Home » Copyright/Intellectual Property » Copyright Small Claims Act: Update

Copyright Small Claims Act: Update

8 January 2019

From The Creative Law Center:

A copyright small claims court is an idea whose time has come.

The problem with the current system of copyright enforcement in the United States is that it’s too expensive and complex. Estimates are that it costs an average of ~$350,000 to prosecute a federal lawsuit to enforce copyrights. I have been involved in cases that have taken as long as seven years to resolve and cost my clients anywhere from $250,000 to $800,000. Most creative professionals simply can’t afford to protect their rights. The game is for the big players only.

The way it stands now, visual artists, authors, songwriters, bloggers, vloggers, and small businesses have rights in their creative properties, but no meaningful remedies when their work is taken. Certain members of Congress, working with key stakeholders, are trying to fix that problem.

. . . .

The CASE Act is an attempt to create a simple and inexpensive process that will allow creative professionals to bring claims of infringement or seek declarations of non-infringement.

The  idea of the current draft is that there would be a small claims tribunal called the Copyright Claims Board operating out of the Copyright Office. Three Officers would hear the claims. Attorneys would be optional; claimants could bring and argue their cases themselves. Hearings would be conducted electronically with no need to appear in person. So, no travel costs.

Using the Copyright Claims Board to resolve an issue is completely optional. A copyright holder does not need to file a claim there and the respondent (the person against whom the claim is filed) can opt out of the process.

Damages are limited. Statutory damages per work infringed cannot exceed $15,000, total damages cannot exceed $30,000. Filing an application for copyright registration is required before a claim can be brought. A claimant is limited to filing up to 10 cases per year, referred to as the “cap.”

. . . .

My client, Elizabeth Putsche, has been involved in litigation over ownership of a body of work consisting of 15,000 photographs for nearly four years in four different courts, both state and federal in two different states. Her ordeal has turned her into a copyright reform activist. Her persistence, as well as the hard work of many others, resulted in a hearing being scheduled just a month after our visit.

. . . .

The CASE Act: the Hearing

There were five witnesses at the hearing: two who represent organizations in support of the bill; two who represent various aspects of big tech who oppose the bill; and a photographer who wants a meaningful way to enforce her rights.

These are the witnesses you will see in the clip below (links are to their written testimony):

  • David P. Trust is the CEO of Professional Photographers of America. Mr. Trust does a nice job of laying out the struggles faced by creative professionals enforcing their rights. He emphasizes the real life impact the problem has on their ability to earn a living.
  • Matthew Schruers is Vice President for Law and Policy at the Computer and Communications Industry Association, a trade group. He’s worried about the problem of trolls clogging up the system with claims against internet users who illegally download videos (mostly porn). I love the part where he pretends to speak for the millions of internet users who he really doesn’t speak for but who can’t be there to speak for themselves, but if they were they’d object. Representative Jeffries (D-NY) deals with Mr. Schruers’s arguments handily toward the end of the clip.
  • Jenna Close is a professional photographer and past Chair of the American Society of Media Photographers. She brought the point home, again and again, that though she may have the rights, she doesn’t have the remedy to enforce them. The Committee showed her a great deal of respect. Her testimony was impressive, in both content and delivery. She’s a boss.
  • Jonathan Berroya is Senior Vice President and General Counsel of the Internet Association. Mr. Berroya also represented big industry players. His primary concern was that the bill should not undermine §512 of the DMCA protections for internet service providers.  But later, he overstepped his charge with a hypothetical about a needle pointin’ grandma from Boca Raton. Representative Doug Collins (R-GA) gave Mr. Berroya a solid smack-down over the use of a hypothetical. It’s fun to watch, but I’m sure Mr. Berroya still isn’t happy about it.
  • Keith Kupferschmid is the CEO of the Copyright Alliance. My impression is that he has taken the laboring oar on negotiating this legislation on behalf of creative professionals. In his written statement, he thoughtfully details the reasons and compromises that make the CASE Act read the way it does.

Link to the rest at The Creative Law Center

Following is a video created by Kathryn Goldman, the author of the OP, of some excerpts from the hearing about which she writes.

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Copyright/Intellectual Property

15 Comments to “Copyright Small Claims Act: Update”

  1. I tweeted this and urge everyone to publicize it. People are distracted by all the noise in the news, but here’s a bill to help everyone (even little guys own copyrights in their photos), and especially professional creative folks. Tell your representative you support it, please!

  2. Maybe since I have no copyrighted content I have a different view, but if the goal is to make lawsuits super easy and less expensive, isn’t the point about the “trolls clogging up the system” valid? Wouldn’t you have people filing complaints left and right and against whom?

    If I go online and download something that is copyrighted, am I the one being dragged in front of a digital court for up to 15k of my money? I post a cute picture of something copyrighted (or the picture itself was copyrighted) on my social media, is that a 15k lawsuit waiting to happen?

