Copyright Small Claims or Leave It to the Trolls?

The Copyright Office wants round 3 of public comments on whether small claims copyright infringement procedures are possible. This has been limping along for years, and they’re still asking “whether and, if so, how the current legal system hinders or prevents copyright owners from pursuing claims that have a relatively small economic value…” Hard to take that question seriously today, and the complexity of 17 specific areas of comment issues all but guarantees that people who most need small claims will be afraid to speak up.

Take recorded music. Billboard reported 75,000 albums were released in 2010. Eighty percent, 60,000 titles, sold 100 copies or less, 0.7% of total sales that year. Is there a question whether most people who created those albums can afford a lawyer to file a copyright infringement lawsuit in federal court? Tiny sales do not equal worthless music, and plenty of great music can’t penetrate the online chaos of so many releases.

The first comment request issue is whether small claims should be voluntary or mandatory. Aside from logical arguments by good lawyers that complicate the issue, it seems clear that small claims will fail sooner or later if defendants can opt out and force everything into standard federal court litigation.

Once there is enough online advice on what to do if a copyright owner files a small claims action against you, few defendants would hesitate to throw plaintiffs into the process they tried to avoid in the first place. Most federal courts have pro se officers and helpful information for people who try to represent themselves. If a copyright small claim is thrown into federal court, the officers would either need to advise both sides or be de facto mediators.

Question two asks if some kinds of copyrighted works should be excluded from small claims. Major music industry organizations want musical works and sound recordings excluded. See example above. The people who want to keep music copyright disputes only in federal court will be the ones with most of the 99.3% of sales in 2010. What about everybody else?

Question four is a series of involved issues on injunctions. The legal relevance of the question is easy to understand. Issuing injunctions is complicated. But most independent artists and authors need money, and that’s the remedy they want. If they have a simple procedure, a quick damages award, and a chance to collect, injunctions would be of little concern. Getting money from a defendant is a kind of injunction anyway because it discourages continued infringement. Want more small claims complaints?

Question six asks if attorneys should be included or excluded. Experience teaches that lawyers need to be excluded if small claims is going to stay small. Yes, independent copyright owners will have to learn enough on their own to feel confident about filing a claim. And defendants need to be able to learn enough to defend themselves. But you have to believe it can be done because it already happens in small claims courts across the country.

In Indiana Small Claims courts, the clerks assist people to file their claims. The best protector of defendant’s rights is a good judge who explains things and asks the right questions at trial. Trial must be “informal, with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law” and not be bound by formal and complicated rules non-lawyers cannot master.  Indiana Small Claims Rule 8. Let the lawyers do the copyright litigation with bigger stakes or complex issues of importance to their clients.

The request for comment and the baker’s dozen of  other questions are at Responses are easy to submit and are due by April 12. Organized and wealthy players in the exploitation of copyrighted works will continue to dominate the process. They are not advocates for independent creators with limited means.

Without copyright small claims, independents’ only place to turn will too often continue to be groups that acquire rights to sue alleged infringers who are lumped under the unflattering term “trolls.” The label is applied because they are thought to exist to generate large returns for lawyers, not creators.

Major players ought to be motivated to support good small claims procedures because they don’t much like trolls. That doesn’t seem to be what is happening. So maybe the only chance is inside the Copyright Office staff. But I like to think Mr. Smith Goes to Washington moments happen. Please take a shot. A powerful comment from anyone can make a difference.

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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