With the CASE Act, Congress can directly help the middle class

If the backbone of the American economy is the entrepreneur, then surely the millions of creative professionals, living in just about every community in the country, must be part of that story. It’s a world I know well. More than half my friends and colleagues are middle-class photographers, designers, graphic artists, filmmakers, writers, composers, and journalists. They produce works comprising a mix of independent projects made available through sale or license, and works-made-for-hire under contract.  But for the past two decades, this class of workers has seen the foundation of their livelihoods eroded by forces beyond their control.  That foundation is copyright. 

When I first began advocating for copyright owners six years ago, many of the independent creators I knew, or came to know, had reluctantly surrendered to the new normal—that chronic infringement of their work was just a cost of doing business (or not doing business) in the digital age.  Most often, these entrepreneurs are concerned with unlicensed, commercial exploitation of their works, unreasonably depriving them of justly-earned revenue.

{mosads}Today, Congress has the opportunity to help this group of professionals recover lost opportunities and lost earnings by passing the CASE Act (H.R. 3945), which will establish a small-claims copyright tribunal at the U.S. Copyright Office. This legislation, developed over more than a decade, not only provides a new, inexpensive, and voluntary alternative to federal court to address many common types of copyright claims, but it may also have a broadly restorative effect on some of the underlying causes of damage to creators’ rights overall.

For the independent creative professional, two major forces collided over the last 20 years to erode the utility of copyright—a culture of infringement on the internet, and the high-cost of enforcement through litigation in federal court.  I have seen multiple examples in which these two factors fuel a vicious cycle that disenfranchises an author from their constitutional right to license or sell the fruits of their labor.

The culture of online infringement has resulted in even some commercial users balking at the notion that they should license creative works used to promote a brand, product or enterprise. Then, because the cost of enforcement through federal litigation is so high, this exploitative behavior is reinforced by the assumption that the copyright owner probably cannot afford to do anything about the infringement. I’ve seen even business users complain about a $20 license fee in context to an infringement that could, if litigated, cost as much as $150,000 in statutory damages.

The provisions in the CASE Act will enable a creator to enforce a small-business scale claim without the cost of an attorney or filing in federal court or even traveling away from home.  In grassroots terms, this is a remedy for the middle-income wedding photographer, who lives in my small town more than 100 miles from the nearest federal courthouse, and whose work may be infringed online by a party located across the country.

Because the CASE Act is designed to provide a path of resolution between relatively small creators and users, it is curious that multi-billion dollar organizations, represented by the Internet Association, are considering opposing this legislation. Presumably, this latent rebuttal can only be explained by the fact that the major online platforms have, for many years, reaped billions of dollars as an alleged byproduct of the culture of infringement. Protecting this unearned revenue by opposing the interests of individuals and small businesses, who have limited resources and political capital, is far too easy for these internet giants.  It’s exactly why Congress must intervene.

Perhaps the major internet platforms are wary of this legislation because it may actually help reverse the culture of infringement by incentivizing the users of creative works—especially commercial users—to rediscover a basic respect for the labor of the individuals who produce the works.  Knowing that rights holders are no longer restrained by a high-cost barrier to enforcement, users will be more likely to obtain licenses; and consequently, the CASE Act might also restore faith among creators themselves in the purpose of their copyrights.

Fundamentally, copyright is a meritocratic concept—one founded on the assumption that creative expression produced by a plurality of citizens can be both culturally and commercially valuable to society. And although this remains true in theory, the practical reality of enforcement in such an infringement-rich market supports the counter-narrative that copyright only serves large, corporate rights holders. The CASE Act is long-overdue legislation that can help restore balance to the intent of copyright by empowering individual, creative professionals with an affordable and flexible alternative to enforce their rights and protect their interests.

David Newhoff is a writer, communications consultant, copyright advocate, and a creator member of the Copyright Alliance.