Chu, Jeffries Drafting Bills on Small Claims Copyright Court Process

The draft bills aren't identical but both are “modeled closely” on a 2013 Copyright Office recommendation for establishing an alternative copyright small claims process, said Copyright Alliance CEO Keith Kupferschmid. The CO recommended a voluntary centralized three-member tribunal within the office that would adjudicate disputes relating to copyright infringement claims valued at under $30,000 in damages. The CO-proposed court would administer proceedings online and via teleconferences, with all parties agreeing to abide by the tribunal's decision (see report in the Oct. 1, 2013, issue). The Department of Commerce's Internet Policy Task Force supported the CO proposal earlier this year, saying in a white paper it supports creating a “streamlined procedure” for adjudicating small claims copyright cases (see 1601280065). Spokesmen for Chu and Jeffries didn't immediately comment.

Chu's bill appears to have originated from a sustained lobbying effort by a Professional Photographers of America-led coalition of visual artists' groups, although an array of copyright stakeholders has sought the creation of a small claims court over the past 10 years, an industry lobbyist told us. The PPA-led coalition held a briefing in early November for the staff of members of the Congressional Creative Rights Caucus, which Chu and House IP Subcommittee Vice Chairman Doug Collins, R-Ga., jointly chair. Chu was “very interested in taking on the issue [of a copyright small claims court] and introducing legislation” after the CCRC briefing and a series of followup meetings, said PPA Manager-Government Affairs Lindsey Forson. PPA has been “working closely” with Chu's office since November on the legislation, though Chu's office also has sought feedback from other stakeholders, Forson said.

Chu is likely to file her bill in the next few weeks although “there hasn't been a huge rush' to introduce the bill given the rapidly closing legislative window that will likely stymie legislation during the remainder of the 114th Congress, Forson said. House Judiciary Chairman Bob Goodlatte, R-Va., also appears to intend to “delve into the legislative stage” of the copyright view during the 115th Congress, so Chu's introduction of her bill this year sets up further examination of the bill next year, Forson said. Introduction of either bill this year “is really just about putting down a marker,” an industry lobbyist told us. Chu's office also is generating interest among some potential House GOP co-sponsors for her bill but hasn't gotten a final commitment yet, Forson said.

Jeffries' bill “isn't a surprise” but wasn't directly related to PPA's lobbying efforts, Forson said. PPA also is providing input on Jeffries' bill but it's “too early to say” how his bill and Chu's bill compare given that both bills' provisions remain fluid at this point, Forson said. “There don't appear to be strong ideological differences” between the bills. “There are definitely more similarities between these bills than differences,” said American Photographic Artists (APA) General Counsel James Silverberg. Both Chu and Jeffries have “made significant changes to their drafts in recent weeks,” Forson said. Jeffries' bill initially aimed to create the small claims court only as a pilot program, but has since changed to create a permanent program after PPA and other copyright stakeholders told Jeffries' office that they “are really looking for a permanent solution,” she said.

APA, a member of the PPA-led coalition, wants “to make sure that copyright small claims is another tool in the toolbox for everyone to deal with the infringement process or a claim a photographer has against a potential defendant that gives the defendant the ability to deal with such a claim in a situation that presents a reduced cost impact for everyone,” said APA Advocacy Committee Chairman Michael Grecco. “Our position at this point is that what is released cannot diminish the rights that visual artists have already.” APA wants to ensure the Chu and Jeffries bills don't allow for “declaratory judgment, that the small claims process remains voluntary,” Grecco said. APA wants the small claims process to be structured in a way that ensures “neither side is in a position to abuse the legal process in order to force their adversary to come to some sort of resolution,” Silverberg said.

Proposals for a small claims copyright adjudication process remain controversial among some copyright stakeholders, said Computer and Communications Industry Association Vice President-Law and Policy Matthew Schruers. “There are constitutional challenges and administrative challenges with creating a new judicial process like this,” he said. “At a time when there's broad consensus that the [CO] at present cannot achieve its institutional mission of registering and recording works in a timely and effective way, providing them a new responsibility to administer a new judicial process is probably not the best policy option.” There's “not a good answer” for where a copyright small claims process would reside if it's not located within the CO, he said. There are also a number of technical questions about even a voluntary adjudication process that could have “huge impacts on all sorts of different stakeholders,” Schruers said.