyright owner.

The penalties are a fine and imprisonment for not more than three years, or both, or imprisonment for not more than five years, or both, if the offense “was  committed  in  connection with  one or more  works  being  prepared  for  commercial public performance; and … the   person   knew   or   should   have   known  that  the  work  was  being  prepared  for  commercial public performance.” The penalty can be a fine and 10 years in prison if the offense is a  second or subsequent offense under section 2319C  or  Section 2319(a).

The ‘‘Copyright  Alternative  in  Small-Claims  Enforcement  Act  of 2020’’ or ‘‘CASE Act of 2020’’ was also passed as part of the omnibus bill. It creates Chapter 15 of the Copyright Act and establishes a Copyright Claims Board in the Copyright Office (CCB)), which much be established within one year of the enactment of the Act.

Composition of the Copyright Claims Board

The CCB, which will be an administrative tribunal for matters related to copyright,  will be composed of three full-time Copyright Claims Officers appointed by the Librarian  of Congress, after consultation with the Register of Copyrights, who must be attorneys with a least seven years of experience, and who must “have substantial familiarity with copyright law  and  experience in the field  of  alternative dispute resolution, including  the resolution of litigation matters  through that method  of  resolution.” The three Officers will be appointed, respectively, to a four-year term, to a five-year term, or a six-year term.

The Register of  Copyrights must also hire at least two full-time Copyright Claims Attorneys  “to  assist  in  the administration of the Copyright Claims Board,” which must have “substantial  experience in the  evaluation,  litigation, or adjudication of copyright infringement claims” and no fewer than three years  of  “substantial experience in copyright law.” They will be appointed to a five-year term.

Both Copyright Claims Officers and Copyright Claims Attorneys will have to recuse themselves if there they have reason to believe there is a conflict of interest. Parties will have to refrain from ex parte communication with the Copyright Claims Officers and the Copyright Claims Attorneys.

Participation in CCB proceedings is voluntary, but respondents need to opt-out within 60 days

Participation in a CCB  proceeding is voluntary, and the parties retain their right to pursue their claim in a court of law “or any  other  forum.” However, if a respondent fails to opt out within a 60-day period after having been served by the claimant, she or he “loses the opportunity to have the dispute decided  by  a court  created  under  article  III of the U.S. Constitution and waives the  right  to  a  jury  trial  regarding the dispute.”

The respondent will be able to file a counterclaim.

Scope of jurisdiction

The CCB will have power to adjudicate copyright infringement claims if the claim does not exceed $30,000. The CCB will also be able to adjudicate claims for a declaration of noninfringement of a copyright, and claims of section 512(f)  DMCA misrepresentations, that is, a misrepresentation in the DMCA takedown notice of the infringing nature of a material or activity, or that a “material or activity was removed or disabled by mistake or misidentification.”

Applicable laws

The CCB will follow the regulations  established by the Register of Copyrights under the new Chapter 15 and other “relevant  principles  of  law  under this title.” In case of conflict with “a judicial precedent on an issue of substantive copyright  law  that cannot  be  reconciled,” then the CCB  will “follow the law of the  Federal  jurisdiction  in  which  the  action  could  have  been  brought  if  filed in a  district court  of  the United  States,  or, if  the  action  could have been brought  in more than one such  jurisdiction, the  jurisdiction that  the  [CCB]  determines has the most significant ties  to the  parties and conduct at issue.” It thus appears that the parties will still being able to benefit from the positions and tests used by the Courts in their respective Circuits.

Legal representation

The proceedings will take place at the CCB offices, and the parties will not have to be present. The procedure will be written, but the CCB will be able to hear the parties or their counsels  via “internet-based applications and  other telecommunications  facilities,  except  that,  in  cases  in which  physical  or  other  nontestimonial  evidence  material  to  a proceeding” cannot be thus provided to the CCB, in which case the CCB “may make  alternative arrangements for the submission of  such evidence that do  not  prejudice any other  party to  the proceeding.”

The parties can be represented by an attorney or by a law student “who is  qualified under applicable law  governing  representation  by  law  students  of  parties  in  legal proceedings  and who  provides  such representation on a pro bono basis.”

