One Small Step for Copyright Small Claims

The Copyright Office heard the stories of frustration from creators who can’t enforce their copyrights. Yesterday it released a report on its two year study and proposed a kind of small claims arbitration panel within the Office itself. Since there is no perfect solution, the smartest thing to do now is give it a chance and see if it works.

The announcement highlights five points. The first is the hardest, Congress must create a tribunal which would have three members. It would be a voluntary alternative to federal court and could award a maximum of $30,000 in either actual or statutory damages. The latter are capped at $15,000 per work. If alleged infringers consent to participate after receiving a claim notice, they can assert all the usual copyright defenses and file limited counterclaims.

Unlike UDRP private arbitrations, hearings are allowed through telecommunications. Discovery would be limited and no formal motions allowed. If the case can’t be fairly decided in the small claims setting, the panel can dismiss the case without prejudice. Its decisions will bind the parties, but they won’t become precedents. Limited administrative review of decisions will be available. Enforcement of decisions can be through federal district court which can also hear fraud and misconduct challenges.

Experiments often become permanent solutions hard to change when their flaws are exposed. This reform effort could harden into a mistake calling for more reform. Meanwhile, if you create records, photographs, stories, poems, videos etc. but can’t afford to pay the cost of enforcement when your works are stolen, you don’t need more proof that the system doesn’t work for you today.

The proposal has weight because it comes from the Copyright Office. The only alternative for many independent creators is to turn their works over to copyright collections that can afford to enforce rights. Some are copyright trolls with business models that are not public. Whether authors do any better than the people the trolls go after is a question that may only be answered if there is an investigation like the one of patent trolls the FTC just announced.

Meanwhile, if you want to read the Copyright Office’s complete report at its website, you’ll get this:

Notice

The U.S. Copyright Office is closed, and http://www.copyright.gov is not available due to the federal government shutdown effective 12:01 am ET, Tuesday, October 1, 2013. The Public Information Office and the Technical Support Desk of the Copyright Office are also closed.

If you would like to file a copyright registration online, select the Continue to eCO button below. Filing your claim now will help ensure the earliest possible effective date of registration, although copyright registrations will not be processed until the Copyright Office reopens.

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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