Category Archives: News

Authors Alliance to Take Part in NEH-Funded Institute on Building Legal Literacies in Text Data Mining

Posted August 14, 2019

Authors Alliance congratulates the UC Berkeley Libraries on obtaining a grant from the National Endowment for the Humanities (NEH) to fund “Building Legal Literacies in Text Data Mining,” an institute to teach humanities researchers, librarians, and research staff how to confidently navigate the major legal issues that arise in text data mining research. 

Green and black National Endowment for the Humanities logo

As the UC Berkeley noted in its grant announcement, “Potential legal hurdles do not just deter text data mining research; they also bias it toward particular topics and sources of data. In response to confusion over copyright, website terms of use, and other perceived legal roadblocks, some digital humanities researchers have gravitated to low-friction research questions and texts to avoid decision-making about rights-protected data.”

Thanks to the NEH’s $165,000 grant, Rachael Samberg of UC Berkeley Library’s Office of Scholarly Communication Services will be leading a national team from more than a dozen institutions and organizations to help humanities researchers and staff navigate complex legal questions in cutting-edge digital research.

The institute will be held in summer 2020 at the UC Berkeley and training materials will subsequently be published in an openly-available online book for researchers and librarians around the globe. Authors Alliance Executive Director Brianna Schofield will take part in the institute in her capacity as a copyright expert. We look forward to joining this outstanding group of scholars, librarians, and legal experts to inform discussion and best practices for the benefit of authors in the digital humanities.

Authors Alliance will provide an update in October when the call for participants is issued (participants will receive stipends to support their attendance).

Announcing the Authors Alliance Partner Program (A2P2)!

Posted August 7, 2019

We are thrilled to announce the pilot launch of the Authors Alliance Partner Program (A2P2), a new subscription option for organizations.

By joining A2P2, organizations can leverage our expertise in copyright, open access, publication contracts, and getting rights back in order to expand the capacity of library and scholarly communications professionals to serve faculty, researchers, and students. Together, we can help authors manage rights throughout their careers and improve the availability and discoverability of knowledge and culture.

Why join A2P2?

  • Save time and enhance your capacity to provide up-to-date, reliable, and consistent rights management education to authors with our teaching and learning resources.
    • “Workshops in a box” that contain everything you need to prepare for and deliver workshops on topics that help authors manage rights throughout their publishing lifecycle, from negotiating for author-friendly terms in a publication contract to getting rights back.
    • Webinars and other professional development resources to support your training activities.
    • A curated collection of third-party materials that form a one-stop shop for trusted training and curricular resources.
  • Stay informed with our quarterly newsletter and periodic issue briefs that help you navigate developments in the rapidly changing publishing landscape.
  • Help steer our resource and policy agenda through priority member channels that offer you the opportunity to weigh in on our advocacy to advance sound copyright policies and provide input that will guide the development of our author-facing resources.
  • Support the community of authors and institutions working together to expand access to knowledge and culture for the public good.

A2P2 subscriber benefits will be developed and rolled out during a pilot phase, which launches this week and runs through July 2020. A limited number of discounted A2P2 pilot subscriptions are available. To learn more about being a part of the group that will shape our services during the 2019-2020 academic year, contact us at info@authorsalliance.org.


We are grateful to Arcadia—a charitable fund of Lisbet Rausing and Peter Baldwin—for a grant to support this initiative.

New Accessibility Resource: The Law and Accessible Texts: Reconciling Civil Rights and Copyrights

Posted July 30, 2019
black and white photo of a person's finger reading Braille
photo by Eddau | CC0

The Association of Research Libraries (ARL) and the University of Virginia Library recently released The Law and Accessible Texts: Reconciling Civil Rights and Copyrights, a white paper by Brandon Butler of the University of Virginia and Prue Adler and Krista Cox of ARL. The paper provides an overview of relevant caselaw, policy, and best practices.

