CASE Act of 2019

II Calendar No. 206 116TH CONGRESS 1ST SESSION S. 1273 [Report No. 116–105] To amend title 17, United States Code, to establish an alternative dispute resolution program for copyright small claims, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 1, 2019 Mr. KENNEDY (for himself, Mr. DURBIN, Mr. TILLIS, Ms. HIRONO, Mrs. BLACKBURN, Mrs. SHAHEEN, Mr. UDALL, Mr. CRAMER, Mr. COONS, Mr. LEAHY, Mrs. FEINSTEIN, Mr. CORNYN, Mr. CRUZ, Mr. BLUMENTHAL, and Mr. HEINRICH) introduced the following bill; which was read twice and referred to the Committee on the Judiciary SEPTEMBER 12, 2019 Reported by Mr. GRAHAM, without amendment A BILL To amend title 17, United States Code, to establish an alternative dispute resolution program for copyright small claims, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 21:35 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1273.RS S1273 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 1273 RS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Copyright Alternative 2 in Small-Claims Enforcement Act of 2019’’ or the ‘‘CASE 3 Act of 2019’’. 4 SEC. 2. COPYRIGHT SMALL CLAIMS. 5 (a) IN GENERAL.—Title 17, United States Code, is 6 amended by adding at the end the following: 7 ‘‘CHAPTER 15—COPYRIGHT SMALL 8 CLAIMS 9 ‘‘1501. Definitions. ‘‘1502. Copyright Claims Board. ‘‘1503. Authority and duties of the Copyright Claims Board. ‘‘1504. Nature of proceedings. ‘‘1505. Registration requirement. ‘‘1506. Conduct of proceedings. ‘‘1507. Effect of proceeding. ‘‘1508. Review and confirmation by district court. ‘‘1509. Relationship to other district court actions. ‘‘1510. Implementation by Copyright Office. ‘‘1511. Funding. ‘‘§ 1501. Definitions 10 ‘‘In this chapter— 11 ‘‘(1) the term ‘party’— 12 ‘‘(A) means a party; and 13 ‘‘(B) includes the attorney of a party, as 14 applicable; 15 ‘‘(2) the term ‘claimant’ means the real party 16 in interest that commences a proceeding before the 17 Copyright Claims Board under section 1506(e), pur- 18 suant to a permissible claim of infringement brought 19 under section 1504(c)(1), noninfringement brought 20 VerDate Sep 11 2014 21:35 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1273.RS S1273 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 1273 RS under section 1504(c)(2), or misrepresentation 1 brought under section 1504(c)(3); 2 ‘‘(3) the term ‘counterclaimant’ means a re- 3 spondent in a proceeding before the Copyright 4 Claims Board that— 5 ‘‘(A) asserts a permissible counterclaim 6 under section 1504(c)(4) against the claimant 7 in the proceeding; and 8 ‘‘(B) is the real party in interest with re- 9 spect to the counterclaim described in subpara- 10 graph (A); and 11 ‘‘(4) the term ‘respondent’ means any person 12 against whom a proceeding is brought before the 13 Copyright Claims Board under section 1506(e), pur- 14 suant to a permissible claim of infringement brought 15 under section 1504(c)(1), noninfringement brought 16 under section 1504(c)(2), or misrepresentation 17 brought under section 1504(c)(3). 18 ‘‘§ 1502. Copyright Claims Board 19 ‘‘(a) IN GENERAL.—There is established in the Copy- 20 right Office the Copyright Claims Board, which shall serve 21 as an alternative forum in which parties may voluntarily 22 seek to resolve certain copyright claims regarding any cat- 23 egory of copyrighted work, as provided in this chapter. 24 ‘‘(b) OFFICERS AND STAFF.— 25 VerDate Sep 11 2014 21:35 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1273.RS S1273 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 1273 RS ‘‘(1) COPYRIGHT CLAIMS OFFICERS.—The Reg- 1 ister of Copyrights shall recommend 3 full-time 2 Copyright Claims Officers to serve on the Copyright 3 Claims Board in accordance with paragraph (3)(A). 4 The Officers shall be appointed by the Librarian of 5 Congress to such positions after consultation with 6 the Register of Copyrights. 7 ‘‘(2) COPYRIGHT CLAIMS ATTORNEYS.—The 8 Register of Copyrights shall hire not fewer than 2 9 full-time Copyright Claims Attorneys to assist in the 10 administration of the Copyright Claims Board. 11 ‘‘(3) QUALIFICATIONS.— 12 ‘‘(A) COPYRIGHT CLAIMS OFFICERS.— 13 ‘‘(i) IN GENERAL.—Each Copyright 14 Claims Officer shall be an attorney who 15 has not fewer than 7 years of legal experi- 16 ence. 17 ‘‘(ii) EXPERIENCE.—Two of the Copy- 18 right Claims Officers shall have— 19 ‘‘(I) substantial experience in the 20 evaluation, litigation, or adjudication 21 of copyright infringement claims; and 22 ‘‘(II) between those 2 Officers, 23 have represented or presided over a 24 diversity of copyright interests, includ- 25 VerDate Sep 11 2014 21:35 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1273.RS S1273 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 1273 RS ing those of both owners and users of 1 copyrighted works. 