Proposed Copyright Small Claims Court May Have A Bigger Impact Than The DMCA

from the watch-out-for-it dept

It’s not surprising that a year-old proceeding launched by the U.S. Copyright Office, toying with the idea of creating a copyright-focused small claims court, has gone largely unnoticed. Private meetings in Dubai about the future of the internet, and copyright proposals in Germany that could change the way search engines work have been vying for people’s attention around the same time.

However, about a week ago, a small number of rights holders organizations, attorneys, and artists were invited by the Copyright Office for panels at Columbia & UCLA’s law schools to debate the details of what a copyright small claims court should look like.

Here’s some context about why these details are so important: if some of the more short-sighted special interests monopolize how these proceedings go, it could lead to a situation worse than bogus DMCA takedowns. Right now, internet users have to worry about abuses of the DMCA that lead to content takedowns; imagine adding to that a situation where it’s even easier to have them bullied and brought into a real courtroom.

If this court is shaped without your input, we could be faced with a situation where it makes economic sense for media companies to sue many more average internet users over the photos they post on Facebook and Tumblr. The tens of thousands of Bittorrent filesharing lawsuits over the last two years might pale in comparison.

Even though it’s a ways off from completion, a small claims system for copyright would have a bigger impact on the day-to-day of copyright law than any “reform” to copyright since the DMCA in the late 1990’s, so we should pay attention.

Who wants a small claims copyright system, and why?

Some rightsholders say formal copyright lawsuits in the current system are too expensive. Evidence from the ABA IP law section shows that federal copyright trials are expensive (pdf), with cases where less than $1 million is at issue costing an average of over $200,000 in legal fees before trial, and nearly $350,000 once they’ve gone through to an appeal.

So the argument from some rightsholders is that it simply isn’t practical to bring legitimate smaller disputes. This argument says that while attorneys fees and costs are available if you’ve registered your work, many smaller disputes involve unregistered works and fees and costs are unavailable..

The ABA’s comments tried to give a sense of where the line is for attorneys to actually bring a federal lawsuit.

Approximately one-third of the respondents would turn away a copyright case where the likely recovery would be less than $60,000. But about two-thirds of the respondents would accept an uncomplicated case with a likely recovery of less than $60,000. Only about one-third of respondents would accept an uncomplicated case with a likely recovery of less than $30,000.

In short, some rightsholders want a new forum to bring suits against small-scale defendants.

What is the practical impact of a small claims copyright court?

The organization I direct, New Media Rights, provides one-to-one legal services to all kinds of folks who would end up being both defendants and plaintiffs in the new system. Why we’re participating so extensively is because we’re in a unique position: we’re (1) a user-oriented organization (for example, defending innocent internet-users who are wrongly implicated in filesharing cases). BUT we’re also an organization for (2) independent creators: the type of people who make their livelihood by sharing their creativity online.

We see a lot of the bullying and trolling that takes place in the informal copyright system, where overreaching DMCA takedown notices and cease and desist letters are common. As many people reading this may know, bogus copyright claims are regularly misused to takedown otherwise legal content.

So we have to balance the need of independent creative people to get “justice” for their works being wholly misappropriated by bad actors, while keeping life sane for average internet users. These are some of the details that I shared with the Copyright Office to balance those interests…

How to keep a new small claims system fair?

1. Defendants need to have access to all defenses normally available to them including the fair use and DMCA safe harbor defenses. At least one misplaced comment suggested getting rid of the DMCA safe harbor all together and raising statutory damages to $650,000 (from $150,000).

2. Any small claims system will need to address current misuse of copyright law. Threats of lawsuits and settlement demands from copyright trolls are a big problem. Currently, because this abuse takes place outside the formal court system, there are few consequences for the troll. Our suggestions highlight the need to keep trolls out while allowing legitimate cases to go forward.

3. Defendants have to have adequate legal representation. Plaintiffs will have had months to prepare a complaint and consult attorneys. A small-scale defendant will have limited time and resources to figure out how to defend themselves. Small defendants without adequate representation shouldn’t simply get steamrolled or coerced into settlements by overreaching copyright owners (example: The mass filesharing lawsuits of the last two years).

Self-help systems like FLASH in Northern California, and legal assistance projects like New Media Rights in San Diego, provide help for these types of people. BUT as the Executive Director of New Media Rights, I can tell you that we don’t have even 1% of the capacity to deal with and correct all of the misuses of copyright law that we see.

