A Small Claims Tribunal for Copyright Cases in the USA

US Copyright Office

Author Matt Wade
Licence Creative Commons Attribution-Share Alike 3.0 Unported
Source Wikipedia US Copyright Office

Jane Lambert

Yesterday I received a phone call from an American lawyer who wanted to learn about the Intellectual Property Enterprise Court's Small Claims Track. The reason she called is that she advises members of the US Congress who have introduced a bill "to establish an alternative dispute resolution program for copyright small claims, and for other purposes." I answered her questions as well as I could and referred her to the Intellectual Property Enterprise Court's website, the IPEC and Small Claims Track guides as well as my own writings on the subject.  I also directed her to Judge Hacon's clerk for further information.

The ADR programme for copyright small claims proposed by the members of Congress is very different from IPEC's Small Claims Track.  It does not appear to be a court as such for a start.  A new section 1401 (1) of Title 17 of the US Code would establish in the U.S. Copyright Office a copyright small claims program to be known as the ‘Copyright Claims Board’,  The purpose of the proposed Board would be to "serve as an alternative forum in which parties may voluntarily seek to resolve certain copyright claims, regarding any category of copyrighted work." Its jurisdiction would appear to be limited to copyright claims and depend on the consent of the parties. Subsection (9) of the same section would locate the Board in the Copyright Office's premises in Washington DC.

The Board would consist of legally qualified Copyright Claims Officers assisted by Copyright Claims Attorneys. The Officers' responsibilities would be as follows:

“(A) To render determinations on such civil copyright claims, counterclaims, and defenses as are permitted to be brought before them under this chapter.
(B) To ensure that claims, counterclaims, and defenses are properly asserted and otherwise appropriate for resolution by the Copyright Claims Board.
(C) To manage the proceedings before them and render rulings pertaining to the consideration of claims, counterclaims, and defenses, including scheduling, discovery, evidentiary, and other matters.
(D) To request the production of information and documents relevant to the resolution of a claim, counterclaim, or defense from participants in a proceeding and from nonparticipants. “(E) To conduct hearings and conferences.
(F) To facilitate parties’ settlement of claims and counterclaims.
(G) To award monetary relief and also to include in its determinations a requirement of cessation or mitigation of infringing activity, including takedown or destruction of infringing materials, where the party to undertake such measures has so agreed.
(H) To provide information to the public concerning the procedures and requirements of the Copyright Claims Board.
(I) To maintain records of the proceedings before them, certify official records of such proceedings as needed, and make the records in such proceedings available to the public in accordance with law.
(J) To carry out such other duties as are prescribed in this chapter.
(K) When not engaged in performing their duties as prescribed in this chapter, to perform such other duties as may be assigned by the Register of Copyrights."

The Board would have power to award up to US$30,000 in damages.  It does not appear that it woould have an express power to grant injunctions or orders for delivery up of infringing copies but section 1403 (2) provides for agreements to cease infringing activity which may well amount to the same thing:

"In any proceeding where a party agrees to cease activity that is found to be infringing, including removal or disabling of access to, or destruction of, infringing materials, and such agreement is reflected in the record, the Copyright Claims Board shall include in its determination a requirement that such party cease his or her infringing conduct."

As a general rule, each party would bear its own costs including its own lawyers' fees but section 1405 would empower the Board to order a party that has acted in bad faith to contribute to the other side's costs.

Anyone wishing to discuss this article or our own small claims jurisdiction should call me on +44 (0)20 7404 5252 or send me a message through my contact form.