As the Introduction states, “[t]he report begins with a brief description of the current state of civil rights laws favoring accessibility, including trends in enforcement in recent years. Section II provides an account of why and how copyright concerns have served as stumbling blocks for disability service offices (DSOs). Section III walks through each step in a remediation workflow and provides some key legal ramifications for how that step may proceed. Section IV explores more deeply the key provisions in copyright law favoring the creation and sharing of accessible texts; this section will be of most interest to university counsel’s offices and other legal experts. Finally, Section V surveys some legal and policy considerations beyond copyright and civil rights that may be worth bearing in mind as institutions design their collaborations in areas where law gives them flexibility.”


Authors Alliance’s recent coverage of accessibility issues includes a collection of resources and background about the Marrakesh Treaty. For a deeper dive into the topic of accessibility, see also our previous resource roundup, released in the fall of 2018 in connection with our report on Authorship and Accessibility in the Digital Age.

My Publisher Agreed to Revert Rights: Now What?

Posted July 23, 2019
Photo by Javier Allegue Barros on Unsplash

Since we first published our guide to Understanding Rights Reversion in 2015, our rights reversion resources page has been a one-stop shop for authors seeking the information they need to get back the rights in their works.

Rights Reversion CoverFor those who are new to the concept of rights reversion, the guide is a good place to start. It explains what rights reversion is, how it benefits authors and readers, and how to go about reverting rights. For authors who already know that they wish to pursue reversion, the resource page features guidance and letter templates that authors can refer to when contacting their publishers to request a reversion of rights. The resource page also highlights the success stories of authors who have regained their rights in order to release their works under open licenses, make their works available as low-cost e-books, repackage a book series, or even place their works with a new publisher.

Over the years, our members have reached out to ask for more information about what happens at the point when a publisher agrees to revert rights. In this post, we’ll cover:

  • Getting the files and permission you need;
  • Understanding and tracking ongoing obligations related to your work;
  • Purchasing your publisher’s inventory of your work; and
  • Updating the Copyright Office’s records with new ownership information.

Getting the Files and Permission You Need

When reverting rights, it is helpful to ask your publisher for both the physical materials and any the intellectual property rights you may need for future printings. In fact, some publishers are required by the terms of the publishing contract to provide authors with these items. The items that you may need include not only the digital design files and rights for the text you created, but also the files for art and other materials created by third parties, as well as the permission to use these items if permission is required.

For example, authors who want to reuse the same cover art when they make their reverted books newly available may need to acquire both the source files and a copyright license to reuse cover art that was created or commissioned by their publisher. (Of course, when it applies, authors may also rely on fair use to incorporate third-party works in their works.)

Understanding and Tracking any Ongoing Obligations

Your publisher may have other obligations to fulfill after the reversion. It may, for instance, still need to make royalty payments for sales accrued before the reversion or from other sales or licenses that are still ongoing. As you finalize your reversion, it is important to understand your publisher’s accounting cycle and ask for clarification if you are unsure how and when your publisher plans to account for past or ongoing sales.

Importantly, authors who regain rights need to understand whether any outstanding licenses to their works are still in place and how these licenses will be treated. For example, if an author’s publisher has licensed the French translation rights to her book to another publisher, she will want to know whether the license is exclusive or nonexclusive, whether the license survives the reversion, and whether she can expect any ongoing royalties or other payments for the license. If the license is exclusive and survives the reversion, the author’s reversion is subject to that license. This means that she cannot make and sell French translations of her book without violating the other publisher’s exclusive rights. But she may have ongoing royalties for the sales of the French translation, which she should be sure to track.

Purchasing Your Publisher’s Inventory

If your publisher has any remaining copies of your book in stock, you may consider offering to purchase the remaining inventory. In fact, some contracts give authors the right to purchase stock at the time of reversion at cost. This gives authors the opportunity to purchase these copies at a discounted price in order to sell or otherwise share these copies.

If you are not interested in purchasing copies, or your publisher does not want to sell them to you, it is still a good idea to find out how many copies the publisher has left in its inventory. Often, publishers explicitly retain the right to sell their existing inventory in reversion agreements, subject to continued royalty payments to the author. If you know how many copies the publisher has in stock, you can better understand and track any royalties due from these sales.