Procedure – the claim

Parties will initiate the proceeding by filing a claim with the CCB  which will include a certified statement  of  material  facts  in support of the claim and a filing fee. The amount of the fee will be established by the Copyright Office, which indicated in its Small Claims Report (see note p. 140)  that “[a] conforming amendment to section 708 may be advisable.”

The claim will be then reviewed by a Copyright  Claims  Attorney to  ensure  that  the claim  is compliant with Chapter 15 and other applicable  regulations. The statute of limitations is three years after the claims accrued.

If the claim is compliant, the claimant is notified and can then serve it  to the defendant. If it does not comply, the claimant will be permitted to file an amended claim withing thirty days after receiving the notice that the claim does not comply and will have to file an additional filing fee.  If the claim is still not compliant, the claimant  will be given a second opportunity to amend the  claim not  later than thirty  days  after the date of the second notice of non-compliance, without having, however, to pay another filing fee. If the claim is still not complaint, the proceeding will be dismissed without prejudice.

If the claim is against an  online service  provider storing infringing material or linking to it, the claim will have to state that the claimant has previously notified the service provider by a DMCA notice, and that the  service provider has failed  to expeditiously remove or  disable  access to  the  material  after receiving such notice. The opposing parties can file a counter claim, which compliance is similarly reviewed by a Copyright  Claims  Attorney.

All claims can be dismissed without prejudice for unsuitability by the CCB  if the CCB concludes that a necessary party or an essential witness has not been contacted, or if evidence or expert testimony is lacking, or if the claim involves an issue exceeding the competence scope of the CCB, or if the claimant becomes a member  of a class action.  A claim can also be voluntary dismissed, with no prejudice, by the claimant.

Even if a claim is compliant, the parties can choose any time to settle the case, either during a conference with a Copyright Claim Officer or by submitting a settlement proposal to the CCB.

If the claim proceeds, the CCB will have the power to make factual determinations, based upon a preponderance of the evidence.

If the respondent to the claim does not appear, or failed to pursue defending the claim, the CCB can issue its decision by default.

Permissible remedies

The CCB may award actual damages and profit. It can also award statutory damages, which cannot exceed $15,000 for each work infringed. Statutory damages cannot exceed $7,500 per work infringed or a total of $15,000 in any proceeding.

Effect of a CCB determination

If the CCB issues a final determination, including a default determination, it will preclude, solely with respect to the parties to such determination, the case to be litigated again before any court or tribunal, or before the CCB,  of  the  claims  and  counterclaims  asserted  and  determined  by  the  CCB. However, parties will be able to litigate again, in a court of law or with the CCB, about the same facts, about claims or counterclaims which were either not previously asserted or which had not been determined by the CCB. Also, if the CCB determined ownership of a copyright for the purposes of resolving the case, such determination  will not have any  preclusive  effect in any other action or  proceeding before  a court of law or a tribunal , including the CCB.

No legal  precedent

Decisions by the CCB will not, however, be relied upon as legal precedent, and thus a CCB caselaw will not stem from the adjudicated claims. Following the cases is, however, likely to be enlightening, especially since a Copyright Claim Officer dissenting with a CCB decision will be able to file her or his dissent. This is particularly interesting as all final  determinations of the CCB will be published on a website. Parties will be able to submit a written  request for reconsideration or amendment  of a final determination made by the CCB, if done no later than thirty days after the issuance of the final  determination, “if the party identifies a clear error of law or fact material to the outcome, or a technical mistake.”

Possible negative effect of the CCB

While the CCB will make it easier and less costly for copyright holders to defend their rights, and this is certainly a positive effect, it may also lead to frivolous claims be filed, and so called “copyright-trolls” who engage in mass copyright litigation may find it an efficient tool to pursue their trade.

Positive effect of the CCB

Artists, writers, small businesses, and entrepreneurs will be able to defend their rights at a cost much lower than the costs of litigation in a federal court (the court which has jurisdiction over copyright cases).  The Register of Copyrights will also establish regulations for claims seeking  less than $5,000 (exclusive  of  attorneys’ fees and  costs). In these cases,  at least one Copyright Claim Officer will determine the outcome of the case and the determination will have the same effect as one issued by the entire CCB.

Image is courtesy of Flickr user Alan Levine under a CC BY 2.0 license.

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