by FMC Legal Intern Michelle Davis

What can you do when someone makes unauthorized use of your creative work?

In the past, we’ve seen the RIAA and the major labels go after alleged pirates and large-scale copyright infringers with some frequency—they have the money and the man-power to dedicate to litigation. But if you’re an unsigned solo artist, or a photographer or an author, the cost of taking someone to court, regardless of how flagrant the infraction, can often be prohibitive.

This was the concern brought to the U.S. Copyright Office by House Judiciary Committee Chairman Lamar Smith (R-TX) in 2011. He requested a study to assess “the extent to which authors and other copyright owners are effectively prevented from seeking relief from infringements” and for the Copyright Office to offer up their recommendations on how to fix the problem.

The Copyright Office released the results of that study on Monday, Sept. 30.  Unsurprisingly, the study, which included four days of public hearings in New York and Los Angeles in addition to written comments from a wide range of rightsholders, concluded that modest-sized copyright claims paired with costly adjudication often meant that currently copyright laws were “virtually unenforceable” for individual creators.

The report thus recommends that Congress create a centralized tribunal within the Copyright Office to handle these sort of small claims copyright disputes (a $30,000 cap on damages limits their scope).

The tribunal would serve as a voluntary and, presumptively, more affordable alternative to federal court trials. For one, personal appearances would not be required at the tribunal, which eliminates travel expenses. Instead, the proceedings would be administered either online or via teleconferencing. On the other end of the line hearing the case would be three adjudicators: two with significant copyright law experience and a third with a background in alternative dispute resolution.

In order to avail themselves of the tribunal, copyright owners would be required to register their works in advance, so if Congress gives this tribunal the OK, rightsholders need to register as soon as possible—before there’s trouble. Once a claim is initiated, the other side would have the opportunity to agree to the process or to opt-out. The alleged infringers would also be able to use any of the defenses they would use in court—fair use, DMCA-related safe harbor protections, etc.

At the end of the process, the tribunal would hand down a final verdict, but it is only binding with respect to the parties and would have no precedential effect. Unlike court cases that often drag on indefinitely due to discovery, motions, challenges and appeals, the tribunal process would be streamlined, with tighter deadlines, no formal motion practice, and limitations on administrative review. The claimant could also file the final determination with the federal court to ensure its enforceability.

What do you think about the small claims tribunal for copyright owners? Is this a system that you would use to settle infringement disputes?