Updating the Copyright Office Records with New Ownership Information

Last but not least, after reversion, authors should consider updating the U.S. Copyright Office’s records with their works’ new ownership information. The records held by the U.S. Copyright Office will likely list your publisher as the copyright owner (“claimant”) and/or the point of contact for permission to use the work. After reversion, it is up to you (as the new owner of the copyright) to update this information.

Fortunately, new copyright owners can record a transfer of copyright with the Copyright Office to update these records. Updating the Copyright Office’s records after you revert rights establishes a public record of your new ownership rights. This will make it easier for future users to find accurate information about the current ownership status of your work. When people know whom to contact for permission, it can help increase the dissemination of your work, and potentially your compensation if you license paid uses.

A transfer of copyright can be recorded by submitting a signed or certified, complete, and legible copy of the document being recorded (such as a rights reversion letter from your publisher) to the Copyright Office, together with the required fee (currently $105 for a single title) and Form DCS cover sheet. If accepted, the Register of Copyright will record the document and issue a certificate of recordation. As of July 2019, the processing time for recording transfers or other documents related to copyright is 9 months. For more information on recording transfers of copyright ownership, see Copyright Office Circular 12: Recordation of Transfers and Other Documents.

If you want to know more about how to get your rights back, check out the digital or print version of our guide to Understanding Rights Reversion. For guidance on self-publishing following a reversion of rights, see How Traditionally Published Authors Can Repackage and Self-Publish Their Backlist by author Jess Lourey.

If you have questions about rights reversion you’d like to see Authors Alliance address, send a message to reversions@authorsalliance.org.

Why Get the Rights Back to Your Work?

Posted July 16, 2019

Readers familiar with Authors Alliance’s work will know that we’ve created a suite of resources to help authors get the rights back to their works, including a guide to Understanding Rights Reversion, templates and guidance on how to craft a persuasive rights reversion letter, and information on termination of transfer under U.S. law.

One question we’re often asked is “Why would I want to get my rights back?” The most general answer to this question is “To increase your work’s availability and reach more readers.” Within the context of this broad goal, there are as many specific motivations to revert rights as there are authors. We’ve collected some of these motivations (and outcomes) here to inspire authors to consider whether their books’ availability might benefit from reversion.

Making an Out-of-Print Book More Widely Available to Readers
After James O’Donnell’s book, Augustine: Confessions, fell out of print, its use was largely limited to library copies, which were often non-circulating. By reverting rights, James was able make his book openly available online where it maintained a vibrant readership. In fact, James feels that the continued availability of his book online created the market for a print version, and he subsequently negotiated two new agreements to reprint the work.

Repackaging Earlier Books with a New Book to Complete a Trilogy
Tracee Garner had written two novels in a planned trilogy, but never finished the series. After fans requested that she finish the series, Tracee reverted rights to the first two books so that she can edit and repackage them with a new book to complete and self-publish the trilogy.

Increasing Opportunities for a Book to be Used in the Classroom
Dale Cannon’s religious studies textbook, Six Ways of Being Religious, wasn’t selling very well and he wanted the book to become better known and more widely used in university classrooms. Dale reverted rights to his book and made it available in his university’s online repository under a Creative Commons license where it has been downloaded more than 2,500 times in two years. Dale is currently exploring offering a low-cost, print-on-demand version.

Reducing Costs for Learners
David Ullman was motivated to revert rights to his textbook, The Mechanical Design Process, after his publisher had steeply increased the price of his book over his protests. David felt that the price was harming sales of the book, so he reverted rights. With his rights back in hand, David self-published a new edition of the book at a price point that is more affordable to practitioners and students. Even though he drastically cut the list price, David now makes more per book than when the book was sold through his former publisher.

Making a Book Available in a Format Requested by Readers
Katie Hafner’s publisher had stopped printing her book, A Romance on Three Legs, instead making it available only as an e-book. Her readers were constantly reaching out to her, requesting information on where they might purchase a physical copy of her book. Katie felt strongly that, in order to reach her target audience, her book had to be available for purchase in print. By explaining to her publisher that her audience was more likely to purchase a traditional print copy than an e-book, Katie successfully persuaded her publisher to make her book available for purchase in print again.

