Ensuring Only Good Claims Come in Small Packages: A Response to Scholarly Concerns About a Proposed Small Copyright Claims Tribunal

For more than a decade small businesses and individual artists have sought to create an alternate forum in which to enforce copyright claims of modest economic value. The need to address this so called “small copyright claims problem” was first articulated in a submission by the visual arts community to the U. S. Copyright Office (“Copyright Office”) in an unrelated proceeding in 2005. Copyright law is governed by federal law and, by statute, copyright claims can only be brought in federal district courts. The cost and complexity of doing so is often daunting to individuals and small businesses who have suffered infringements of their work. Frequently, individuals and small businesses are seeking relatively modest damages, which are dwarfed by the expense of hiring an attorney and pursuing a claim in federal court. As a result these claims go unaddressed – which leads to the dual misperceptions that creative works are free for the taking on the internet, and that the copyright system serves only large corporate copyright owners. Seeking to rectify this situation, Congress asked the Copyright Office to study “1) the extent to which authors and other copyright owners are effectively prevented from seeking relief from infringements due to constraints in the current system; and 2) furnish specific recommendations, as appropriate, for changes in administrative, regulatory and statutory authority that will improve the adjudication of small copyright claims and thereby enable all copyright owners to more fully realize the promise of exclusive rights enshrined in our Constitution.” After conducting an extensive study, the Copyright Office proposed creating a small claims tribunal within the Copyright Office to adjudicate such claims in order to end the historic inequity in our copyright system. The Copyright Office included in its Report a draft of legislative language. Subsequently, several members of Congress introduced legislation largely based on the Copyright Office’s draft to implement that proposal. While the legislation has not drawn the usual polarized response that much intellectual property legislation seems to attract, nevertheless on February 3, 2017, eighteen professors (hereafter Critics) gathered at the Berkley Center for Law and Technology to discuss their “reservations” about the “profound effects on copyright in the U.S.” enactment of the legislation might have. Because no academic proponents of the proposal or representatives of the Copyright Office or relevant legislative offices appear to have been invited to the Berkeley workshop, this paper responds to the concerns expressed in their summary. I do so as a Clinical Professor and practicing copyright lawyer of more than two decades who for the past several years has devoted her career entirely to representing individuals and small businesses in the arts on a pro bono basis. These experiences have deepened my understanding of the challenges many creators face in obtaining legal representation in all aspects of their work, but in particular with respect to enforcing their copyrights against infringers, due primarily to the exorbitant costs and burdensome nature of litigation in federal court. The inability to enforce infringement claims – especially in the digital marketplace – drives many of these small businesses toward a skeptical view of the value of the copyright system, and therefore to avoid the costs – including in time, opportunity cost, mental energy and financial expense – of registering their works. This drain on the copyright ecosystem harms all users of the Office, but most especially the general public who wish to learn the ownership of works and whose tax dollars are used to fund the operations of the Office via appropriations in far higher amounts than would be necessary if greater numbers of individuals and small businesses found it worthwhile to register their works. Moreover, practitioners who work in clinical settings are likewise often unable to assist with enforcement matters if litigation is required. This is especially so if they are funded through donations and similarly lack the funding to litigate federal lawsuits unless they can partner with outside counsel. This creates a catch-22 situation since the creator has turned to the clinic precisely because he or she cannot find litigation counsel willing to take on the matter. Critics’ comments regarding the small claims proposals fall into three broad categories: First, Critics complain that the legislation raises constitutional concerns under Article III by establishing an alternative dispute resolution forum within an executive agency. These concerns are unfounded because the controlling precedents allow Congress to offer alternatives to Article III courts to parties who voluntarily elect to use them, and the legislation here offers that alternative. Second, Critics raise a variety of civil procedure-type issues – many of which are well considered. Some of these issues are already anticipated by the legislation or addressed in the Copyright Office’s Report. Third, Critics express a variety of opinions on the structure and scope a small claims forum should take, if one were created. Most, if not all of these ideas are repetitive of views already fully considered (and presumably rejected by the Copyright Office and drafters of the pending legislation) in the course of more than a decade of public proceedings on the matter. Therefore it is neither worthwhile nor efficient to re-litigate these matters. Accordingly, after a brief legislative and regulatory overview of the idea of providing an alternative forum to resolve small copyright claims, this paper responds to the Critics’ constitutional arguments, comments on several civil procedure suggestions, and offers a few additional thoughts and examples for the legislative drafters and/or Copyright Office to consider.