In my experience, the number-one complaint about contemporary copyright is that it is unenforceable in the digital age. Independent creators take one look at the scope of infringement relative to the cost of a single litigation and give up on the idea that they have any control. Many infringers—from casual to corporate—are either unaware that they’re infringing or they know how unlikely enforcement is for small creators; and this breeds the kind of smug responses we read about all the time. You know the ones. Where even a major brand uses a photograph for its marketing and then tells the photographer he has a lot of nerve to ask for money and should actually be grateful for the “exposure.”
On top of all this day-to-day infringement, the sage critics of copyright, those self-appointed defenders of the tubes, tell everyone there is no way to enforce copyrights online without sabotaging the delicate workings of the web. Some of these ivory-tower think-tankers even claim to care about authors with a sympathetic shrug and declare, “Artists do deserve to get paid, but we can’t afford to damage the innovation. You don’t want to hurt the innovation, do you?” Ergo, non-enforcement for thousands of small-scale and start-up creators becomes a predicate for steadily eroding copyright as principle.
The Small Claims Bill
It won’t solve every problem, but it should make a tangible difference for a significant population of creators who currently do not avail themselves of any enforcement procedure, but would if the barriers were lower. And frankly, copyright critics and internet-advocates (the ones who claim to care about creators) should actually support this bill because it establishes a forum for narrow, voluntary, and limited resolution between a rights holder and an alleged infringer without creating even a hint of a new liability implication for investing in web platforms.
H.R. 3945, the Copyright Alternative in Small-Claims Enforcement Act (CASE) has been more than a decade in the works. This amendment to the copyright law would establish a three-officer Copyright Claims Board within the Copyright Office, comprising two expert copyright attorneys and one attorney with specific experience in alternative dispute resolution. Rights holders can file complaints through electronic communications, without an attorney, and respondents may avail themselves of all the same defenses (e.g. fair use) that may be asserted in a federal litigation.
A Few Key Features
The small-claim option is voluntary for all parties and has the legal enforcement status of “alternative dispute resolution.” It does not preclude either claimants or respondents from availing themselves of litigation by opting out of the small-claim process; and re-litigation is an option if claims or counterclaims were not raised and decided upon by the Board. (See CORRECTION note below.) Both parties must agree to specific opt-out obligations. For instance, a respondent has 30 days to opt out upon original notice of proceeding or he/she may lose in a default judgment that is then enforceable through any court in the U.S.
A rights holder may initiate a small claim for a work that is not registered but must file a registration concurrent with the proceeding. If the work was not registered at the time of infringement, this limits the maximum award the rights holder may seek through the small-claim process, but it is an option for some relief that does not exist in federal litigation, which is impossible for an unregistered work.**
One big advantage to the small-claim provision that rights holders and copyright critics should like (though I wouldn’t hold my breath for the critics) is that the Copyright Claims Board is a copyright only panel. This is significant because ordinary court filings are sometimes bogged down by a litany of complaints or defenses that have little to do with copyright infringement, and the courts have to slog through these while the meter is running. Moreover, the small-claim panel’s specific expertise in copyright law is not necessarily going to be present in any number of federal judges, who might be presiding over hate crime in the morning and copyright in the afternoon. This copyright-specific aspect of the Board should be beneficial to both claimants and respondents.
Both claimants and respondents can avail themselves of the small-claim option without attending proceedings in person. Most of the process is handled through electronic filings with a proposal to use video conferencing for discussion and resolution. One of the myths being spread about this bill is that both parties are required to travel to Washington, D.C. Not true.
Attorneys may be employed by either party but are not required. This can prove particularly helpful in cases where the rights holder seeks a relatively modest settlement for an infringement he does not consider highly egregious or highly costly to his interests.
Although some of the usual copyright haters, like Public Knowledge, assert that the Board will become a “clearing house for awarding fees to every copyright troll” in the country, this assumption actually makes little sense. For example, the bill contains anti-abuse provisions that don’t exist in regular court proceedings. A bad-faith claimant can bring lousy copyright cases to court week after week. But a claimant who files bad-faith (i.e. harassing) complaints with the Copyright Claims Board may face financial penalties and/or be barred from using the small claims option for a year.
Rebalancing the Landscape
In everyday practice, a vast population of rights holders you’ve never heard of have neither the time nor the interest to restrict every casual use of their work online; and by the same token, a vast number of users you’ve never heard of don’t even understand when they’re infringing. This problem has been exacerbated by PR funded by the internet industry, which has a vested interest in weakening copyright and could not care less who among these nameless parties is harmed amid all the confusion.
These authors, who want to maintain control over their work, are not out to punish every blogger and they are certainly not expecting to earn big money through litigation. But the entrenched assumption that everything online is there for the taking has to stop. Most infringements are the result of laziness, ignorance, or greed—all of which is very easily ameliorated with a basic (and free-to-use) guideline: don’t use what isn’t yours without permission. And if the small claim option gives more independent creators a path to enforce their rights, then there’s a decent chance that small-time infringers will discover the value of this very simple rule of thumb.
A New Reason to Register Works
One of the concerns raised by my friend Leslie Burns is that the small claim provision will act as a disincentive to register works. She may be right with regard to people’s habits—artists do hate paperwork—but I would recommend that creators view the small claim provision as a great reason to register works because it provides a new path for enforcement that is only strengthened by timely registration.* Not only can a claim for a timely-registered work receive a higher maximum award for damages, but registration also shows an alleged infringer (respondent) that the author is serious about the work and the claim, and this should act as an incentive for the respondent to opt-in to the cheaper and easier small-claim process.
*Timely registration has a technical meaning in the statute.
**Apropos a from a new reader, this does not reject the possibility of prevailing in a claim for actual damages for infringement of an unregistered work, but such claims are highly unlikely to avail themselves of the small claim option.
CORRECTION: As originally published, I stated that parties could still litigate without restriction after the judgment of the Board. This was incorrect.
Hand photo by TanyaRozhnovskaya
© 2017 – 2018, David Newhoff. All rights reserved.