Stop Thief
Copyright Needs a Small-Claims Court
By Francis Hamit
The idea of a small-claims court for copyright violations has been getting a little buzz lately. The U.S. Copyright Office mentioned it briefly in a recent report, and it inspired a day of congressional hearings soon afterward. Is such a court a good idea? Could it work?
Yes and yes. Based on my own experience as a plaintiff in two copyright suits — over copyright infringement and violations of copyright management information, both of which were settled in my favor — I know that the current law provides a huge safety zone for big media companies who choose to ignore the law, legal precedents, and the complaints of freelancers like me (see also “Copyright Jungle,” page 42). Unless the freelancer is bold enough to sue.
And suing does require boldness. If you are dependent upon freelance writing for your living, threats, subtle and otherwise, may come your way.
No lawsuit is easy, and copyright is no exception. The only place you can bring a copyright lawsuit is in a federal district court. To do so, you must have registered your copyrights with the U.S. Copyright Office and have them in hand. Many find registration a daunting process. The forms are confusing, there is a $45 fee, and you must register your work within ninety days of publication if you are seeking statutory damages for infringement. There is also a three-year statute of limitations from the date of publication.
Registration is prima facie evidence of your ownership, and media-company lawyers are quick to ask if you have registered your work. If you haven’t, they know they don’t have to worry about you because you can’t sue. But even if you have registered, they know that it would still cost you thousands of dollars to file a suit, and thousands more should you get to trial. They know, too, that your chances of being heard on a small case are extremely unlikely. You must have a $75,000 minimum claim amount to file, and most freelancers have not done enough work for a single publisher to reach that level. That alone argues for some kind of small-claims court.
Most copyright-infringement cases are settled before trial and the settlements are sealed. Yet most of the cases that do go to trial reveal that copyright law is actually very simple. It is about property and money, nothing more. The settlements are arranged and supervised by a federal magistrate judge, whose primary task is to get the case off the docket.
These settlements provide a possible model for a copyright small-claims court. There is either a case or there is not. If there is, then the parties negotiate a settlement. Like other small-claims courts, the one I am advocating needs to be accessible to nonlawyers. Litigants may require paralegal assistance to place the original complaints in proper form, though it may be possible to reduce the complaint to a simple checklist.
In such a court, once the clerk approves a complaint and the defendant is allowed to answer, there would be an informal hearing before a magistrate judge. The purpose of the court would be to allow ordinary citizens a venue to seek redress for easily proved violations of their copyrights. Written contracts would be admitted as evidence. Oral agreements would be given less weight, as they are now. There would be a limit on the amount of damages awarded: perhaps no more than $10,000 on each count for particularly egregious violations and instances of bad faith. The federal courts place great store on the concept of “reasonableness” in such cases, and this would not be the venue for making case law or seeking revenge.
All of this would be in addition to the current system, not a replacement. A working small-claims court for copyright would satisfy the constitutional and property rights inherent in copyright. Its very existence would make big media companies considerably less cavalier about violating copyright law. n
Francis Hamit is a longtime freelance writer. His Civil War novel, The Shenandoah Spy, is being serialized by Amazon.com in its Amazon Shorts section.
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