Tag: small claims

Maybe Don’t Talk About Your CCB Claim on Social Media

The copyright small-claim alternative, adjudicated by the Copyright Claims Board (CCB), was intentionally designed to accommodate pro se participants, meaning that both claimants and respondents can represent themselves without hiring attorneys. After all, the foundation of small claims court or alternative dispute resolution is to save money. And indeed, we are seeing some early pro se claimants file complaints with the CCB, which began accepting claims on June 16th.

It occurred to me while co-moderating a copyright page on Facebook because, of course, social media encourages a habit of saying or asking everything that comes to mind. But one aspect of legal training the copyright owner/claimants, or for that matter defendants, likely do not have is the discipline to keep mum about an active case. Or at least what should and should not be discussed publicly.

Asking questions or making statements about administrative procedures related to the CCB are safe topics to discuss in public, but parties to a case should remember that it is a legal proceeding with a discovery process. That means anything you say about the facts pertaining to the case itself—including intentions, timelines, beliefs, etc.—may be discoverable and may be entered into evidence by the opposing party. And announcing, griping, gloating, or just describing these matters on social media makes discovery very easy for the opposing party.

This is not to suggest that either claimants or respondents are going to lie or have much to hide of any relevance to a typical CCB case. But if you are a party on either side, it is just good practice to do what an attorney would tell you to do and simply not talk about the case publicly until it’s resolved.

Keeping this discipline could prove difficult for some. Both alleged infringers and anti-copyright ideologues are known to at least insult, if not harass, copyright owners looking to enforce their rights. “Greedy” may be the kindest thing someone calls you, but don’t take the bait, don’t feed the troll, and don’t talk about your case until it’s over. By the same token, if you’re the claimant and you’ve filed a CCB claim, it’s probably not a good idea to also engage in that odd form of digital-age justice generally called “shaming.”

The copyright antagonists want to see the CCB fail. As copyright owners and advocates, we want the small-claim alternative to work, and work in a serious and fair manner grounded in the merits of claims and defenses. As such, both for your own sake and the overall effectiveness of a brand-new system, if you are party to a claim, it’s a good idea to exercise some social media discipline and keep most of the conversation about your case to yourself.

The Copyright Claims Board is Open for Service. Now We Wait.

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The small claim tribunal, the Copyright Claims Board, opened its virtual doors yesterday, and by EOD, about a dozen claims were on the docket. A glance at the named defendants reveals a list of commercial users who allegedly infringed protected works, which is no surprise and probably good news.

I say it’s no surprise because, despite the fearmongering about aggressive claims filed against grandmothers everywhere, most copyright owners know that the infringements that matter most tend to be made by commercial users who should know better. And the reason I say that it’s probably good news is that business entity respondents will an important test to see who opts out of participating in the small claim resolution.

It is no secret that the potential flaw with the small-claim alternative is the opt-out provision. Upon receipt of notice that a claim has been filed, the respondent has sixty days to opt out of the proceeding, at which point, the claimant may decide whether to file her complaint in federal court. The opt-out provision was necessary to enact the small claim into law because as a form of alternative dispute resolution, it cannot violate the constitutional rights of respondents to defend themselves in court.

The hope is that enough respondents, perhaps especially commercial entities, will see that federal litigation is a real possibility and that even losing a case at the CCB will be less costly than engaging counsel to draft a defense for a traditional lawsuit. This is a realistic expectation. In simple terms, the idea to create the small claim option was a typical scenario in which a party should have licensed a work (e.g., a photo for $1,000), and the copyright owner expects perhaps $5,000 or less in damages from the alleged infringer.

Those numbers barely cover the cost of a federal claim, which is why independent and small creators fought for over a decade to incorporate a small claim option into the Copyright Act. But respondents can do math, too, and the CCB may fosters quite a few settlements, which is generally what everyone wants. Or perhaps, just maybe, if the CCB is effective enough, users of creative works will get out of the habit of simply grabbing material off the Internet and remember that they’re supposed to pay for it.

From the time the CASE Act was introduced in committee until the day it was signed into law, and beyond, the copyright haters have portrayed the CCB as a body for rubber-stamping $30,000 fines for memes—especially if Grandma shares them. And while it may be foolhardy to make predictions this early, I suspect the copyright haters may be sorely disappointed to see that the majority of CCB claims and resolutions will be mundane. Just freelance workers trying to get paid.

It would hardly be the first time that peanut gallery predicted disaster without cause. But we shall see what comes.

FULL DISCLOSURE

I am now the co-founder of a new venture called RightsClick, a software suite designed to help independent creators manage their copyright portfolios and to take certain DIY enforcement actions. Very soon, the suite will include a CCB tool to facilitate filing and managing a claim. I do not intend to stop writing this blog, and I will make every effort (as I am right now) to be clear whenever a post implicates the interests of RightsClick.

Copyright Small Claims: A Solution for Many Creators

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.
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*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