Catching up on the Fair Use Week blogging action, yesterday’s entry from Kenny Crews should give us all cause for concern. In it, he describes the CASE Act, a law that was passed as part of the COVID Relief bill late last year. (Why was it part of the COVID Relief Bill? Because it was a must-pass bill, stuffed with all kinds of goodies that might not have passed on their own.)

The CASE Act creates a new quasi-court, housed in the Copyright Office and empowered to hear copyright claims in a speedy, low-cost process designed to give copyright holders with “small claims” better access to courts. The Act has many flaws, including that the $30,000 maximum damages it makes available are an order of magnitude higher than any other “small claims” proceeding now in existence.

But the aspect of CASE that keeps me and many other fair use advocates up at night is the very high likelihood that fair use will get short shrift in this new tribunal. In his blog post, Kenny walks through all the steps in a CASE Act proceeding, and shows how fair use is liable to suffer at each stage. His conclusion seems exactly right to me:

Until the court can demonstrate a record of wise and effective rulings on fair use, any party to a claim that is likely to hinge on an innovative or nuanced question of fair use would probably we wise to opt-out of small claims and send the case to settlement or federal court. —[Fair Use Week 2021: Day One With Guest Expert Kenneth D. Crews Copyright at Harvard Library](