Lessons for Online Piracy Legislation from Comments on Copyright Small Claims

The draft legislation called Online Protection & Enforcement of Digital Trade Act (OPEN) is having its moment in the sun as an approach favored by Google and other internet powers who are said to regard it as not threatening to damage the structure of the web. See, keepthewebopen.com. But thinking about the limelight suddenly bathing the question of how to deal with the serious harm of online piracy, few notice the challenge of how to empower individual and small enterprise owners of creative works. As in business generally, their importance is great and no practical solutions are even on the table.

OPEN has a good idea for larger players with enforcement proceedings in the US International Trade Commission (ITC, usitc.gov), but complaints before that body are too time consuming and expensive for most individuals and small businesses to pursue. If you’re interested in the full range of obstacles to enforcement, the Library of Congress offers a good collection of illustrations.

It all started six years ago with testimony before Congress titled “Statement of the United States Copyright Office before the Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary.” copyright.gov/docs/regstat032906.html The problems laid out in the statement are as real today as they were in 2006. The statement was to be part of a process leading to reforms. What happened? Essentially nothing, and the Copyright Office to its credit has all but started from scratch again with a request for public comment on this important subject.

The comment period ended January 17. Everything submitted is collected under the heading “Comments on Small Claims.” copyright.gov/docs/smallclaims/comments/. Some of the statements give an accurate description of the near-impossibility of enforcing rights for many.

Photographers, for example, are said to earn an average of less than $50K annually and they must use a large part of that income for the technology that is now mandatory in their field. Getting a lawyer, filing a federal lawsuit, obtaining an injunction, receiving an award of attorney’s fees or even damages–one hurdle after another that can’t be jumped. The groups representing photographers and graphic artists see a huge need.

The performing rights societies that represent a great segment of the music industry see it differently. They argue that a copyright small claims type procedure isn’t needed because of their enforcement efforts. Of course those efforts aren’t effective enough to combat online piracy, and so more legislation is needed. But don’t expect ASCAP, SESAC, or BMI to see that needed legislation as including small claims type proceedings.

For the creative works that have the strength of large public and private organizations, like movies, music, video games, and as of now publishing, copyright enforcement against online piracy can work if the right legal tools are provided and the internet community is in accord. But for individual and small enterprise rights owners who want or need to enforce rights on their own, the Copyright Office comments are a warning that these concerns may be left behind again as new rounds of legislation are put forward.

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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