There is no “one-size-fits-all” motivation for seeking a rights reversion. We encourage authors to position themselves for success after obtaining a reversion of rights by considering their motivations for reversion and developing a plan for increasing their book’s availability before they initiate a reversion request. For more inspiration from a range of authors, browse our reversion success stories.

Summer Reading List: New Books on Intellectual Property and Copyright

Posted July 9, 2019

Summer is here—a great time to kick back with a good book. There are all kinds of reading lists out there, from fun reads for the beach to prize-winning books you might have missed, to books on a favorite hobby or a faraway destination. At Authors Alliance, we enjoy keeping up with all the latest news in copyright and IP, and we know that our members do, too. In fact, many of the authors and contributors featured below are Authors Alliance members, so we’re especially pleased to highlight their work here.

We hope you enjoy these suggestions for new books that will inform and enlighten you about the latest in copyright, cultural studies, the public domain, and more!

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Our list begins with the brand new collection A History of Intellectual Property in 50 Objects, edited by Claudy Op den Kamp and Dan Hunter. This engaging book of essays by leading IP scholars shows how seemingly ordinary things, from sewing machines to champagne to Post-It Notes, have fascinating stories to tell.

Cover of the History of IP in 50 Objects

“What do the Mona Lisa, the light bulb, and a Lego brick have in common? The answer—intellectual property (IP)—may be surprising, because IP laws are all about us, but go mostly unrecognized. . . . In this lustrous collection, Claudy Op den Kamp and Dan Hunter have brought together a group of contributors—drawn from around the globe in fields including law, history, sociology, science and technology, media, and even horticulture—to tell a history of IP in 50 objects. . . . Each object is at the core of a story that will be appreciated by anyone interested in how great innovations offer a unique window into our past, present, and future.”

Cambridge University Press

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Next up is a helpful new book for those seeking a broad overview of key issues in IP. Aram Sinnreich’s Essential Guide to Intellectual Property provides an engaging analysis of the role of copyright, patents, and trademarks in shaping and regulating industry, politics, and cultural expression. The book contains a wealth of illustrations and examples and is accessible to non-specialists, but, as Sinnreich writes in the Introduction, “If you are a scholar seeking a deeper, more critical understanding of copyright and IP but wish to avoid the partisanship of advocacy books and the clinical aridity of legal textbooks, this may be the book for you.”

Cover of The Essential Guide to IP

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Another excellent resource for legal education is Copyright Law: Cases and Materials, a brand-new casebook co-authored by Jeanne C. Fromer and Christopher Jon Sprigman of the NYU School of Law. In a win for scholars and researchers, the book is available as a free download under a Creative Commons license, and may also be purchased as a print-on-demand book for under $15—an accessible alternative to the traditionally-published casebook, which can cost students hundreds of dollars per copy.

Cover of Fromer and Sprigman's copyright casebook

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Speaking of works that are freely available to the public: The re-opening of the public domain this past January revived questions about overly long copyright terms and why it took nearly a century for these works to (finally!) be free and accessible to all. (Our blog series “Celebrating the Public Domain” highlighted a few of these notable works, chosen by guest authors.)

Cover of Public Rights

Public Rights: Copyright’s Public Domains by Graham Greenleaf and David Lindsay, out in paperback next month, “re-defines the copyright public domain, and identifies fifteen categories of public rights that constitute public rights and how their implementation differs between jurisdictions. Through this analysis, and by explaining how the public domain is an important source of human creativity and autonomy, the authors aim to restore balance to copyright policy debates, and to contribute to such debates by making practical law reform proposals.” An online supplement to the book with additional material (including the abstract quoted above) is available on SSRN, as is the authors’ overview of the book.

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Meanwhile, Jennifer E. Rothman’s latest book examines a different type of legal right: The Right of Publicity: Privacy Reimagined for a Public World analyzes the legal issues surrounding identity and publicity at a time when privacy is becoming more and more elusive.