2 ‘‘(iii) ALTERNATIVE DISPUTE RESOLU- 3 TION.—The Copyright Claims Officer not 4 described in clause (ii) shall have substan- 5 tial familiarity with copyright law and ex- 6 perience in the field of alternative dispute 7 resolution, including the resolution of liti- 8 gation matters through that method of res- 9 olution. 10 ‘‘(B) COPYRIGHT CLAIMS ATTORNEYS.— 11 Each Copyright Claims Attorney shall be an at- 12 torney who has not fewer than 3 years of sub- 13 stantial experience in copyright law. 14 ‘‘(4) COMPENSATION.— 15 ‘‘(A) COPYRIGHT CLAIMS OFFICERS.— 16 ‘‘(i) DEFINITION.—In this subpara- 17 graph, the term ‘senior level employee of 18 the Federal Government’ means an em- 19 ployee, other than an employee in the Sen- 20 ior Executive Service, the position of whom 21 is classified above GS–15 of the General 22 Schedule. 23 ‘‘(ii) PAY RANGE.—Each Copyright 24 Claims Officer shall be compensated at a 25 VerDate Sep 11 2014 21:35 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1273.RS S1273 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 1273 RS rate of pay that is not less than the min- 1 imum, and not more than the maximum, 2 rate of pay payable for senior level employ- 3 ees of the Federal Government, including 4 locality pay, as applicable. 5 ‘‘(B) COPYRIGHT CLAIMS ATTORNEYS.— 6 Each Copyright Claims Attorney shall be com- 7 pensated at a rate of pay that is not more than 8 the maximum rate of pay payable for level 10 9 of GS–15 of the General Schedule, including lo- 10 cality pay, as applicable. 11 ‘‘(5) TERMS.— 12 ‘‘(A) IN GENERAL.—Subject to subpara- 13 graph (B), a Copyright Claims Officer shall 14 serve for a renewable term of 6 years. 15 ‘‘(B) INITIAL TERMS.—The terms for the 16 first Copyright Claims Officers appointed under 17 this chapter shall be as follows: 18 ‘‘(i) The first such Copyright Claims 19 Officer appointed shall be appointed for a 20 term of 4 years. 21 ‘‘(ii) The second Copyright Claims Of- 22 ficer appointed shall be appointed for a 23 term of 5 years. 24 VerDate Sep 11 2014 21:35 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1273.RS S1273 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 1273 RS ‘‘(iii) The third Copyright Claims Of- 1 ficer appointed shall be appointed for a 2 term of 6 years. 3 ‘‘(6) VACANCIES AND INCAPACITY.— 4 ‘‘(A) VACANCY.— 5 ‘‘(i) IN GENERAL.—If a vacancy oc- 6 curs in the position of a Copyright Claims 7 Officer, the Librarian of Congress shall, 8 upon the recommendation of, and in con- 9 sultation with, the Register of Copyrights, 10 act expeditiously to appoint a Copyright 11 Claims Officer for that position. 12 ‘‘(ii) VACANCY BEFORE EXPIRA- 13 TION.—An individual appointed to fill a 14 vacancy occurring before the expiration of 15 the term for which the predecessor of the 16 individual was appointed shall be appointed 17 to serve a 6-year term. 18 ‘‘(B) INCAPACITY.—If a Copyright Claims 19 Officer is temporarily unable to perform the du- 20 ties of the Officer, the Librarian of Congress 21 shall, upon recommendation of, and in consulta- 22 tion with, the Register of Copyrights, act expe- 23 ditiously to appoint an interim Copyright 24 VerDate Sep 11 2014 21:35 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1273.RS S1273 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 1273 RS Claims Officer to perform such duties during 1 the period of such incapacity. 2 ‘‘(7) SANCTION OR REMOVAL.—Subject to sec- 3 tion 1503(b), the Librarian of Congress may sanc- 4 tion or remove a Copyright Claims Officer. 5 ‘‘(8) ADMINISTRATIVE SUPPORT.—The Register 6 of Copyrights shall provide the Copyright Claims Of- 7 ficers and Copyright Claims Attorneys with nec- 8 essary administrative support, including techno- 9 logical facilities, to carry out the duties of the Offi- 10 cers and Attorneys under this chapter. 11 ‘‘(9) LOCATION OF COPYRIGHT CLAIMS 12 BOARD.—The offices and facilities of the Copyright 13 Claims Officers and Copyright Claims Attorneys 14 shall be located at the Copyright Office. 15 ‘‘§ 1503. Authority and duties of the Copyright Claims 16 Board 17 ‘‘(a) FUNCTIONS.— 18 ‘‘(1) COPYRIGHT CLAIMS OFFICERS.—Subject 19 to the provisions of this chapter and applicable regu- 20 lations, the functions of the Copyright Claims Offi- 21 cers shall be as follows: 22 ‘‘(A) To render determinations on the civil 23 copyright claims, counterclaims, and defenses 24 VerDate Sep 11 2014 21:35 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1273.RS S1273 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 1273 RS that may be brought before the Officers under 1 this chapter. 2 ‘‘(B) To ensure that claims, counterclaims, 3 and defenses are properly asserted and other- 4 wise appropriate for resolution by the Copyright 5 Claims Board. 