Supplemental reply comments regarding the Copyright Alternative in Small-Claims Enforcement (CASE) act

Copyright Claims Board: Active Proceedings and Evidence (Docket No. 2021–8)

Supplemental reply comments of SGA, SCL AND MCNA

I. Introduction and Statements of Interest

The following Supplemental Reply Comments are respectfully submitted by the signatory organizations Songwriters Guild of America, Inc. (“SGA”)¹, Society of Composers & Lyricists (“SCL”)², and Music Creators North America (“MCNA”)³, and by the individual music creators Rick Carnes⁴, Ashley Irwin⁵ and Eddie Schwartz⁶ (referred to collectively herein as the “Independent Music Creators).”

SGA is the longest established and largest music creator advocacy and copyright administrative organization in the United States run solely by and for songwriters, composers, and their heirs. Its positions are reasoned and formulated independently and solely in the interests of music creators, without financial influence or other undue interference from parties whose interests vary from or are in conflict with those of songwriters, composers, and other authors of creative works. Established in 1931, SGA has for 91 years successfully operated with a two-word mission statement: “Protect Songwriters,” and continues to do so throughout the United States and the world. SGA’s organizational membership stands at approximately 4500 members. SGA is represented by signatory Rick Carnes, who is signing as an individual music creator and copyright owner, and as an organizational officer.

SCL is the premier US organization for music creators working in all forms of visual media (including film, television, video games, and musical theatre). It has a membership of over 2000 professional composers and lyricists, and is a founding co-member –along with SGA and other independent music creator groups– of MCNA. SCL is represented by signatory Ashley Irwin, who is signing as an individual music creator and copyright owner, and as an organizational officer.

MCNA is an alliance of independent songwriter and composer organizations that advocates and educates on behalf of North America’s music creator community. As the only internationally recognized voice of American and Canadian songwriters and composers, MCNA, through its affiliation with the International Council of Music Creators (CIAM), is part of a coalition that represents the professional interests and aspirations of more than half a million creators across Africa, Asia, Austral-Asia, North and South America, and Europe. MCNA is represented by signatories Rick Carnes and Ashley Irwin, who are signing as organizational officers, and by its president, Eddie Schwartz.

Of particular relevance to these comments, SGA, SCL and MCNA are also founding members of the international organization Fair Trade Music⁷, which is the leading US and international advocacy group for the principles of transparency, equitable treatment, and financial sustainability for all songwriters and composers.

II. Supplemental Submission

By these Supplemental Reply Comments, the Independent Music Creators hereby repeat, reaffirm and incorporate the principles set forth in all prior CASE Act Docket submissions of the Copyright Alliance to which SGA, SCL and MCNA are signatories, including the reply comments of the Copyright Alliance filed today.

The Independent Music Creators, however, are further compelled to submit these Supplemental Reply Comments for the purpose of respectfully emphasizing in the strongest possible terms our organizations’ deep and continuing concerns over the issues of (i) the complexity of the proposed regulations pertaining to the CASE Act, and (ii) the very closely related yet unresolved matter of filing fees and their relation to “active proceedings.” We urge once again today that both these issues be subject to especially stringent review by the US Copyright Office (USCO) with the principles of economic fairness and feasibility for creators foremost in mind.
As Congress clearly indicated, the entire purpose of the CASE Act is to provide a legal remedy to creators “who cannot otherwise afford to have their claims and defenses heard in federal court⁸.” Resolving the issue of hyper-complexity in regulations –as well as addressing the fair and appropriate setting of fees for active proceedings– lie at the very heart of that goal.

A. Eliminating Complexities in Regulations

As the USCO is already aware, the Independent Music Creators have joined with and as part of the Copyright Alliance in urging the following:

One of our most significant concerns with the proposed rules is their complexity. Our members have been advocates for a copyright small claims system for more than a decade, and the system envisioned by the copyright community and articulated by sponsors of the CASE Act has always been one that is intentionally designed to make the process navigable by pro se parties. Instead, the system is shaping up to be procedurally more complex than is necessary or required by the statute.

One particular critique is that the system uses the federal rules as the starting point and relies too heavily on modeling after federal procedure. For example, the rules make reference to “cross-examination,” “redirect examination,” “impeachment” of witnesses, and application of the Federal Rules of Evidence by parties attempting to make arguments about admissibility of evidence. The proposed rules also adopt language from the federal system, like “requests for admissions” and “interrogatories” rather than plain, ordinary language that pro se parties would understand.