Cover of The Right of Publicity

“Who controls how one’s identity is used by others? This legal question, centuries old, demands greater scrutiny in the Internet age. Jennifer Rothman uses the right of publicity—a little-known law, often wielded by celebrities—to answer that question, not just for the famous but for everyone. In challenging the conventional story of the right of publicity’s emergence, development, and justifications, Rothman shows how it transformed people into intellectual property, leading to a bizarre world in which you can lose ownership of your own identity.”
— Harvard University Press

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Cover of Who Owns the News

Last but not least, Will Slauter considers another timely topic in his new book, Who Owns the News? A History of Copyright. Through the lens of journalism, Slauter, an Associate Professor at Université Paris Diderot, examines how attempts to copyright news and control access to content run counter to the public benefit of a free press. From the emergence of the first newspapers to today’s landscape of “alternative facts” and fake news, Slauter “explores the intertwined histories of journalism and copyright law in the United States and Great Britain, revealing how shifts in technology, government policy, and publishing strategy have shaped the media landscape.”

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We hope you’ve enjoyed this list of hand-picked reads. If you’d like to stay up to date on the latest news from Authors Alliance, become a member today. It’s free to join (though donations in any amount are always appreciated and go directly to support our mission of educating and empowering authors). Our members are the first to hear of our new educational resources and policy work!

Ruth Okediji on the Limits of International Copyright Exceptions for Developing Countries

Posted June 25, 2019
bridge with flags in Geneva
photo by hpgruesen on Pixabay

In a recent article in the Vanderbilt Journal of Entertainment & Technology Law (available on SSRN), Ruth Okediji of Harvard Law School offers a critical analysis of the design of the international copyright system as it relates to economic development in the Global South. In the article, Okediji proposes changes to the international copyright limitations and exceptions (“L&Es”) system based on those insights.

Okediji argues that while liberty-enhancing L&Es (such as those that facilitate civic and social engagement, or ensure freedom of expression) have enjoyed considerable acceptance in the international copyright system, new international L&Es are needed that strengthen the capacity of developing and least-developed countries to absorb and utilize knowledge inputs (what Okediji refers to as “development-inducing L&Es”). In particular, Okediji argues that efforts to formulate a coherent L&E standard for education, particularly for online educational activities, could be an important step in providing the legal framework necessary to facilitate access to knowledge. She also argues that mandatory L&Es for libraries, archives, and other educational and cultural institutions are essential to facilitate both liberty-enhancing and development-inducing goals.

As Okediji writes:

“The prospects for developing and least-developed countries to benefit from global research and development (R&D) spillovers, to participate in international scientific collaborations, and to reduce the innovation divide are brighter than at any other time in history. Turning these prospects into realizable gains, in part, requires addressing barriers to knowledge acquisition and facilitating the diffusion of knowledge across borders. International copyright law is not the only hurdle to these goals, but it is an important one. Efforts by various stakeholders to address the global knowledge and innovation gap would benefit from renewed attention to the international copyright framework and, especially, a redesign of international copyright L&Es.”

While Okediji considers the L&Es agenda at WIPO to be a crucial part of the longstanding attempts to align copyright law with broader welfare concerns, she emphasizes that the reform that is necessary for copyright to accomplish the encouragement of learning and development in developing countries must be also advanced at national and regional levels.

The full text of Professor Okediji’s article can be viewed and downloaded here.

Authors Alliance has recently participated in conversations about international limitations and exceptions to copyright. Last November, Authors Alliance presented a statement to the World Intellectual Property (WIPO) Standing Committee on Copyright and Related Rights explaining how limitations and exceptions for education can benefit authors, without undermining fundamental purposes of copyright policy, and can encourage the diffusion of knowledge.

New Resource: Journal Licensing Negotiation Toolkit From the University of California

Posted June 18, 2019

Earlier this year, the University of California (UC) made headlines when it chose to end its journal licensing deal with publishing giant Elsevier. The UC negotiation team recently released a toolkit for other institutions wishing to make changes to their own publishing agreements. The following announcement of the toolkit is excerpted from a post on the University of California (UC) Office of Scholarly Communication website, which originally appeared in May 2019 under a CC-BY license.


