The Time For A Copyright Small Claims Court Is Now

1While major stars like Robin Thicke and Zeppelin can afford to combat massive lawsuits, the average artist may have a tough time footing the bill for a bitter and protracted court battle. This could change however, should a recently introduced  small claims alternative bill end up passing into law.

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Guest post from the Future Of Music Coalition

When legal battles about copyright infringement make the news, they tend to concern big stars. big hits, and big dollar amounts, from Robin Thicke vs. Marvin Gaye’s estate, to Led Zeppelin’s successful defense of their authorship of ”Stairway to Heaven.” 

But what about the rest of us? It’s a simple truth that, in the United States, filing a lawsuit for copyright infringement is expensive. Even just sending an initial letter can cost thousands of dollars and a case with a quick settlement can still cost over $10,000.

Those charges rise quickly when a case takes years to wind through the courts. When photographer Daniel Morel won a $1.2 judgment after a 5-year legal battle against AFP and Getty Images, his law firm had racked up some $2.5 million in legal costs. However, even though the jury had found AFPand Getty had willfully violated his copyright, the court refused to grant him attorneys fees. This left the law firm that worked with Morel with little hope of collecting on the more than 3,800 hours of work they had put into the case.

This is bad news for both plaintiffs, who often can’t afford to file a lawsuit at all, as well as defendants, who are regularly targeted for hefty damages to justify the expenses.  For many musicians and composers, this all means that legal recourse, even in clear cases of copyright infringement, may be out of reach.

1 (1)However, a new bill submitted by Representative Hakeem Jeffries (D-NY) hopes to at least ease some of those costs. Dubbed the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2016, it seeks to create a small claims court for copyright disputes.

The idea is fairly straightforward and largely follows recommendations made by the U.S. Copyright Office in its reports on the subject. If enacted, the proposed bill would create a Copyright Claims Board that would be a part of the U.S. Copyright Office. There would be five members of the board including three Copyright Claims Officers appointed by the LIbrarian of Congress and two Copyright Claims Attorneys appointed by the Register of Copyrights.

Claims brought before this board would have a statutory damages cap of $15,000 and there would be no attorneys fees awarded, meaning both sides would have to bear their own costs. However, since the process doesn’t require an attorney, those costs should be much lower.

The biggest caveat to the system is that it is completely voluntary. A defendant, once served notice that a case is pending before the board, could simply opt out of the procedure and force the plaintiff to file a lawsuit in federal court.  The reason for this is the constitutional right of defendants to a jury trial. While the act can not take that right away and force defendants to participate, the hope is that the lack of attorneys fees and the lower statutory damages might motivate defendants, especially those with weaker defenses, to agree to participate in the process. Still, there’s little to stop defendants from refusing to participate in the process, especially if they believe the plaintiff is unwilling or unable to sue in federal court. But despite that limitation, the act still aims to solve one of the biggest and most vexing problems in copyright: how to quickly and cheaply deal with small infringements.

As a result, the act already has endorsements from a wide variety of organizations including The Authors Guild, The American Society of Media Photographers and The Songwriters Guild of AmericaFMC joins these groups in supporting a small-claims court solution. While not a silver-bullet, it would amount to a significant step forward towards copyright law that works for all creators, not just those with deep pockets.

The truth is that under the existing system, most copyright infringements are simply not practical to pursue in court. The costs and risks often outweigh or preclude any benefit. However, a properly calibrated copyright small claims court can make it possible to pursue more claims. Just as importantly, the proposed bill also contains important protections for due process, and will help discourage false claims of infringement and settle conflicts much more efficiently.

Though this will benefit creators of many mediums, independent musicians and independent labels may be among those who benefit the most. With widespread infringements and limited resources to spend combatting them, these smaller-scale creators may finally be able to use this court not only to stop ongoing infringements, but receive damages from them.

The bill is currently before the House Judiciary Committee, which for the past several years has undertaken a comprehensive review of the Copyright Act.  As always, we’ll keep you posted about any progress.