Opt-Out Option Threatens Fledgling Small Claims Copyright Board

A small-claims alternative to court where independent artists can defend their intellectual property rights is in danger of stalling months before it’s set to launch, as law professors balk at a plan for their students to participate.

Pro bono legal representation from budding lawyers was a key presumption in the Copyright Claims Board—which Congress envisioned as a voluntary, affordable alternative to expensive courtroom battles.

But 13 leading law professors from clinics that serve clients in need told the U.S. Copyright Office they won’t have their students argue cases before the three-person tribunal, which is scheduled to begin hearing cases in June.

A sticking point is the fully voluntary nature of the board, which allows alleged copyright violators to simply refuse to participate. That would leave small-time creators in the same position they’ve always been: accept alleged infringement of their intellectual property rights or pursue costly copyright fights in federal court.

“Our concerns center on the CASE Act’s opt-out mechanism, which can yield outcomes ranging from immediately bringing a dispute to a halt to escalation of a case into complex, high-stakes federal court litigation,” wrote the law professors, who represent clinics and schools ranging from Fordham University to the University of California, Irvine.

The professors also questioned the educational value of having their students argue before the tribunal.

Vicki Phillips, a clinical law professor at American University and one of those who signed the comment, said the concerns are real.

“If a client came to us, and they had a good defense, our advice would be to opt out,” said Phillips. “Don’t play this game.”

Avoiding Steep Costs

The board, established by the Copyright Alternative in Small-Claims Enforcement Act of 2019, is supposed to provide a low-cost alternative to litigation in federal court, the only forum where copyright cases can be tried under U.S. law.

Once it launches, a case can be brought before the Copyright Claims Board in Washington for $100, can be heard with or without a lawyer, and can be conducted remotely. Catering to photographers, musicians, or other independent creators, the board will cap total relief available in the small-claims process at $30,000.

By comparison, the median cost of litigating a copyright infringement case in federal court through discovery was $200,000 nine years ago, according to a 2013 Copyright Office report. Even filing a copyright complaint in federal court costs $400, more than most photographers charge to license a photo.

Several organizations representing small copyright owners have indicated their strong support of the Copyright Claims Board, including the Professional Photographers of America and the Society of Composers & Lyricists.

“Images are infringed just at this exponential number and short of going to federal court, which is really expensive, there’s no real other alternative,” said National Press Photographers Association general counsel Mickey Osterreicher. “Hopefully through the review board, you’re not going to have those kinds of costs.”

‘Like Opening Up a Law Firm’

Not all law schools agree with the comment letter, but some that are open to participating say the board as structured raises other barriers, including strict eligibility requirements for students to be involved.

The University of Nevada Las Vegas’ Boyd School of Law has a structured pro bono program that could work for the Copyright Claims Board—but only if the U.S. Copyright Office drops its requirement that participating clinics must be focused on intellectual property, said Marketa Trimble, an intellectual property law professor at the school.

“We would very much appreciate the possibility to participate without opening a new clinic,” Trimble said. “People outside of legal academia often don’t realize how resource intensive this project might be, but it’s like opening up a law firm.”

Existing copyright clinics can only serve so many clients already, said Blake Reid, a clinical professor of law at Colorado Law, who also was one of the 13 who signed the letter.

“The proponents of the CASE Act put forward that there are a lot of disputes that are not getting serviced in federal court, and, you think: ‘Are the few clinics that are out there going to be able to handle all that work? Or most of that work? Or even a significant portion of that work?’” he said. “It depends. If it’s a lot, given the trouble that everyone went to to get the CASE Act passed, the notion that a few clinics are going to serve that doesn’t make a lot of sense.”

Douglas Lichtman, a clinical law professor at UCLA, said several of the school’s faculty members are working on a proposal for a new clinic focusing on the Copyright Claims Board.

“The goal is to serve clients for whom this mechanism makes sense, in situations where both sides prefer this approach over traditional litigation,” Lichtman said. “If it turns out that there are very few such cases, that just tells us that this mechanism is not attractive to would-be litigants.”

‘Important Role’

The Copyright Office in its notice of proposed rulemaking said clinics will play an “important role” in helping underserved people at the claims board.

Parties going before the tribunal aren’t required to have an attorney—but having legal representation can be necessary when dealing with complex copyright issues, attorneys said.

The comment letter from the 13 professors suggests Congress and the U.S. Copyright Office should consider changes that would have the tribunal more closely resemble a traditional small claims board, which doesn’t usually require legal representation.

The agency is committed to facilitating law student representation through clinics, the Copyright Office said. But the Copyright Office doesn’t comment on public comments or pending rulemakings, a spokesperson said.

“To whatever extent the Office is contemplating proceedings that will require a large number of CCB litigants to seek pro bono counsel from clinics, the Office should be mindful of the fact that clinics likely will be unable to fill the significant access-to-justice gap that the opening of proceedings before the CCB may create,” said the comment, which was filed Feb. 3.