The University of California’s (UC) 2018-19 journal contract negotiation with Elsevier has been widely followed. In response to ongoing demand for information, this negotiation toolkit was created to provide support and insight for institutions, particularly university librarians/directors and faculty in North America, interested in restructuring their publisher contracts for journal content.

[The toolkit provides] a North American framework for creating transformative change in the scholarly publishing industry based on initial insights from the University of California’s 2018-2019 negotiations with Elsevier.

A printer-friendly version of this toolkit is available as a PDF.


Authors Alliance is committed to updating our readers on new developments in open access and scholarly publishing policies. Our OA resource page features information and tools about OA publishing, including our Guide to Understanding Open Access. Earlier this spring, we featured an interview with Jeffrey MacKie-Mason, an Authors Alliance board member and one of the lead negotiators in the effort to restructure UC’s contracts with Elsevier.

“A More Balanced Approach to Copyright Reform”: Michael Geist On the Statutory Review of the Canadian Copyright Act

Posted June 12, 2019
photo by 1966666 on Pixabay

In December 2018, Authors Alliance submitted a brief to the Canadian Committee on Industry, Science and Technology in response to a request for public comment. The committee was tasked by Parliament with reviewing Canada’s copyright statutes and issuing a report with recommendations for action and further consideration. Our brief urged the retention of reversionary rights in Canada’s Copyright Act and recommended amendments to the provision to enhance the utility of reversionary rights.

Earlier this month, the Committee on Industry, Science and Technology released its Statutory Review of the Copyright Act. Our brief was cited in the report, and we were pleased to see that the report includes recommendations to expand fair dealing and reversionary rights, which benefit creators who wish to make fair use or to regain rights to their previously published works.

Professor Michael Geist of the University of Ottawa prepared an analysis of the report’s recommendation on fair dealing in a post on his blog (made available under a Creative Commons license), which we have re-posted below. For a deeper dive into the future of the Canadian Copyright Act, we recommend Geist’s summary of the full report.


Fixing Fair Dealing for the Digital Age: What Lies Behind the Copyright Review’s Most Important Recommendation

The long-awaited Canadian copyright review report features numerous good recommendations, many of which were rejections of industry lobbying: a rejection of new restrictions on fair dealing for education, rejection of Bell’s FairPlay site blocking initiative, and rejection of limits on safe harbours in response to the so-called “value gap.” Yet the most notable recommendation is the committee’s support for fair dealing for the digital age by expanding its scope and ensuring that it applies equally in the analog and digital worlds.

I wrote about the need to fix fair dealing for the digital age in May 2018:

there is a need to fix fair dealing by ensuring that it is not hamstrung in the digital environment. The Canadian test for fairness is consistent with those found in other countries, but there are barriers that exist for fair dealing in the digital world that are not found in the analog one. The most obvious example are Canada’s digital lock rules, which exceed the requirements at international law in the WIPO Internet treaties. As many warned five years ago, Canada has created a system that allows for unnecessarily restrictive limits on digital fair dealing. There is a need to fix this problem by establishing an exception within the anti-circumvention rules to allow for circumvention for any lawful purpose.Moreover, the fair dealing purposes should be expanded, ideally by adopting a “such as” approach to its list of enumerated purposes that would ensure the law remains relevant in the face of new innovation. Alternatively, given Canada’s prioritization of artificial intelligence, there is a need for a fair dealing exception for text and data mining similar to that found in many other countries.

The copyright review addresses all three issues. First, the committee recommended adding much needed flexibility by allowing circumvention for purposes otherwise permitted under the Copyright Act:

However, it agrees that the circumvention of TPMs should be allowed for non-infringing purposes, especially given the fact that the Nintendo case provided such a broad interpretation of TPMs. In other words, while anti-circumvention rules should support the use of TPMs to enable the remuneration of rights-holders and prevent copyright infringement, they should generally not prevent someone from committing an act otherwise authorized under the Act.

This change will help ensure that fair dealing rights are treated in an equivalent manner in both the analog and digital worlds.

