The Copyright Office asked in a Federal Register notice Tuesday...

p6), which were preceded by notices asking for comment in summer 2012 and fall 2011. This most recent request is for “additional comments on possible alternatives to the current system to improve the adjudication of such claims,” the notice said. The office wants feedback on “how a small copyright claims system might be structured and function, including from parties who have not previously addressed these issues, or those who wish to amplify or clarify their earlier comments, or respond to the comments of others.” It’s interested in “the potential benefits and risks of creating a new procedure for adjudicating small copyright claims, as well as how such a system might be implemented -- for example, as a new adjudicative body, as part of the existing federal court system, by extending the jurisdiction of state courts, or as some form of arbitration or mediation system.” Subjects of inquiry for the notice, informed by the public meetings, are: (1) Voluntary versus mandatory participation. “Members of the public” at the meetings differed on the “efficacy of incentives for participation in a voluntary system and the constitutional implications of a mandatory system.” The office said it wants to know whether a voluntary system could be implemented on an opt-out basis -- deeming defendants to consent to the process unless they opt out within a certain time frame. (2) Eligible works. In the last round of comments and public meetings, some music organizations said musical works and sound recordings should be exempt from the system, since creators are represented by publishers, performing rights societies and record companies, the office said. But others said some artists -- “those who are self-represented” -- may not have resources to take action or be able to convince a larger organization to take up their case. The office wants more comment on the subject. (3) Permissible claims. Commenters and participants noted that “some infringement claims are intertwined with other issues” like contractual disputes, “thus suggesting a need for any such [small claims] tribunal to address these additional types of claims and defenses as well,” the office said. Others said such tangential matters should be excluded from the small-claims process entirely. The office wants “further thoughts” on permissible claims and how to address situations where an “additional cause of action” is implicated. (4) Injunctive relief. Though some stakeholders said it should be available for situations where infringement “exploits the work in a manner that the copyright owner would not license, or violates an exclusive arrangement between the copyright owner and a third party,” others said that could be complicated for small claims, the office said: It could be “one part of a larger work” such as a film, and monetary damages could be small but “economic consequences” could exceed “in value any damages cap adopted for the small claims process.” The office said it wants to know how the voluntary-versus-mandatory system would affect injunctive relief in each situation, and whether the federal courts should have review over such injunctions. (5) Secondary liability. Discussion has touched on the relationship of a small claims procedure to Copyright Act Section 512 takedown requirements, and it wants more comment on that, the office said. (6) Role of attorneys. Some said attorneys should be barred because they would “tend to favor defendants with greater resources” against plaintiffs representing themselves, while others said attorney participation should be encouraged, especially in cases “with a degree of legal complexity” and incentivized through “fee awards” in lower-value cases. (7) “Guiding law.” The office asked whether a small-claims tribunal should look “primarily to copyright decisions of any particular [federal] circuit” based on its location, the parties’ location or where the infringing conduct occurred. It also asked whether decisions should have “precedential effect” at least within the tribunal, because some told the office that defendants might opt out of a voluntary system if the decisions “had effect beyond the immediate dispute.” Other subjects for comment include willful and innocent infringement; how to serve defendants with legal notice; the propriety of a defendant-driven “offers of judgment” process as contemplated in Federal Rule of Civil Procedure 68; whether default judgments should be allowed; how to enforce judgments; whether a “John Doe” ISP subpoena process should be available for anonymous defendants; whether a “tiered system” for cases ranging from “straightforward claims” to those of “greater complexity” would be warranted; constitutional issues arising from creating tribunals outside the federal court system, availability of trial by jury, assertion of personal jurisdiction and due-process considerations from “abbreviated procedures.” The office also asked for thoughts on allowing foreign plaintiffs to seek U.S. redress and the same for U.S. plaintiffs abroad, and how it would implicate U.S. agreements in the Berne Convention among others; and for “additional surveys and empirical studies” showing whether copyright owners are now pursuing small claims through the federal courts, litigation costs to plaintiffs and defendants in federal courts, how often prevailing parties are awarded costs and fees, and how often litigants appeal state-court judgments. Comments are due April 12 (http://1.usa.gov/yHoBdZ).