The third and final request for comments
ends on April 12, 2013.
In written comments
to the Copyright Office and at an hearing at UCLA in November, California Lawyers for the Arts supported the concept of special procedures for adjudicating small claim copyright disputes as an access to justice issue. Copyright issues are exclusively a matter of federal jurisdiction, but taking a case to federal court, with its arcane local rules and discovery procedures, can be expensive and time consuming. A survey
by the American Bar Association showed that the average cost of a copyright infringement lawsuit in Los Angeles through the end of discovery, was $292,000; the average cost through the end of trial and appeal was $517,000. Unless actual damages are truly substantial, the copyright holder will be without an effective remedy in federal court.
Copyright litigation is also a hazardous business. If an infringed work has not been registered with the Copyright Office within three months of original publication or before the alleged infringement, whichever is later, the copyright holder will be out-of-pocket for attorneys' fees and costs. And the promise of attorneys' fees if the copyright holder (and alleged victim) registered the work prior to infringement is still a risk. A losing plaintiff may have to pay the attorneys' fees of the defendant. Furthermore, if the copyright holder fails to accept a federal "Rule 68" settlement offer that proves to be equal or greater than the amount of the judgment, the copyright holder will be responsible for litigation costs, which, as noted above, can be quite expensive. A small claims process could well serve to provide a forum for legitimate claims that avoids these financial hazards.
Many interesting procedural questions are being teased out by the legal policy staff at the Copyright Office: the amount in controversy (suggestions ranged from a maximum of $10,000 to $50,000), whether parties can be represented by attorneys, should the process be mandatory or voluntary, who will make the decisions, can they be appealed and if so, to what body? Should there be filing fees? How much discovery should be allowed? Should there be injunctive relief, which allows the claimant to stop an alleged infringement? Stripping the process of costly motions and discovery, how would evidence be presented?
What kinds of work should be included? At hearings in New York and Los Angeles, representatives of some music publishers argued for an exception for music, stating that their own agreements with artists provide for adequate enforcement of copyright claims. Along with Parliament Funkadelic singer-songwriter George Clinton
, who participated in the Los Angeles hearing, I argued for including music along with all the other artistic genres.
CLA and many others, mindful of the need to reduce travel time and expense, envisioned a national court with telephone or video appearances and electronic document submission. Such a national small claims court would also eliminate the possibility of local rules and procedures sprouting up in federal courthouses around the country.
Whether parties can be represented by attorneys in the proposed small claims court is a thorny issue. While state courts vary on this question, attorney representation is not allowed during small claims court proceedings in California. In any case, I recommended putting in place a system of legal advisors who could help claimants evaluate their cases and prepare for trial. This has worked well for small claims court claimants in California. In the meantime, at CLA, our statewide attorney panel helps evaluate any potential litigation, including small claims, with fees based on three income tiers--pro bono, modest means or regular.
Citing CLA's experience with alternative dispute resolution since 1980, I argued for establishing a robust alternative dispute resolution (ADR) program that potential claimants would learn about before initiating litigation, perhaps through a small claims adviser. With participants in many locations, and even abroad, CLA's Arts Arbitration and Mediation Services
has administered many mediations and arbitrations by telephone. In January, with the participation of U.S. District Court Judge Thelton Henderson
and Howard Herman, the director of the court's highly regarded ADR
program, we presented a mediation training for intellectual property attorneys who are interested in serving as neutrals, regardless of the outcome of the small claims proposal for copyright disputes.
So, when are the proposed small claims procedures likely to be implemented?
This discussion was initiated by a representative of a photographers' organization in 2006 when the Copyright Office was investigating the issue of orphan works
. The House Judiciary Committee subsequently asked the Copyright Office to submit a report on small claims issues and possible solutions by September, 2013. There have been two comment periods and two public hearings, and the Copyright Office has issued one final request for comments
. At the hearing in Los Angeles, we learned that the US Patent and Trademark Office is beginning its own investigation into the feasibility of small claims procedures for patent and trademark disputes.