Continue reading

Copyright Law Has a Small Claims Problem. The CASE Act Won’t Solve It

Posted June 4, 2019
Photo of Kerry Maeve Sheehan
Kerry Maeve Sheehan

We are grateful to Authors Alliance’s Copyright Research Assistant Kerry Maeve Sheehan for this analysis of the 2019 CASE Act.

The Copyright Alternative in Small Claims Enforcement Act (CASE Act) is back in Congress, and it still has serious problems.

On May 1st, Rep. Doug Collins (R-GA) and Rep. Hakeem Jeffries (D-NY) introduced the latest version of the Copyright Alternative in Small Claims Enforcement Act (CASE Act). Like its predecessor bills in 2016 and 2017, the 2019 CASE Act would establish a copyright small claims tribunal within the United States Copyright Office with the authority to hear and decide some copyright infringement claims.

The bill has a laudable goal: reducing barriers to copyright enforcement for those with limited financial resources by providing a faster and cheaper avenue to remedies. For many independent authors, creators, and users of copyrighted content, copyright litigation in federal court is not worth the candle; the high cost of litigation keeps many independent authors and creators from enforcing their copyrights. A well-designed copyright small claims process could fix this but, unfortunately, the deeply flawed CASE Act isn’t that. While failing to limit the tribunal’s scope to the types of claims and claimants that it’s best suited to and allowing recovery of excessive damages, the small claims process as set out in the CASE Act would also cause harm to many legitimate users of copyrighted works, including authors, educators, and other creators.

The CASE Act’s small claims process isn’t limited to the problems a small claims court is well-positioned to address.

The CASE Act’s small claims tribunal isn’t limited to those independent authors and creators who need it most.

The copyright holders who most need, and would most benefit, from a small claims process are those independent authors and creators who can’t afford to press their claims in federal court. Unfortunately, instead of limiting the small claims process to those independent copyright holders that really need access to this kind of forum to enforce their copyrights, the CASE Act opens the door widely, welcoming in large corporations, corporate assignees, and entities that buy up others’ copyright claims and profit from litigation.

We’ve already seen how copyright trolls and big content companies have sometimes abused the federal court system to raise questionable infringement accusations and threaten those accused with high statutory damages. By not limiting enforcement through the small claims process to individual creators, the CASE Act makes it even easier for these entities to get quick default judgments and disproportionately high damages awards. Absent enough protections for accused infringers and reasonable limits on damages, the CASE Act would invite more abusive litigation tactics by copyright trolls and opportunistic claimants while cluttering up the docket with cases that should be resolved elsewhere.

The CASE Act’s small claims tribunal’s jurisdiction is far too broad.

Some areas of copyright law are just too complicated, fact specific, and unsettled to be decided by a small claims process. The CASE Act tribunal’s accelerated process and limited discovery mean that it’s really only equipped to handle simple, straightforward infringement claims in settled areas of law. But the CASE Act doesn’t draw the line there. Instead, the tribunal has expansive authority to hear all types of copyright infringement claims including those that involve highly complex issues and uncertain areas of law. These complicated cases belong in a federal court with the expertise and resources to more competently address all the factual and legal issues involved. Leaving these cases with the small claims tribunal hurts both those authors trying to enforce their copyrights and those trying to defend their rights to use copyrighted works, as the tribunal won’t be able to adequately resolve the issues involved.

While the CASE Act does include a provision allowing the tribunal to dismiss a claim or defense if the tribunal decides it’s not suitable, without a clear limitation on the tribunal’s jurisdiction, it’s hard to see how it would make consistent decisions to do so.

The CASE Act would create new opportunities for abusive litigation tactics.

The CASE Act’s “default judgment mill” favors sophisticated actors over independent authors and creators.

The CASE Act’s opt-out provision doesn’t provide independent authors (whether claimants or defendants) enough protection. Under the CASE Act, if someone accused of infringement fails to opt-out of the small claims process within 60 days of receiving notice of the claim, the small claims tribunal can enter a default judgment in favor of the claimant and award her damages. This judgment can then be enforced by the claimant in federal court. While this opt-out procedure is supposed to provide some protection for the accused, there’s a strong likelihood that authors, educators, and small creators without sophisticated legal knowledge or representation may not fully understand the implications and may ignore the notice – ending up on the hook for substantial damages awards without a meaningful opportunity to appeal. This quick and easy way to obtain default judgments is likely to create a “default judgment mill,” where big content companies and copyright trolls can churn out a mass of default judgments and high damages awards against unsophisticated individuals.

