This Form Can Protect Libraries and Library Employees from Copyright Claims

The CASE Act created a new copyright small claims court to make it easier and less expensive to file copyright infringement claims. To protect libraries and archives, the Copyright office created a form for them to opt out of cases brought before the Copyright Claims Board. This form will protect not only libraries and archives, but also their employees acting in the course and scope of their employment. With so many libraries and archives potentially being subject to claims, the decision to opt out will be easy for most entities.

 What Libraries and Archives Can Opt Out?

The Copyright Act provides special protection to libraries and archives under two circumstances:

• • When the collections are open to the public
  • When the collections are available not only to researchers affiliated with the library, archive, or the institution of which it is a part, but also to other persons doing research in a specialized field

To opt out of the Copyright Claims Board, a library or archive has to certify that it falls in one of these two categories.

Why Opt Out?

• • Easy and Cheap to File Claims

The Copyright Claims Board is set up to make it easy to file claims without the need for a lawyer. These claims can be filed for as little as $40. The board is new, but this may lead to a lot of claims that would not be filed in federal district courts.

• • Small Claims Can Still Mean Big Liabilities

The Copyright Claims Board can award damages of up to $30,000.

• • The Copyright Claims Board Offers Less Protection for Defendants than Federal Trial Courts

The Copyright Claims Board offers limited discovery, limited rights to call expert witnesses, and limited appellate review. This may generally make it harder to raise defenses. That might be even more true for libraries and archives because the Copyright Act gives special technical protections for those entities.

Are There Any Advantages to Not Opting Out?

There are two possible advantages to not opting out of the Copyright Claims Board process:

1. 1. The streamlined nature of the process will likely make defending claims less expensive
   2. For infringers, the $30,000 cap on damages limits liability

For most libraries and archives, the benefits of the Copyright Claims Board will not outweigh its risks. Opting out will help avoid many potential small copyright claims by making rights holders file a federal lawsuit to assert their claims. Even where those rights holders have successful claims, the damages at stake will be less than $30,000, limiting the advantage that the board’s damages cap offers.

Our Intellectual Property Practice Group will continue to monitor the implementation of the CASE Act. Please contact Mary Ellen Roy, Andrew Coffman or any member of Phelps’ Intellectual Property team if you have questions or want advice and guidance.