    • Troll will be trolls. Troll behavior is not a good reason to deny creative professionals the opportunity to enforce their rights. Court officials are good at identifying who the trolls are. One solution might be to create a separate docket that has limited capacity and funnel the trolls into it. They’d be slowed down by their own volume of cases.

      • The convenience of the creative professionals has to be balanced against the inconvenience done to rest of us by poorly drafted legislation that opens a door for trolls. Creative professionals aren’t special.

    • “A claimant is limited to filing up to 10 cases per year, referred to as the “cap.””

      So, they did think about trolls filling up the dockets with one lawsuit after another.

      • Right the cap of ten items. Now I could be wrong with how I read the article, but if that is ten items per person per year that raises an interesting question.

        So if I have one book, or I’ve written 100 books. I’m still limited to the same ‘cap.’ Interesting so someone who is much more exposed to potential violation, still has the same limit on ability to protect themselves.

        Also, if this is such a severe problem that we need to design literally a whole new system to combat it, why is it limited to only 10 violations?

        In otherwords, if people are stealing my content left and right and this system is designed to eliminate it, I can only go after ten people a year?

        So a hundred people download my book in one week, and I can now get justice in ten years for that week’s of infractions? Can be children and grand children and great grand children file claims on my behalf when I die so justice can be served?

        It seems to me such a cap proves its a minor problem that only ten violations a year can be handled per person. If its such a minor problem, why the hassle?

        If its a huge huge problem that we need to design a whole new system to handle, how is limiting it to ten claims per person going to fix the issue?

  3. Here’s the techdirt take which explains why this is such a bad idea, plus it gives links to many other articles about the topic
    https://www.techdirt.com/articles/20180930/00360440745/another-zombie-bad-idea-that-just-wont-die-copyright-small-claims-court-would-be-free-speech-disaster.shtml
    TLDr, it assumes that all copyright infringement claims are legitimate which opens up it to abuse from copyright trolls, and could significantly effect FreeSpeech bye weakening copyright toleration.

    • At the hearing, Rep. Lofgren acknowledged that there needs to be consideration given to the judicial doctrine of fair use in order to balance the First Amendment concerns raised by the TechDirt article. Aren’t we clever enough to provide protections to the creative class for their original work and still protect free speech? I think so.

      • Aren’t we clever enough to provide protections to the creative class for their original work and still protect free speech?

        Maybe ‘we’ are. But I’m not nearly so hopeful about the hack politicians and time-serving bureaucrats who are sure to leave their fingerprints all over the actual legislation.

      • Aren’t we clever enough to provide protections to the creative class for their original work and still protect free speech?

        History indicates we are not. It hasn’t happened. Nor is there any indication we are at all prepared to compromise for the benefit of the people who refer to themselves as the creative class.

  4. I think artists and authors are ignoring the other side of the coin, if it’s easier to take someone to court it will also be easier to be taken to court Buy another for infringement, an not uncommon possibility given how similar indie authors covers are these days.
    I don’t know if anyone remembers Faleena Hopkins, but if she Had been able to make good on her threat of suing those she disagreed with instead of just blustering about it, I suspect many authors would have capitulated because they couldn’t afford to fight her in court.
    There’s a good reason why it’s expensive to take someone to court, and its to make sure that it’s not done lightly.

    • Faleena Hopkins was abusing Trademark law, which is different than copyright law. The Case Act specifically provides access to affordable legal action for the ‘middle class’ of creators who can’t afford a quarter of a million dollars or more per case for copyright infringement. Trademark, as far as I can tell from a quick read of the synopsis of the Act, is not included. Trademark infringement cases would remain in Federal court.

      (I’m sure that if I got that wrong, someone will correct me. :P)

  5. For anyone who is interested, the Berkeley Technology and law journal provided this summary of the wide range of concerns held by people about this bill.
    http://btlj.org/wp-content/uploads/2017/11/Samuelson-Hashimoto-Scholarly-Concerns-CROPPED.pdf
    Apologies for the length, but it does go into detail about the various problems, including constitutionality of the act, the jurisdiction of this new court and issues with abuse.

    • Interesting article, great link. I always love things like this because it provides such a wonderful contrast. Whose rights do you try to defend? If you make it really easy to defend the rights of the content creators, you can easily trample on the rights of the rest of the public. vice versa.

      Often times pesky things like other laws and the constitution can get in the way of doing what – at times – even the majority of the population think is “right” and “moral.”

      I think that is something you see often in the courts and especially in the supreme court. At times the decisions the supreme court makes don’t seem to have much basis at all in constitutional law, but their ‘activism’ can often be justified as to what they believe is “right” and “moral”.

      Of course when you debate moral and rights based laws, how do you balance between the two parties with fundamental different viewpoints and agendas? I don’t know about you, but I hardly ever trust my government bureaucrats or judges to make a proper choice.

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