Because federal court litigation is very costly, many small claims for copyright infringement do not currently get litigated. Authors and artists, in effect, have legal rights, but not legal remedies when others trespass on those rights. Responding to a sense of unfairness of this situation, Congress has been considering legislation to establish a small claims tribunal within the U.S. Copyright Office. This tribunal would be empowered to adjudicate copyright infringement claims. To bring a claim, authors would have to send a statement articulating the basis for the infringement claim, which would then be reviewed by tribunal staff. Once vetted by that staff, the claim could be served on the alleged infringer who would have a short period of time within which to opt-out of the proceedings. Unless opt-outs were filed in a timely manner, tribunal hearing officers would proceed to decide the claims and could award up to $30,000 per claim. Claimants could be awarded statutory damages of up to $15,000 per infringed work for authors who had registered copyright claims pre-infringement and up to $7,500 per work infringed for late-registrants. If necessary to persuade infringers to pay the amount awarded and/or to cease infringing activities, successful claimants could seek enforcement of the award in federal court.
Recognizing that this legislation would have important implications for enforcement of copyrights and perhaps for copyright trolls, the Berkeley Center for Law & Technology and UC Hastings Law School organized a workshop of intellectual property, economics, and civil procedure scholars to consider specific aspects of the proposed small claims regime. Although sympathetic to the impetus behind the proposal, participants in the day-long workshop articulated a large number of reservations about the proposed regime, which this Article organizes into six categories. Serious questions were raised about, among other things, its constitutionality, procedural fairness, potential for abuses, and the lack of a cost-benefit analysis to support it.
Pamela Samuelson and Kathryn Hashimoto,
Scholarly Concerns About a Proposed Copyright Small Claims Tribunal,
33 Berkeley Tech. L.J. 689