The Copyright Office asked in a Federal Register notice Tuesday (http://1.usa.gov/WdwWXl)nfor a third round of comments on "adjudicating small copyright claims," a proceeding prompted by Congress.nThe request followed public meetings with stakeholders in the fall (WID Nov 5 p6), which werenpreceded by notices asking for comment in summer 2012 and fall 2011. This most recent request is forn"additional comments on possible alternatives to the current system to improve the adjudication of suchnclaims," the notice said. The office wants feedback on "how a small copyright claims system might benstructured and function, including from parties who have not previously addressed these issues, or thosenwho wish to amplify or clarify their earlier comments, or respond to the comments of others." It's interestednin "the potential benefits and risks of creating a new procedure for adjudicating small copyrightnclaims, as well as how such a system might be implemented — for example, as a new adjudicative body,nas part of the existing federal court system, by extending the jurisdiction of state courts, or as some formnof arbitration or mediation system." Subjects of inquiry for the notice, informed by the public meetings,nare: (1) Voluntary versus mandatory participation. "Members of the public" at the meetings differed onnthe "efficacy of incentives for participation in a voluntary system and the constitutional implications of anmandatory system." The office said it wants to know whether a voluntary system could be implementednon an opt-out basis — deeming defendants to consent to the process unless they opt out within a certainntime frame. (2) Eligible works. In the last round of comments and public meetings, some music organizationsnsaid musical works and sound recordings should be exempt from the system, since creators arenrepresented by publishers, performing rights societies and record companies, the office said. But othersnsaid some artists — "those who are self-represented" — may not have resources to take action or be ablento convince a larger organization to take up their case. The office wants more comment on the subject.n(3) Permissible claims. Commenters and participants noted that "some infringement claims are intertwinednwith other issues" like contractual disputes, "thus suggesting a need for any such [small claims]ntribunal to address these additional types of claims and defenses as well," the office said. Others saidnsuch tangential matters should be excluded from the small-claims process entirely. The office wantsn"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 fornsituations where infringement "exploits the work in a manner that the copyright owner would not license,nor violates an exclusive arrangement between the copyright owner and a third party," others saidnthat could be complicated for small claims, the office said: It could be "one part of a larger work" suchnas a film, and monetary damages could be small but "economic consequences" could exceed "in valuenany damages cap adopted for the small claims process." The office said it wants to know how the voluntary-nversus-mandatory system would affect injunctive relief in each situation, and whether the federalncourts should have review over such injunctions. (5) Secondary liability. Discussion has touched on thenrelationship of a small claims procedure to Copyright Act Section 512 takedown requirements, and itnwants more comment on that, the office said. (6) Role of attorneys. Some said attorneys should benbarred because they would "tend to favor defendants with greater resources" against plaintiffs representingnthemselves, while others said attorney participation should be encouraged, especially in cases "withna degree of legal complexity" and incentivized through "fee awards" in lower-value cases. (7) "Guidingnlaw." The office asked whether a small-claims tribunal should look "primarily to copyright decisions ofnany particular [federal] circuit" based on its location, the parties' location or where the infringing conductnoccurred. It also asked whether decisions should have "precedential effect" at least within the tribunal,nbecause some told the office that defendants might opt out of a voluntary system if the decisionsn"had effect beyond the immediate dispute." Other subjects for comment include willful and innocentninfringement; how to serve defendants with legal notice; the propriety of a defendant-driven "offers ofnjudgment" process as contemplated in Federal Rule of Civil Procedure 68; whether default judgmentsnshould be allowed; how to enforce judgments; whether a "John Doe" ISP subpoena process should benavailable for anonymous defendants; whether a "tiered system" for cases ranging from "straightforwardnclaims" to those of "greater complexity" would be warranted; constitutional issues arising from creatingntribunals outside the federal court system, availability of trial by jury, assertion of personal jurisdictionnand due-process considerations from "abbreviated procedures." The office also asked for thoughts onnallowing foreign plaintiffs to seek U.S. redress and the same for U.S. plaintiffs abroad, and how it wouldnimplicate U.S. agreements in the Berne Convention among others; and for "additional surveys and empiricalnstudies" showing whether copyright owners are now pursuing small claims through the federalncourts, litigation costs to plaintiffs and defendants in federal courts, how often prevailing parties arenawarded costs and fees, and how often litigants appeal state-court judgments. Comments are due Apriln12 (http://1.usa.gov/yHoBdZ).
展开▼