4. Defendants need to have access to fees and costs. Under section 505 of the Copyright Act, a court is permitted to award fees and costs to the prevailing party. Despite the Supreme Court’s finding in the early 1990’s in the Fogerty case that the standard is the same for plaintiffs and defendants, plaintiffs regularly get fees simply by registering while defendants have to show the plaintiff’s lawsuit was in bad faith and frivolous. The result is a disincentive for defendants to challenge copyright holders, and an incentive for innocent defendants to settle. This is because even if a defendant wins in federal court, they will still likely have to pick up the tab for attorneys fees.

Why this is important and what you can do

Even though the small copyright claims discussion is speculative, making it difficult to simply be for or against it, it definitely isn’t a discussion that should be ignored.

Internet users need to stay involved with the proceeding and make sure the new system is something more than a new venue for porn companies to coerce settlements out of internet subscribers. For now, the best thing we can do as internet users is raise awareness and be involved, so that by the time a full proposal is on the table at the Copyright Office, it includes safeguards that will make sure the new court provides a fair playing field.

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Comments on “Proposed Copyright Small Claims Court May Have A Bigger Impact Than The DMCA”

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Atkray (profile) says:

The issues raised in the article are all valid.

I don’t see adding litigation as a solution. This just moves us one step closer to everyone being a criminal.

I believe that the unwillingness of maximalists to give and bend will result in a backlash that ends up with copyright being eliminated.

Unless the maximalists get a sudden dose of reason and start to look at solutions that don’t make everyone a criminal they are doomed.

Anonymous Coward says:

Re: Re: Is this what we need right now?

They want to eliminate our rights… create a slave class system.

The Graphic Artists Guild responded to the Copyright Office’s Second Notice of Inquiry with an interesting view on defendant’s rights. The Guild wants plaintiffs to have the option to waive the rights of defendants.

2. Voluntary Versus Mandatory Participation.

We would like to see the rights holder/plaintiff have the option to choose ACC or federal district court; however the infringer/defendant must comply with the rights holder’s choice of court system.?.?.?.

By agreeing to participate in ACC, both plaintiff and defendant would agree to waive their Seventh Amendment right to a jury trial.

The Guild does not attempt to explain how a defendant forced to ?comply with the rights holder’s choice of court system? voluntarily agrees ?to waive their Seventh Amendment right?.


The Guild goes on with another interesting view on the proper role of attorneys in their system.

15. Representation.

We’d like the ACC to function as a “People’s Court.” We want plaintiffs to be able to start with attorneys behind the scenes if they wish, but not be represented by attorneys in court.?.?.?.

Of course, some large corporations have attorneys on staff who would prepare the case,?.?.?. However, attorneys should not be allowed to appear in the tribunal on behalf of parties?.?.?.?.

Well maybe that looks fair after all: the rules on representation are facially even-handed ? theoretically applying equally to both plaintiffs and defendants.

Mesonoxian Eve (profile) says:

The moment I saw “small claims courts” and US Copyright Office appear in the same line, I stopped reading.

I’m sure there are issues and proposals in the write-up, but the single phrase is a conflict of interest. The office should be doing more to correct the problems of its own reason for existence, yet this is clearly just another example of side-stepping them and throw up a more (troubling) band-aid to the problem.

The fact the 1976 changes to the law to grant copyright upon inclusion into the public domain was the biggest mistake ever made.

Go back to forcing people to register their work (which comes with a hefty fee itself) or tell them to shut the hell up and stop trying to game the public into broadening this ridiculous welfare system.

Change the law, and people will follow it if they respect it.

People will not respect this idea, if it’s turned into law.

Greevar (profile) says:

Re: Re:

I’ll let you in on a little secret. Every single law we have on the books is a band-aid solution to every problem we lack the technology to solve. Unfortunately, some people get addicted to the power these laws give them (i.e. copyright) and don’t want to let go when the technology (internet) solves the problem (dissemination of ideas) they were meant to apply to.

Anonymous Coward says:

“comment suggested getting rid of the DMCA safe harbor all together and raising statutory damages to $650,000 (from $150,000).”

There is a reason they are called small claims courts. In a quick search I found that a majority of the US states limit the maximum amount to the four figure range – not six. There are several states which allow suits asking for amounts in the range of five figures. In addition, these courts are governed at the state level, will there be a 50 pronged effort to get the states on board or is this an attempt at another federal level court system? The whole thing smells like a fishing expedition and they want to use dynamite.

