Scholarly Concerns About a Proposed Small Copyright Claims Tribunal

Abstract

Bills recently introduced in the House of Representatives, in 2016 and again in 2017, would implement a proposal by the U.S. Copyright Office to establish a small claims tribunal within the Office. The Copyright Alternatives in Small-Claims Enforcement (CASE) Act of 2017, H.R. 3945, would authorize creation of a centralized tribunal system to adjudicate small copyright infringement claims as well as abuse of notice-and-takedown claims under 17 U.S.C. § 512(f). The bill, like its predecessors in 2016, is largely based on draft legislation developed by the Copyright Office in its 2013 Report on Copyright Small Claims. Recognizing that enactment of legislation of this sort may have profound effects on copyright in the U.S., the Berkeley Center for Law & Technology (BCLT) and UC Hastings College of the Law convened a workshop In February 2017. Eighteen scholars specializing in economics, civil procedure, and intellectual property law discussed the small copyright claims legislation contemplated in the Copyright Office Report and the bills introduced in 2016. This report describes the range of issues discussed. Reservations expressed at the workshop fell into six principal categories: 1) constitutionality concerns; 2) breadth of jurisdiction; 3) process concerns about claiming, adjudicating, and appealing the outcomes if the proposal was enacted as is; 4) potential for abuses; 5) underexplored alternatives; and 6) larger questions about the proposal, including whether copyright is so special that it should have a tribunal of its own, given that many federal laws are underenforced because of the high costs of litigation. The range and seriousness of concerns lead to the conclusion that further consideration is warranted before moving forward with proposed legislation.