Latest COVID-19 Relief Law Contains Copyright and Domain Name Law Changes

The Consolidated Appropriations Act for 2021 contains important intellectual property changes that will impact copyright and domain name owners...

The Consolidated Appropriations Act for 2021, which President Donald Trump signed into law on December 27, 2021, contains important intellectual property changes that will impact copyright and domain name owners. The Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act) establishes a small claims tribunal within the U.S. Copyright Office, while the Protecting Lawful Streaming Act of 2020 makes it a felony to stream pirated content for commercial purposes.  The Act includes an important policy provision regarding the maintenance of public information concerning domain name owners.

Copyright Law Changes Under the CASE Act

The CASE Act establishes a Copyright Claims Board comprised of three officers with significant experience resolving copyright claims. The members of the tribunal would be recommended by the Register of Copyrights and appointed by the Librarian of Congress. Below are several other key provisions of the new law:

• Voluntary participation: Proceedings can be initiated by a copyright holder claiming infringement or by a user seeking to obtain a legal declaration of non-infringement. The small claims court will be authorized to hear claims for misrepresentation in connection with a notification of claimed infringement or a counter-notification seeking to replace removed or disabled material under Section 512(f) of the Digital Millennium Copyright Act.
• Limited Damages: Awards of statutory damages are limited to $15,000 for each work infringed, provided the works were registered with the U.S. Copyright Office prior to infringement or within three months of publication. For works that were not timely registered, damages are limited to $7,500 per work.  Monetary damages in any one proceeding are capped at $30,000.
• Attorneys’ Fees: Except in the case of bad faith conduct, the parties to proceedings before the Copyright Claims Board will bear their own attorneys’ fees and costs.
• Electronic Proceedings: Claims before the board will not require in-person appearances by parties or others. Instead, they will take place by means of written submissions as well as hearings and conferences accomplished via Internet-based applications and other telecommunications facilities.

Supporters of the CASE Act maintain that copyright infringement claims will proceed more quickly and be less costly to litigate. Meanwhile, critics contend that the small claims court will encourage more lawsuits, particularly by so-called “trolls.”

Copyright Law Changes Under the Protecting Lawful Streaming Act of 2020

Under current law, only violations of the reproduction and distribution rights of copyright owners can be charged as felonies, while criminal infringement via streaming (or “publicly performing”) only results in a misdemeanor. The Protecting Lawful Streaming Act aims to crack down on streaming piracy by closing this so-called “streaming loophole.”

Under the Protecting Lawful Streaming Act of 2020, codified as 18 U.S.C. § 2319C, federal prosecutors are authorized to bring felony charges against a digital transmission service that:

• Is primarily designed or provided for the purpose of streaming copyrighted works without the authority of the copyright owner or the law; or
• Has no commercially significant purpose or use other than to stream copyrighted works without the authority of the copyright owner or the law; or
• Is intentionally marketed by or at the direction of that person to promote its use in streaming copyrighted works without the authority of the copyright owner or the law.

A conviction for violation of section 2319C carries a punishment of up to three years imprisonment. The maximum penalty increases to five years if the offense was committed in connection with one or more works “being prepared for commercial public performance.”

Commerce, Justice, Science, and Related Agencies Appropriations Act, 2021

The massive COVID-19 relief bill also includes the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2021, which mandates changes to domain name registration “WHOIS” requirements. The joint explanatory statements (JES) accompanying the bill specifically directs the National Telecommunications and Information Administration (NTIA), which represents the U.S. Government at ICANN’s Governmental Advisory Committee (GAC), to work with the Internet Corporation for Assigned Names and Numbers (ICANN) to expedite the establishment of a global access model that provides law enforcement and IP rights holders timely access to accurate domain name registration information. It further states that NTIA is encouraged, as appropriate to require registries and registrars based in the U.S. to collect and make public accurate domain name registration information.

The domain name registration requirement is a response to ICANN’s decision to suspend mandatory WHOIS requirements and the subsequent lack of a new global access model. By addressing the issue in the federal spending bill, Congress has demonstrated that it will continue to press NTIA to work with ICANN to bring such a public information access model quickly to fruition. 

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.