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.
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.