The CASE Act Is Constitutionally Suspect and Has Serious Due Process Issues

Joshua Lamel
Jun 26 · 4 min read

By Joshua Lamel and Sasha Moss

In our second blog post about the CASE Act, we take on the judicial and extrajudicial concerns of the legislation. By establishing a judicial function within the legislative branch, not the judicial, the proposed legislation raises serious constitutional issues with having a court within the legislative branch that doesn’t even have a right of appeal.

As noted previously, the court of jurisdiction for the small claims procedure is the Copyright Office. If this sounds strange — a legal proceeding executed within the legislative branch, not the judicial — you are correct. This is not only strange, it is entirely unique to this legislation.

As background, the Copyright Office is not a function of the executive branch, as many often believe. The Copyright Office is an arm of the Library of Congress, which is under the jurisdiction of Congress. Whilst the Librarian of Congress is appointed by the President, she is accountable to Congress. Each year, the Librarian has to petition Congress for operating funds. In their testimony, they are required to account for how she spends money, new projects of the Library, and provide an overview of how the Library and its subordinate branches are functioning.

Furthermore, the head of the Copyright Office, known as the Register of Copyrights, also has to account for spending and execution of copyrights to Congress. And if you were wondering, each branch of the Library has to account for funds, this includes the head of the Congressional Research Service as we saw just as recent as last week. This is to ensure Congress keeps an eye on its’ subordinate offices and the public is informed about how their tax dollars are being spent.

If passed, the CASE Act will establish a judicial function within the legislative branch, the first of its kind and a terrible precedent. Our founders established three separate branches with three separate functions to allow for each branch to act as a check on the other. If functions of branches are shared across each branch, our republic will begin to look more like a unitarian monarchy. If you would like more information in regard to the constitutional concerns surrounding the legislation, please read Paula Samuelson and Katheryn Hiromoto’s paper, “Scholarly Concerns About a Proposed Copyright Small Claims Tribunal.”

Aside from the constitutional concerns, this legislation provides for no judicial review. If the small claims panel rules in favor of the plaintiff, the defendant will have no legal recourse unlike other judicial proceedings. Imagine for a moment you are accused of stealing a car; the evidence is stacked against you. Not only were you seen in the area around the time the alleged theft happened, you later were seen driving a vehicle similar to the one alleged to have been stolen, and you have been previously been convicted for theft. But you did not do it. Naturally, you would appeal the ruling.

Now, imagine you were not provided a right of appeal and you have to pay the plaintiff for their loss, which usually exceeds the cost of the stolen property because personal injury is also assumed. How would you react? Not well! And this is what will happen if the CASE Act is passed. Damages for a work stolen can be up to $30,000. And you will have to pay regardless of the circumstances surrounding the alleged infringement.

As we wrote in our previous blog, the CASE Act is riddled with problems. Not only is the remedy nearly half of the standard American household income ($60,336), it also does not provide for the same discovery standards as federal courts. Discovery is essentially all of the evidence both sides have, and it is shared between parties during a legal proceeding. It can take into account anything of concern to the proceeding — from the hard evidence to family circumstances. Discovery allows for counsels to most effectively and transparently lodge their case, but it also allows for the judge to provide a ruling that adequately matches the alleged crime. Furthermore, discovery can be used in an appeal. The plaintiff and defendant are allowed to have full access to the discovery so they can take it to another proceeding. However, because there is no right of appeal, there is no opportunity to review the evidence.

The CASE Act is ripe to create what Kerry Meave Sheehan called a “default judgement mill.” This is due to lack of appeal. Because judgements will be handed down by a tribunal of experts from the Copyright Office, who can only judge the proceeding through a narrow set of facts, bad actors may take advantage of this system. Furthermore, while the CASE Act does provide for the right to dismiss a claim or defense if the tribunal decides it is not suitable, without clear limitations as well a breadth of discovery, it is hard to imagine a situation in which a claim is not adjudicated. And because this proceeding does not allow the alleged infringer to “opt-in” she will have to go through the necessary steps to “opt-out.” If she even understands what the proceeding is and knows it is actually a legal proceeding, she will have to consult counsel on how to opt-out. This is in no way a simple process as advocates for the legislation have stated.

We cannot express how important it is to ensure each branch’s functions remain separate. Nor can we express how difficult and onerous this proceeding will be for both the alleged infringer and plaintiff. Nothing about the CASE Act is simple or expedient aside from the time the proceeding takes.

Re:Create Coalition

We are creators, advocates, thinkers, users, and consumers who stand for a copyright system grounded in the Founders’ promise to “promote the progress of science and useful arts.”

Joshua Lamel

Written by

CEO at InSight Public Affairs & Executive Director of Re:Create. Tech policy wonk & digital rights activist. Part lobbyist, part lawyer, part pr guy.

Re:Create Coalition

We are creators, advocates, thinkers, users, and consumers who stand for a copyright system grounded in the Founders’ promise to “promote the progress of science and useful arts.”