6 ‘‘(C) To manage the proceedings before the 7 Officers and render rulings pertaining to the 8 consideration of claims, counterclaims, and de- 9 fenses, including with respect to scheduling, dis- 10 covery, evidentiary, and other matters. 11 ‘‘(D) To request, from participants and 12 nonparticipants in a proceeding, the production 13 of information and documents relevant to the 14 resolution of a claim, counterclaim, or defense. 15 ‘‘(E) To conduct hearings and conferences. 16 ‘‘(F) To facilitate the settlement by the 17 parties of claims and counterclaims. 18 ‘‘(G)(i) To award monetary relief; and 19 ‘‘(ii) to include in the determinations of 20 the Officers a requirement that certain activi- 21 ties under section 1504(e)(2) cease or be miti- 22 gated, if the party to undertake the applicable 23 measure has so agreed. 24 VerDate Sep 11 2014 21:35 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1273.RS S1273 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 1273 RS ‘‘(H) To provide information to the public 1 concerning the procedures and requirements of 2 the Copyright Claims Board. 3 ‘‘(I) To maintain records of the pro- 4 ceedings before the Officers, certify official 5 records of such proceedings as needed, and, as 6 provided in section 1506(t), make the records 7 in such proceedings available to the public. 8 ‘‘(J) To carry out such other duties as are 9 set forth in this chapter. 10 ‘‘(K) When not engaged in performing the 11 duties of the Officers set forth in this chapter, 12 to perform such other duties as may be as- 13 signed by the Register of Copyrights. 14 ‘‘(2) COPYRIGHT CLAIMS ATTORNEYS.—Subject 15 to the provisions of this chapter and applicable regu- 16 lations, the functions of the Copyright Claims Attor- 17 neys shall be as follows: 18 ‘‘(A) To provide assistance to the Copy- 19 right Claims Officers in the administration of 20 the duties of those Officers under this chapter. 21 ‘‘(B) To provide assistance to members of 22 the public with respect to the procedures and 23 requirements of the Copyright Claims Board. 24 VerDate Sep 11 2014 21:35 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1273.RS S1273 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 1273 RS ‘‘(C) To provide information to potential 1 claimants contemplating bringing a permissible 2 action before the Copyright Claims Board about 3 obtaining a subpoena under section 512(h) for 4 the sole purpose of identifying a potential re- 5 spondent in such an action. 6 ‘‘(D) When not engaged in performing the 7 duties of the Attorneys set forth in this chapter, 8 to perform such other duties as may be as- 9 signed by the Register of Copyrights. 10 ‘‘(b) INDEPENDENCE IN DETERMINATIONS.— 11 ‘‘(1) IN GENERAL.—The Copyright Claims 12 Board shall render the determinations of the Board 13 in individual proceedings independently on the basis 14 of the records in the proceedings before it and in ac- 15 cordance with the provisions of this title, judicial 16 precedent, and applicable regulations of the Register 17 of Copyrights. 18 ‘‘(2) CONSULTATION.—The Copyright Claims 19 Officers and Copyright Claims Attorneys— 20 ‘‘(A) may consult with the Register of 21 Copyrights on general issues of law; and 22 ‘‘(B) subject to section 1506(x), may not 23 consult with the Register of Copyrights with re- 24 spect to— 25 VerDate Sep 11 2014 21:35 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1273.RS S1273 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 1273 RS ‘‘(i) the facts of any particular matter 1 pending before the Officers and the Attor- 2 neys; or 3 ‘‘(ii) the application of law to the 4 facts described in clause (i). 5 ‘‘(3) PERFORMANCE APPRAISALS.—Notwith- 6 standing any other provision of law or any regula- 7 tion or policy of the Library of Congress or Register 8 of Copyrights, any performance appraisal of a Copy- 9 right Claims Officer or Copyright Claims Attorney 10 may not consider the substantive result of any indi- 11 vidual determination reached by the Copyright 12 Claims Board as a basis for appraisal except to the 13 extent that result may relate to any actual or alleged 14 violation of an ethical standard of conduct. 15 ‘‘(c) DIRECTION BY REGISTER.—Subject to sub- 16 section (b), the Copyright Claims Officers and Copyright 17 Claims Attorneys shall, in the administration of their du- 18 ties, be under the general direction of the Register of 19 Copyrights. 20 ‘‘(d) INCONSISTENT DUTIES BARRED.—A Copyright 21 Claims Officer or Copyright Claims Attorney may not un- 22 dertake any duty that conflicts with the duties of the Offi- 23 cer or Attorney in connection with the Copyright Claims 24 Board. 25 VerDate Sep 11 2014 21:35 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1273.RS S1273 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 1273 RS ‘‘(e) RECUSAL.—A Copyright Claims Officer or Copy- 1 right [Text truncated for display. Full text available on Congress.gov.]