Anonymous Coward says:

Re: Re:

…will there be a 50 pronged effort to get the states on board or is this an attempt at another federal level court system?

The Federal government has preempted the field of copyright. In short words, ?preemption? means the states have no business there.

I rather suspect this ?copyright small claims? court will be along the lines of Judge Judy.

out_of_the_blue says:

Heh, heh. Pirates don't want any legal process at all!

You’re on the verge of getting a more proportional low-level “court” that isn’t “a federal case”, but I suspect you’re just not going to be happy so long as those pesky creators (you know, the ones who front the money and actually do the work) keep refusing to see how your downloading for free is actually helping them!

Law is evolving in this area: the dinosaaurs are beginning to march and stamp out you little pirates with their big blunt feet. — While all of Marauding Mike’s notions are based on dinosaurs just sitting there and law being static. Though, just because it became easy to rip content, then upload and download it to “share” out to absolutely everyone, hasn’t changed the principles of who owns content by reason of created it.

The internet is a two-way process, ya know, not all FREE for the taking: just pay for the content you want. If that causes you to consume less crap, you’re better off.

Laying Pipe says:

Re: Heh, heh. Pirates don't want any legal process at all!

Well Dinosaur, meet the internet, your astroid that will force you to extintion unless you are willing to change. Those of us that have adapted will live, you will be oil to fuel our machines and we will continue on.

We are Legion,
We never forget,
We never forgive,
We are watching.

Greevar (profile) says:

Re: Heh, heh. Pirates don't want any legal process at all!

This “proportional” court is nothing but a tool to lower the costs involved to discover the identities of alleged infringers and send letters to shake them down for settlements, regardless of their guilt or innocence. It doesn’t help the common person at all, it only helps big corporations extort money from grannies, dogs, printers, and 9 year old girls.

The laws are falling behind and loosing face with the public. The more they stomp their feet and make noise trying to garner more favor from the government, the less the public respects them and their paid-for laws. At this rate, unless you’re relying on the status quo, you likely think it’s all a pretty pathetic.

The internet isn’t a two-way process (and in your mind that means content out, money in, but that’s not two-way). It’s a one-to-many process. Everyone is connected to everyone else. It’s an ecosystem where everyone produces content, shares it, transforms it, and then republishes it to be shared all over again. That process repeats over many times and it proceeds much like evolution.

Anonymous Coward says:

Re: Re: Re: Re:

Why do you think no evidence would be needed?

Well, the original article states:

…many smaller disputes involve unregistered works…

I read that as angling for a suspension of the 17 U.S.C. ? 411 registration requirement:

…no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

Now, in context, it could just be that the proponents merely want to get rid of ? 412.

Anonymous Coward says:

Re: Re: Re: Re:

1) track IP addresses connecting to torrent
2) get court to force ISP to reveal street address of IP addr
3) send threat letter with offer to settle out of court
4) drop suit if mark gets lawyer
5) profit

And this so called small claims court will make this cash cow all that much more streamlined – and they do not have to prove anything. They could simply pull shit out of a phone book and I doubt the DA would stop it.

Ed C. says:

The expense of copyright

Evidence from the ABA IP law section shows that federal copyright trials are expensive (pdf), with cases where less than $1 million is at issue costing an average of over $200,000 in legal fees before trial, and nearly $350,000 once they’ve gone through to an appeal.

Now it’s starting to make sense. The MAFIAA rejects reduced damages because the lawyers know they aren’t getting a dime from the media bosses for their their expenses. That’s just not how they roll. They want everyone else to do all of the work and take on all of the expenses.

Anonymous Coward says:

This will quietly be spun as a “small court system that’s streamlined” to the unsuspecting public, but there will be nothing small about it. It will, however, be streamlined to remove money from your bank account as fast as possible. Because the Federal government has exclusive domain over copyright law it will still be a Federal court, the states will have absolutely nothing to do with this. And because it’s still a Federal court, they can sneak in the statutory penalty of $150,000 per infringement with no pushback at all.

Rekrul says:

I think this is a bad idea over-all, however IF it goes ahead, there’s one rule I want to see become part of it;

The copyright companies always claim that their evidence is rock-solid and can absolutely identify the guilty party. If they take someone to court and that person is found not guilty, not only should they have to pay the attorney’s fees, but they should also have to pay the same amount to the defendant as they were seeking.

