We’ve been talking about the problems of the US government setting up a copyright trolling small claims court for over a decade now. But, Congress finally passed a law to create one (with no debate and no hearings) by sneaking it into a “must-pass” funding bill at the end of the year in 2020. It’s taken a year and a half but the Copyright Office is finally set to launch it sometime next week.
Of course there are two big questions associated with it: um, will anyone actually use it and… is it constitutional? Let’s deal with the bigger question first. In the run up to the law passing, lots of people highlighted the constitutional problems of the bill, mainly in whether or not Congress can create adjudicative bodies outside of the courts. There is a decent history of the courts saying no, and those actually got a boost recently from the 5th Circuit (which, yes, is all kinds of nutty most of the time) in the Jarkesy case which effectively argued that the SEC’s administrative law judges violate the Constitution, as taking away the right to a jury trial via an Article III court. Possibly the Copyright Claims Board (CCB) tries to get around that with its “opt-out” process, but given the way conservative judges seem not just eager, but willing to tear down the administrative state, I can see a pretty clear path to this Supreme Court invalidating the entire CCB.
Again, the way this works is that a copyright registrant (one small difference is that in the CCB you can bring a claim while having just registered, while federal court, as of recently, requires you to have the registration accepted, so the CCB applies to more than just “copyright holder”) can go to the CCB rather than a court, and try to get an alleged infringer to pay up. The cost of filing will be between $40 and $60, and the “small claims” part limits the damages to $30,000 maximum (which can obviously still be a fairly steep bill for someone).
There is an attempt to limit a trolling industry developing here (one of the big concerns about the bill) in that there are some weird, and seemingly arbitrary, limits on filings. Eric Goldman summarizes the filing limits here:
A party, “including a corporate claimant’s parents, subsidiaries, and affiliates,” can initiate up to 30 cases in a 12 month period. A solo lawyer may bring no more than 40 CCB cases in a 12 month period, and a law firm is limited to 80 cases in a 12 month period. Defendant opt-outs still count towards the cap.
And, yes, there is that opt-out system, where, if you are a defendant in such a case, you can opt-out of the system and hope the plaintiff doesn’t escalate things to the actual courts. Though if you miss deadlines, you may be stuck in the CCB process. Goldman notes that these limits may also serve to limit the overall usefulness of the CCB entirely:
The Copyright Office raised the cap for plaintiffs, but my prior question stands: do these numbers make it economically viable for any plaintiff or lawyer to specialize in the idiosyncratic CCB procedures? If not, a copyright owner or law firm may have better economies of scale in consolidating all cases in federal court, where there are no volume caps, more discovery, and bigger potential damages. Also, I still don’t know whether the Copyright Office can limit the number of cases a lawyer can bring, because this implicates clients’ choice of counsel.
Goldman also notes some other concerns — concerns that have been raised for a while now:
- the low filing cost and simplified procedures will invite unmeritorious claims that will prompt defendants to accept low-value settlements rather than fight.
- plaintiffs will use their filing of a CCB claim (or passing the screening test) to scare defendants into accepting unwarranted settlements.
- Dubious service by unsophisticated plaintiffs will lead to bogus default judgments.
Basically, there are all sorts of things that could go wrong here. Or no one might use it. Or someone may challenge the whole mess as unconstitutional. Who the hell knows? Which… is not necessarily a strong argument for regulations. But, either way, we’re about to find out. My guess is that it will get used, will be used somewhat abusively by some — most likely photographers — looking to shake down people who innocently reuse a photo on a website, but won’t be used widely enough for it to justify its existence or the costs to set it all up.
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