Many of you may have heard about the small claims copyright system that is being encouraged by several organizations. Many of those groups are artists groups and, while they have very good intentions, the idea of a small claims system for copyright is, in my opinion, a very bad one. It is a fix to a problem that does not exist. And, in exchange, artists are going to lose rights and remedies they should not give up.
Here’s the underlying argument that proponents of a Copyright Small Claims system share, over and over again: litigating a copyright suit costs a plaintiff at least tens of thousands if not over a hundred thousand dollars.
That argument is not correct in so many ways. Its a scare tactic and too many artists groups are buying into it. Allow me to explain the errors.
First, assuming that a case is litigated all the way through trial and judgment is an unfair metric for the average cost. Why? Because according to the Federal Courts own statistics (the most recent ones I found were for a 12-month period ending March 31, 2016), only .07% of all copyright cases filed are terminated (settled or a judgment is entered) during or after trial. To put that into more concrete terms, in that 12 months there were 4836 copyright cases filed in the USA; of those, only 32 were terminated either at trial (settlement after trial started but before judgment entered) or at the end of trial (judgment entered). In the 12 months ending March 31, 2015, it was 26 out of 4253 filed (.06%).
In other words, the chances that a case is fully litigated are incredibly slim! In fact, in the 2016 statistics, 37% of the filed cases are terminated before there is any court action and another 54% are terminated before the pre-trial phase (that is, by the close of discovery). So, 91% of copyright cases get settled by the close of discovery and virtually all the remaining cases settle before trial.
What does this mean? It means the cases that get fully litigated are really hard cases. Parties don’t take a case to trial unless either someone refuses to accept that s/he/it is sitting on a loser (rare) or there is a real question of how the matter might turn out (almost always). When there is a real question especially, then there are lots of experts and more extensive discovery overall and, well, of course the costs are going to be large!
But, going back to my original point, that just doesnt happen hardly at all. Instead, most parties are smart enough (or at least their lawyers are) to settle and to settle pretty early in the process. Usually there have already been pre-litigation settlement negotiations of some sort so when a suit is actually filed, the parties generally know that this is serious now and get their shit together and work it out.
Often, this just happens on its own. In my own experience, I’ve seen it happen over and over–a case gets filed after months of trying to get the defendant to settle, the defendant (finally) gets a lawyer, the lawyer wisely advises Settle, now! and we work it out. And we should, frankly. Most copyright cases are pretty clear cut and most of them should settle before suit is even filed but, if not, then shortly after.
When the parties don’t settle on their own, though, the federal courts have put in mandatory Alternative Dispute Resolution (ADR) procedures into the litigation process. These processes save the court time and money and it saves them both for the parties, too. For example, here in the Southern District of California, we have a Early Neutral Evaluation (ENE) system that means no later than 45 days after the defendant(s) file its answer(s), the parties meet with the Judge Magistrate to look at the case and try to work it out. Often the case will settle at the ENE and, even when it doesn’t, cases usually settle shortly after. This all happens before you get into discovery (or it has barely started in some cases) and so costs are very limited.
The second major error in the scary math is that proponents of Small Claims don’t mention that, overwhelmingly, plaintiffs win copyright suits that go to trial. The latest statistics I saw on that (2009) put it at over 80%. When you win a copyright suit, you may be awarded your attorneys’ fees and costs (assuming you have registered your copyright before the infringement). While that award isn’t guaranteed, courts tend to make that award when it is a smaller plaintiff (like an individual artist) bringing suit, particularly when there is not a really unusual legal question at issue and/or the infringer is a big company that should know better. So, if you go through trial you have a very good shot at winning and, if you do win, you have a shot at having much of the out-of-pocket reimbursed. If your attorney is working on a contingency-fee-basis, you haven’t even been paying her yet anyway (just paying costs, like filing fees, etc.).
Okay, to recap, filing and litigating a copyright suit usually does not cost a terrifying pile of money. It is rare when it does and most of those suits are complex cases (and, by the way, often ones with large corporate plaintiffs like a movie studio). Small artists don’t need a system to reduce those costs because it is unlikely any small artist will get hit with them by filing an action[1].
What do small artists give up if they use the proposed Small Claims system? They give up their right to a jury trial (very bad thing), appeals are very limited, and most disturbingly, the system would limit the amount of money they can win–in fact, the maximum is cut in half (again, assuming the work is properly and timely registered). That depression in awards will affect those who opt out of the Small Claims system, too, even though the rulings of the tribunals would not be precedential. Artists would be giving up way too much for a protection they don’t even need!
The final argument made for a Small Claims system is that attorneys won’t take on small matters on contingency. That is just untrue. Some attorneys might not, but I know plenty who do, including me. In fact, that was a big part of my mission in becoming an attorney: to serve artists. Sure I can’t take every case, but I take a lot of very small ones. If the work is timely registered and the defendant looks solvent, there is a good chance I’ll take the case.
So, rather than give up your rights, use them to your advantage! Register your works, find an attorney who will work with you (it doesnt have to be me–I can recommend others, too), and go after infringers.
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[1] Before you even go to the Monkey Selfie case and the photographer being bankrupted by it: the photographer did NOT file that suit–he has been the defendant in a suit filed by PETA.