A small claims copyright tribunal: one small step for art, one giant step for artists?

Imagine you’re an aspiring artist, a photographer, novelist, or drummer, and you discover your work being sold without your permission. Copyright infringement lawsuits exist in theory, but they’re financially impractical for most creators. According to a 2015 American Intellectual Property Law Association survey, the cost of a single copyright litigation case with less than one million dollars in damages was about $270,000.

Congress introduced House Resolution 3945, the Copyright Alternative in Small-Claims Enforcement Act of 2017 (the CASE Act), to address that barrier. The legislation proposes a Copyright Claims Board: a specialized tribunal staffed with copyright experts to decide infringement disputes affordably.

Jurisdiction and due process

Critics contend the Board bypasses the federal courts’ exclusive copyright jurisdiction. It would operate under the Copyright Office, with officers appointed by the Librarian of Congress and removable only for fraud, corruption, misrepresentation, or other misconduct. Appeals would go to the Register of Copyrights rather than the federal courts, except in limited circumstances.

The CASE Act does, however, require consent. Respondents can decline the Board’s jurisdiction, in which case the federal courts retain authority. That built-in protection addresses the due process concern, though the prohibitive cost of litigation still creates a practical barrier regardless.

Limits on damages

The Board’s jurisdiction covers cases involving up to $30,000 in damages, roughly five times the ceiling of most state small claims courts. It could award statutory damages under 17 U.S.C. § 504, capped at $15,000 per work and $30,000 total, well below the $150,000 available for willful infringement in federal court.

The opt-out system

The Board is an opt-out tribunal. A respondent who receives notice can decline, sending the matter to federal court. A respondent who does nothing falls under the Board’s authority by default. That raises a real concern about “default judgment farming,” where claimants file expecting the respondent not to appear.

Conclusion

The CASE Act is imperfect, but it addresses a genuine enforcement gap for independent copyright holders. Whether through this bill or another, some form of accessible small claims copyright enforcement is overdue.