Let’s say that they’re seeking $300,000 in damages. They lose the case, they have to pay the defendant $300,000, plus attorney’s fees.

If they’re so sure of their evidence, let’s see them put their money where their mouth is.

Oh wait, I forgot that this is a totally one sided system being devised to make it as cheap and easy as possible to extort money from people. It’s not so much a court as getting the government to be their legal muscle.

Anonymous Coward says:

If that many people are doing it...

We don’t need a special Court…

Oh, c’mon. Look at the great job the Court of Appeals for the Federal Circuit (CAFC) has done on patent law.

… we need to change the laws to eliminate the cases.

A special court, with Article I judges, might be just the ticket to get rid of Feltner v Columbia Pictures Television (1998).

Anonymous Coward says:

Re: Nasty Thought

Yes, by all means, this would be double plus good – this new court system would force payment for the infringement of copyright by those dirty nasty pirates who have the audacity to include the audio of song birds in their recordings of nature. How are the rightful owners of the copyright on nature supposed to create new works if they are not properly remunerated?

Anonymous Coward says:

Re: Nasty Thought

especially if the process could be automated.

Automation is being considered.

In their comments submitted to the U.S. Copyright Office, two authors, Fritjof Haft, Professor of Law and Legal Informatics at EBS Law School in Wiesbaden, Germany, and Robert Kunstadt, Managing Attorney of the law firm R. Kunstadt, P.C., propose an automated procedure.

In their summary, they recommmend ?a two-pronged approach?:

The first prong is to institute special procedural rules to expedite such cases. The procedural rules must be designed so that the desired effect is achieved automatically, by “social engineering”.?.?.?. A set of such rules for efficiently handling small business disputes has already been proposed by co-author Kunstadt, and they were published under the title “Half-hour Trials, as on TV” in the National Law Journal of March 13, 2000, p. A22. They may readily be implemented for the handling of small copyright cases.

The second necessary prong is use of computer-automation to facilitate the preparation and disposition of small copyright cases by easing the workflow for parties and judges.?.?.?.

The two authors go on to flesh out their rules for ?Simple Justice?, including, among other points:

? The hearing lasts no longer than one day.
? A final, non-appealable decision issues immediately at the end of the hearing.
? Proceedings and rulings are private and confidential

I’m not quite sure how “Half-hour Trials, as on TV” is quite reconciliable with a secret tribunal (?Proceedings and rulings are private and confidential?). But perhaps American ingenuity could improve upon this proposal. If the proceedings are only shown on closed-circuit television, they won’t have enough audience share to be advertising-supported. Maybe a video-on-demand solution?

Anonymous Coward says:

Re: Re: Nasty Thought

“A final, non-appealable decision”

– Is this a court of law or forced binding arbitration?

“Proceedings and rulings are private and confidential”

– Meaning a gag order. What are the possible penalties for divulging details of the proceedings?

This sounds like a really bad idea … and it is certain to violate many rights of the accused no matter which country they reside in.

Anonymous Coward says:

Re: Re: Re:2 Nasty Thought

In an Article III court the defendant is allowed council and trial by jury, both of which seem to be missing in this bizarro court room dreamed up by the ne’er-do-well of the copyright world.

What is even more warped in their nightmare world is that the plaintiff can force the defendant into such a kangaroo court with the governments blessing. Bunch of sickos.

Anonymous Coward says:


At least one misplaced comment suggested getting rid of the DMCA safe harbor all together and raising statutory damages to $650,000 (from $150,000).

That would be Gear Publishing Company’s response to the Second Notice of Inquiry. They recommend the $650,000 increase on p.2 of their submission. In that submission, they also tell us (p.1):


Gear Publishing Company (?Gear?) is a privately held company established in 1965. Gear has been recording artist Bob Seger?s exclusive publisher since 1966.

We don’t want to let Bob Seger?s exclusive publisher get too misplaced now, do we?

Anonymous Coward says:

Re: Correction

An award of costs does not require registration.

Which explains why, in response to the First Notice of Inquiry, the American Society Of Media Photographers (ASMP) commented:

Copyright Registration

To begin at the beginning, one of the impediments to professional photographers? access to the current copyright enforcement system is the requirement of copyright registration before litigation can be instituted…. Accordingly, a claim could be filed under the ?new? system even without registration.

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