A reader asked us about our thoughts regarding a “small claims court” for copyright actions. Alan Zarenelli, asked this question in our blog’s comments. “Howdy – The PPA is pushing hard to have copyright cases heard in small claims court (http://www.ppa.com/ppa-today-blog/copyright/why-do-we-need-copyright-small.php). What do you think of this approach?”
We think the reply is worth an extensive reply. While both of us applaud any effort in pushing this idea. But we have a very long history with this issue.
While the press release from PPA makes it appear that this concept has been initiated by it and in effect its idea, such is simply not the case. Ed has been seeking and working toward the establishment of a “smaller” – not small – claims part of the Federal Courts. His advocacy to encourage attorneys and parties who refused to settle cases with realistic maximum recoveries of ie under $100,000 has gone on for nearly two decades. If you go on the Copyright.gov website you can find his proposal drafted with Prof. Nimmer for APA in 2012 and which was submitted to the US Congressional sub-committee in that year. The key was to streamline the pre-trial process so as to make the bringing of such cases easier and to prevent large businesses from stalling a case for years against a single creator typically represented by a single practitioner lawyer. PPA ignores the fact that the Federal Court Judges are quite aware of this trial tactic and most seek to prevent time wasting and stalling.
The proposal, linked below, was aimed at cases where there was little to no need for extended depositions, lengthy document productions nor a dispute over the validity of the registration.
You will see it’s an extensive proposal on smaller claims copyright. Once the term small claims is used, readers falsely assume that we are dealing with cases worth $5,000 or thereabouts.
One of the paragraphs reads: “APA believes the Proposal for Small Copyright Infringement Claims submitted by David Nimmer on behalf of American Photographic Artists with Special Counsel Edward Greenberg on January 17, 2012 is a very detailed proposal. APA’s approach was to keep the system in Federal Court with few changes or additions that would challenge constitutional issues. We still believe it is the best solution to make small infringement claims possible. Several comments below pull from the APA Proposal that David Nimmer and Special Counsel Edward Greenberg drafted and we thank them of their contributions.”
Again, we applaud any effort moving this idea forward. Ed has actually been proposing this for 16 years, before this APA proposal. At this time, many of the other photo, illustration, and other trade associations are also pushing for this. This is not just a single trade association’s initiative. Ed has discussed the idea with numerous Federal Court judges since Reagan was President and Jack has lectured/written about the issue more times than we can count over more years than we care to remember.
The one thing we do have a problem with is the numbers being tossed around in the PPA article. No one can state ahead what an infringement is worth or what litigation will cost. If these numbers were hard facts, Ed would not be as busy as he and many other IP lawyers have been through the years. Jack has sued over infringements of his photos and can state that he’s collected much more than in the article at a cost much, much less. The vast majority if not 99% of these cases are settled pre or post litigation accompanied by a confidentiality clauses, so very few recoveries, settlements etc. are known to the trade associations, photographers or lawyers not associated with those cases. Lawyers associated with such cases – Ed has been involved in a few thousand over 37 years – and CAN NOT DISCLOSE the nature or extent of any settlements. The numbers mentioned in the PPA release are based on nothing substantial other they are in effect “industry gossip”, unsubstantiated anecdotes or outright myths. If the numbers/amount mentioned were remotely accurate Ed and other attorneys who do what he does would be fixing cars or doing roofing to make ends meet.
The PPA article fails to mention that the Federal Courts are generally faster and far more efficient than local ones. Copyright cases MUST be heard in the Federal Courts and the judges and magistrates there are quite good at settling cases that ought be settled. Their services cost a single $400 filing fee to start your case. You can have a 15-hour settlement conference (Ed has) and there is no extra court fee. You/your lawyer can make or respond to lots of motions and even go to trial. $400 covers all of your court fees. If you prevail, you may receive part, all or more than all of what you have paid your attorneys to win your case from the losing party(s).
PPA would have you believe that the Federal Courts are not a practical remedy for copyright infringement cases. We heartily disagree. Having made countless actual appearances in the Federal Courts of NY, NJ, FL, CA, MA and elsewhere Ed is quite comfortable – as any experienced IP litigator should be – in any Federal Courthouse anywhere. Juries tend to be very sympathetic to creators and “anti- infringers.
Please understand, if you get word from PPA, APA, ASMP, NAPP, GAG or any other small claims initiative, we strongly urge you to follow through and support this effort, if you agree those proposals.
As we both say until we’re blue in the face, register all your work in a timely fashion, always, all of the time. Copyright infringement cases especially on works with existing registrations tend to be quite profitable for creators and their lawyers. If an experienced copyright litigator turns down your case for reasons that you don’t quite understand or believe not to be valid, seek another such attorney out who actually litigates these type cases in your local Federal District Court and get a second opinion.
We’ve written many articles about settlements and the value of infringements.
We welcome any comments.