Tinkering with Article III

Article III of the United States Constitution creates the Supreme Court and provides the skeletal framework for the federal courts system, which Congress is invited to flesh out.  Section 1338 of Title 28 of the United States Code establishes that the federal district courts are to have “original jurisdiction” over all civil actions arising from the copyright law, and in section 301 the Copyright Act explicitly preempts state laws regarding equivalent rights.

At least some of this structure would need to change if the Copyright Office goes forward with a proposal to create a kind of small claims court system to adjudicate copyright infringement cases.  In 2006 the Copyright office first created a report raising this possibility, and it is currently seeking public comments about the feasibility of suggesting such a move to Congress.

The origin of the suggestion is the concern that it has become so expensive to pursue a claim in the federal courts.  Access to the courts for those of limited means (which of us isn’t?) is an ongoing issue, and the Copyright Office is to be commended for taking on this difficult problem.  But the report on which the public is invited to comment is a very strange document; a model of equivocation and “yes, but” statements.

The most striking thing about the report, which seems to have been a sidebar to the 2006 study of Orphan Works, is how completely it represents the point of view of rights holders and gives scant attention to the concerns of potential defendants and to the public interest.  Photographers especially, it seems, complained that the federal courts were too costly, and the report seems to adopt their arguments wholesale, and then pauses occasionally to note qualifications and objections to those arguments.

The most obvious example of this qualified one-sidedness is found in two paragraphs on the second page.  In the first, the Copyright Office says that it “expresses no definitive view on the extent to which the current system hinders the ability of authors and copyright holders to pursue small infringement claims.”  But it immediately goes to assert that it is “clear” that there are “serious questions about the effectiveness of the current system.”  I have no problem with that at all; it is probably correct.  Where I do have a problem is in the next paragraph, about defendants:

Some have also asserted that the existing system for adjudication of copyright infringement claims can in some cases be too burdensome for defendants who are accused of infringement. While it is not difficult to imagine that a wealthy plaintiff in a copyright infringement suit could make the litigation very costly for a defendant of modest means, the Office is not aware whether this has in fact been a significant problem.

Really?  The Office is not aware of a problem for defendants with the high cost of defending an accusation of infringement?  I wonder where they have been.  Surely the RIAA tactic of sending out “settlement letters” asking for a few thousand dollars from accused file-sharers is premised on the idea that many people will be too frightened or too poor to defend themselves in the federal courts.  And the company Righthaven, which seems to be in its death throes, built a business model on suing small bloggers and the like in the obvious expectation that most of them would not have the means to defend themselves.

In fairness, the Copyright Office report does note what seems to me to be an important argument against a small claims system.  The Copyright Act already has built-in the answer for plaintiffs who are intimidated by costs.  The statutory damages, which are excessively high (up to $150,000 per act of infringement), clearly are intended to help plaintiffs overcome the expense of litigation, especially since they obviate the necessity of proving actual damages.  Also, the Copyright Act explicitly allows the prevailing party to ask the court to assess attorney’s fees and costs to the other side.  While the Office notes that these facts might make a new system unnecessary even for plaintiffs with small claims, it again fails to address the question from the other side, that of the defendant.

If there were a small claims court system (state courts, or an entirely new federal tribunal?), would it be empowered to award the same level of statutory damages?  If so, the system would merely provide potential plaintiffs with a cheaper weapon for intimidating defendants into settling early to avoid a grotesquely large potential loss.  Only if statutory damages were reduced or eliminated at the small claims level, and if potential awards of attorney’s fees were capped, could the system be equitable for both potential plaintiffs and defendants.

Perhaps the most troublesome aspect of implementing a small claims system for copyright infringement suits is the issue of how fair use would be handled.  The artists’ blog linked above raises this question, since small artists are often on both sides of copyright complaints.  Fair use, they note, is very fact specific and depends on both a minute analysis of the particular circumstances and a thorough knowledge of judicial precedent, which is where courts learn how to understand a situation through the prism of the fair use factors.  If copyright infringement claims were heard by a small claims system, it is doubtful that the judges would have the needed expertise, or the resources to obtain it.  My biggest fear out of such a system is that it would be even harder than it now is to convince a tribunal that fair use is a central aspect of the copyright scheme that needs serious consideration and not merely a defense to be examined and dismissed in a cursory fashion (as already happens too often).

I am not convinced that a small claims system for copyright is necessary, but I am not firmly against such a system either.  Most important, it seems to me, is being certain that the judicial structures we put in place do not intensify the chilling effects on socially beneficial uses that are already one of copyright’s biggest problems.

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