As the Office points out in the Small Claims Report, ‘The Federal Rules, while helpful in laying a comprehensive logistical framework for a wide range of lawsuits, can be difficult to navigate even for experienced litigators, much less pro se litigants⁹.’ As drafted, the proposed rules lay out a comprehensive logistical framework that will be extremely difficult for pro se litigants to navigate.

While fully reaffirming our support for the foregoing statement, we also take this further opportunity to let the USCO know that departures from the General Counsel’s Office of the USCO over the past year have served to create questions and concerns within the music creator community about whether the drafting of the Regulations in question were completed fully at arm’s length¹⁰. Owing to these special circumstances, we believe it is especially important for the USCO to carefully review the Regulations to ensure that complexity is kept to an absolute minimum, eliminating any possibility that past, undue influence was exercised by parties potentially seeking to undermine the effectiveness of the CASE Act through insertion of unnecessary complications into the procedural process.

B. The Related, Regulatory Issue of Filing Fees

As we have also pointed out in our past comments, after years of demonstrating to Congress that the rights of music creators granted pursuant to Article I Section 8 of the Constitution had become economically unenforceable due to the prohibitive costs of seeking enforcement through the federal court system, Congress acted decisively in 2020 to provide creators with a reasonable means by which to assert our statutory rights against copyright infringers through the CASE Act. We again take this opportunity to remind the USCO, in the context of Regulatory issues raised above, that it would be tragically self-defeating if rules promulgated under the resulting statute once again placed the opportunity for justice beyond the financial means of most creators.

More specifically –and very much related to the dangers of regulatory complexity in the defining of “active proceedings”– we repeat that the imposition of Regulations that would result in forfeiture by plaintiffs of full filing fees upon opt-outs by defendants would represent a major step backward, not forward, in the march toward a more just system of rights enforcement for creators.

As we have previously stated in Copyright Alliance Comments:

We…strongly urg[e] the Office to reconsider its proposal to set a single fee of $100 for commencing [a proceeding] before the CCB and we strongly encourage the Office, instead, to follow the guidance of the Senate Report in instituting a tiered/split fee structure for initiating [such] a proceeding for the reasons explained in our initial comments¹¹. Of the 179 initial comments filed…the vast majority were comments submitted by individual creators expressing concern that the proposed $100 fee would be cost-prohibitive. Therefore, if the Office still believes that it does not have authority under the statute to create a tiered/split fee structure, we strongly urge the Office to make a significant portion of the filing fee refundable if the respondent opts out.

In considering the foregoing fee proposals, we again respectfully implore the USCO to ponder the following, crucial questions regarding an issue that may drastically affect creators of all artistic disciplines and genres: Could Congress possibly have intended –in light of the stated principle purpose of the Act– to add insult to injury by asking a creator to place $100 of her or his hard-earned royalties at risk in order for a chance at fairness, only to have such amount forfeited by the stroke of a defendant’s pen indicating a withdrawal from the “active proceeding” process? And wouldn’t rules put in place reflective of such a counter-intuitive policy render the CASE Act a nullity at its threshold, potentially converting it into a weapon of further abuse against creators rather than the promised cure for the “right without a remedy” conundrum Congress was seeking to address?

We again suggest that Congress most certainly did not intend such results, and that a clear path exists for the USCO to act within the statutory guidelines to establish either a carefully tailored, tier-based or segmented fee system, or alternatively, a simple refund structure in cases in which an opt-out negates the proceeding. It is our hope that the USCO shares our view that Congress

clearly intended by the CASE Act to assist economically challenged creators in enforcing their rights, rather than handing defendants another tool by which to punitively circumvent those rights for both personal and commercial gain.

III. Conclusion

We thank the Copyright Office for this opportunity to submit these Supplemental Reply Comments, and as always remain available to answer any questions the Office may have.

 

Respectfully submitted,

 

Rick Carnes 
President, Songwriters Guild of America
Officer, Music Creators North America

Ashley Irwin
President, Society of Composers & Lyricists
Co-Chair, Music Creators North America

 

CC:

Mr. Eddie Schwartz, President, Music Creators North America
Ms. Carla Hayden, US Librarian of Congress
The Members of the US Senate and House Judiciary Committees
The Members of the US Senate and House Appropriations Committees
Charles J. Sanders, Esq.