From the Association of American Publishers:
The Association of American Publishers (AAP) supports the Copyright Alternative in Small-Claims Enforcement Act of 2017 (or the CASE Act of 2017), a bi-partisan initiative introduced earlier this week.
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[The proposed legislation] would establish a process within the U.S. Copyright Office for resolving disputes involving low-value claims.
As it stands today, both copyright claimants and copyright defendants are at a loss for affordable dispute resolution when it comes to small claims. A report of the American Intellectual Property Law Association stated that the average cost of litigating a copyright infringement case in federal court from pre-trial through the appeals process is $278,000 – an amount which is out of reach for many authors, publishers and related businesses in the copyright ecosystem.
Link to the rest at the Association of American Publishers
PG says be careful what you wish for. When large organizations are sued in by individuals in small claims court, many companies hire attorneys to appear in court in their defense.
Some small claims are legitimate, but others are just weird. PG doesn’t know if any of the small claims courts around the US have effective pre-trial processes for cleaning out the weird claims, but if the proposed Copyright Small Claims court does not, publishers and authors will be spending lots of time and money defending claims that they stole somebody’s idea as embodied in a middle-school writing assignment.
For a while now, some in the copyright community have been pushing for a copyright “small claims court” as an alternative to filing a federal lawsuit over copyright law. It’s true that, especially for small copyright holders, the cost of filing a lawsuit may appear to be rather prohibitive. But it’s not clear that a small claims court is the answer. A few years ago, we wrote about some potential concerns with such an approach, but have also admitted that if set up right, it could have some advantages. But that requires it be set up right.
Unfortunately, a new bill has been introduced, by Rep. Hakeem Jeffries, along with Rep. Tom Marino, to officially set up such a system — and it’s done in a way that looks like it will not be well-designed, and instead will lead to a massive rush of small claims, especially by copyright trolls.
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But the really big problem in my mind is that this seems likely to just be swamped by copyright trolls. We already see that they’re flooding the federal court system, where multiple rulings against joinder (i.e., the ridiculous bundling of thousands of possible file sharers together) has meant that when trolls do sue, they’re generally limited in how many people they can sue. Making the process cheaper, but still offering statutory damages amounts that can be quite scary to the average American, and that can still get the job done of scaring threatened users into paying up fines that are much smaller than the $15,000.
And, yes, this small claims system will allow for discovery, which is the key feature that trolls want. They want to sue, and then get discovery where they can send demands to ISPs for names of subscribers based on IP addresses, and there doesn’t appear to be anything in the bill to stop that. It does note that parties seeking discovery need to show “good cause” to enable discovery, but that may be a fairly low bar.
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Another potential issue: the bill would let individuals go after not just actual infringers, but alsoservice providers if they fail to follow through on a DMCA takedown notice. Basically, it exports the DMCA safe harbors to this small claims process as well, but that may mean that internet platforms are going to get dragged through this process that was meant to focus on small claims that could be easily adjudicated.
Link to the rest at TechDirt