The CASE Act’s statutory damages framework invites abuse.

There may be a role for a reasonably statutory small framework in a small claims tribunal when damages from infringement are difficult or impossible to prove. However, while substantially lower than the statutory damages available in federal court, the CASE Act’s statutory damages are still excessively high and are available in all cases. Under the CASE Act, claimants who timely registered their works can request up to $15,000 per work infringed, with a total limit of $30,000 per proceeding. Those who failed to timely register their works can request up to $7,500 per work infringed, with a limit of $15,000 per proceeding. As copyright law experts have pointed out, in federal court, the availability of excessive statutory damages has made it easy for unscrupulous plaintiffs to intimidate and extract settlements from individuals accused of infringement. Faced with the risk of a high statutory award, many defendants opt to settle, even when they have a valid defense. And without standards to guide those awards, copyright litigation is an unpredictable venture. With lower barriers for plaintiffs and a disproportionate statutory damages framework, the CASE Act could make these problems even worse.

As concerned scholars have noted, The CASE Act’s statutory damages framework won’t just harm defendants, though. It will also create an incentive for sophisticated or well-resourced defendants to strategically opt out of the small claims process when they think the claimant won’t be able to pursue her claim in federal court. This would undermine the CASE Act’s core objective, returning independent authors and creators to today’s unsatisfactory status quo.

Would the CASE Act tribunal be a fair one?

The CASE Act’s limitations on appeal make it unduly difficult for parties to get meaningful independent review of tribunal decisions.

Independent judicial review is essential to ensuring that any tribunal operates fairly and arrives at the correct result. The CASE Act, however, narrowly restricts the ability of either party to seek review of the tribunal’s decisions in federal court. Under the CASE Act, parties can ask the tribunal to reconsider a determination, and, with an additional fee, parties can ask the Register to review the tribunal’s refusal to reconsider on abuse of discretion grounds. Independent review by a court is only available in on the grounds of “fraud, corruption, misrepresentation, or other misconduct,” or if the tribunal exceeded its authority or failed to render a final decision. Default judgments are only reviewable on grounds of excusable neglect. By restricting the grounds for appeal, the CASE Act would leave erroneous tribunal decisions essentially unreviewable and unjustly wronged parties with no where to turn for relief.

The Copyright Office probably isn’t the right place for a copyright small claims court.

A tribunal within the copyright office, designed to serve copyright claimants, and with officers selected and recommended by the Register of Copyrights may end up friendlier towards copyright claimants, and less receptive to arguments that a contested use is legitimate or qualifies as fair use. In concert with the limitations on appeal of tribunal decisions, this could create a forum inclined to issue more favorable judgments for big content companies and other copyright claimants, and in the process, harm those authors, educators, and creators defending their right to use copyrighted works.

Authors Alliance founder and law professor Pamela Samuelson points out that placing the tribunal within the Copyright Office could also run afoul of the United States Constitution. The United States Supreme Court has repeatedly stated that infringement claims belong in the federal courts. Placing some copyright infringement claims in an administrative forum may be unconstitutional under Supreme Court precedent.      

Authors Deserve Better Than the CASE Act.

Independent authors and creators should have access to a low cost way to enforce their copyrights and vindicate their right to use others’ copyrighted works. We support a fair, unbiased small claims process that doesn’t invite abuse and wreak havoc on copyright law. If Congress is serious about fixing Copyright’s small claims problem, it needs to do better than the CASE Act. It can start by listening to the numerous educators, scholars, librarians, technologists, lawyers, and public interest policy experts who’ve all pointed out the Act’s problems. If you want to learn more about the CASE Act, check out this paper by Authors Alliance founder Pamela Samuelson and Kathy Hashimoto, and this one by law professor Ben Depoorter.