{"id":33400,"date":"2020-12-29T19:36:00","date_gmt":"2020-12-29T19:36:00","guid":{"rendered":"https:\/\/www.dinsmore.com\/?post_type=publications&p=33400"},"modified":"2025-10-03T19:38:10","modified_gmt":"2025-10-03T19:38:10","slug":"intellectual-property-measures-included-in-spending-and-coronavirus-relief-omnibus-bill","status":"publish","type":"publications","link":"https:\/\/www.dinsmore.com\/publications\/intellectual-property-measures-included-in-spending-and-coronavirus-relief-omnibus-bill\/","title":{"rendered":"Intellectual Property Measures Included in Spending and Coronavirus Relief Omnibus Bill"},"content":{"rendered":"\n
\"\"\/<\/figure>\n\n\n\n

While most Americans are likely aware that President Donald Trump signed a pandemic relief and government spending bill into law on Dec. 27, 2020 (the \u201cOmnibus Bill\u201d),[i]<\/a> it is important for those who have intellectual property assets to understand that tucked away into this nearly 5,600-page legislation are laws impacting copyrights, trademarks, and patents. Despite receiving only limited scrutiny before becoming law, the copyright and trademark laws in particular could have a profound impact on protection and enforcement of these assets.<\/p>\n\n\n\n

Copyrights<\/strong><\/p>\n\n\n\n

The Omnibus Bill impacts copyright law in the following general ways: It establishes a copyright small-claims court within the U.S. Copyright Office to adjudicate disputes valued at $30,000 or fewer in damages, and it creates felony criminal penalties for unauthorized commercial streaming.<\/p>\n\n\n\n

The CASE Act. The Copyright Alternative in Small-Claims Enforcement Act of 2020 (the \u201cCASE Act\u201d)[ii]<\/a>established the Copyright Claims Board, a quasi-judicial tribunal with three \u201cCopyright Claims Officers\u201d appointed by the librarian of Congress. The law empowers the Board to hear claims for copyright infringement, a declaration of noninfringement, misrepresentation of takedown notices and counter-notices, and all related counterclaims and defense (so long as all claims arise out of the same allegedly infringing activity or course of activities and do not exceed $30,000 in the aggregate).[iii]<\/a> Participation is voluntary and defendants can opt out. Damages are capped at $15,000 per claim or $30,000 for the entire case.[iv]<\/a><\/p>\n\n\n\n

The CASE Act was introduced and passed in the House last year but, until now, it had been held up in the Senate. Proponents of the CASE Act believe this new mechanism will enable more copyright holders to access the judicial system by providing an alternative to the more traditional copyright litigation in federal court. Critics, however, raise concerns that this new venue may have unintended consequences of (a) making it easier for big media companies to pursue damages from ordinary internet users and (b) being abused by \u201ccopyright trolls\u201d or to silence free speech; or (c) being ineffective altogether because of the opt-out option. To deter abusive practices, the law includes a Bad Faith Conduct provision, which \u201cdirect[s]\u201d the Board to award reasonable costs and attorney\u2019s fees in the event it finds a party utilized the tribunal to harass or for other improper purposes[v]<\/a> (and barring the period for 12 months for repeat offenses[vi]<\/a>).<\/p>\n\n\n\n

\"\"\/<\/figure>\n\n\n\n

The Felony Streaming Act. The Felony Streaming Act[vii]<\/a> makes the unauthorized commercial streaming<\/em> of copyrighted material a felony (as opposed to its current status of a misdemeanor) to harmonize the penalty with the unlawful reproduction<\/em> or distribution of copyrighted works.[viii]<\/a> The bill imposes penalties for illegal large-scale sites that are \u201cprimarily designed to publicly perform unlicensed works without permission for financial gain and have no other \u2018commercial significant purpose.\u2019\u201d It imposes the possibility of up to 10 years in prison for violators if the operator knew or should have known that the work was prepared for a commercial public performance.[ix]<\/a><\/p>\n\n\n\n

Trademarks<\/strong><\/p>\n\n\n\n

The Trademark Modernization Act<\/strong>[x]<\/a>includes three major changes to trademark law that will take effect at the end of 2021.<\/p>\n\n\n\n

First<\/em>, the law creates a process for third parties to challenge both applications and issued trademarks.<\/p>\n\n\n\n