{"id":471,"date":"2022-02-21T03:36:26","date_gmt":"2022-02-21T03:36:26","guid":{"rendered":"http:\/\/blogs.harvard.edu\/copyrightosc\/?p=471"},"modified":"2022-02-21T03:36:26","modified_gmt":"2022-02-21T03:36:26","slug":"fair-use-week-2022-day-one-with-guest-expert-kenneth-d-crews","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/2022\/02\/21\/fair-use-week-2022-day-one-with-guest-expert-kenneth-d-crews\/","title":{"rendered":"Fair Use Week 2022: Day One With Guest Expert Kenneth D. Crews"},"content":{"rendered":"

We are delighted to kick off the 9th Annual Fair Use Week with a guest post by the international copyright expert, Kenneth D. Crews, as he predicts\u00a0the role of fair use in the U.S. Copyright Office’s new small claims court. -Kyle K. Courtney<\/em><\/p>\n

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Fair Use and Small Claims: Getting Ready for the Big Deal<\/strong><\/h2>\n

by Kenneth D. Crews<\/p>\n

An irony of fair use is that it can be patiently supportive and thoroughly demanding at the same time. It can nurture the individual spirit, and simultaneously require complex litigation strategies. In our daily pursuits, we might be comfortable clipping, pasting, mixing, adapting, and generally engaging with fair use in an enlivened quest for creativity. On the other hand, if ever we had to convince a judge of our legal position, we would become immersed in extensive research and analytical arguments.<\/p>\n

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That ambivalence of fair use may soon reveal itself with the opening of the new \u201csmall-claims court\u201d for copyright infringements.\u00a0 I and others have written<\/a> generally about this new quasi-judicial Copyright Claims Board, soon to commence operations within the U.S. Copyright Office<\/a>. The new Board was established with the passage of the CASE Act, enacted by Congress in late 2020 as part of an appropriations bill<\/a>. It creates a distinct process for bringing and resolving \u201csmall\u201d copyright infringement actions<\/a> that may come before this new Board and the three Copyright Claims Officers<\/a> who will rule in proceedings. The Officers can hear allegations of infringement, and they can act on defenses, including fair use.<\/p>\n

The Board has authority to award damages, generally capped at $30,000 per proceeding, and the expectation is that the Board will make determinations in common matters where the total dollars at risk are not exorbitant.\u00a0 The Board may hear cases about scanned and uploaded pages, or movie clips posted to personal websites and on YouTube.\u00a0 Depending on the exact facts of each claimed infringement, these familiar pursuits could form an ideal context for confrontations over fair use<\/a>.<\/p>\n

Some battles will not actually occur.\u00a0 A crucial element of the Case Act, intended to buffer it from constitutional challenge, is the broad authority of respondents who are hit with claims to opt out of the system<\/a>, leaving the original copyright owners with the choice to file the case in the conventional federal courts \u2013 exactly the burdensome and expensive option the claimant hoped to avoid.\u00a0 Opting out will likely be common.\u00a0 But some cases will nonetheless proceed, bringing fair use to the fore.<\/p>\n

Jump ahead several years: The determinations of the Copyright Claims Board are required to be publicly reported.\u00a0 We might get only brief conclusions. With luck, we might see a dense public record of allegations and evidence, documents and arguments, and the Board\u2019s explanations and rationale. However, the new law states unequivocally that the rulings are not to have any precedential value<\/em>. That stipulation will do nothing to stop analyses of the Board\u2019s track record and the use of trends and analytics in strategic planning by future parties. Whether we like it or not, in the years ahead, we will be exploring and exploiting the direction that the Copyright Claims Board has taken on the meaning and application of fair use.<\/p>\n

The proceedings before the Board may indeed be efficient and individualistic. But the arguments and findings about fair use could easily be as demanding and complex as those found in the court system. Yet the realistic ability to make a sophisticated and persuasive legal argument may be out of balance. The claimant bringing the action could be a large entity with ample legal support, while the respondent may often be that modest user who is experimenting with remixes<\/a> and fan fiction<\/a>.<\/p>\n