Originally posted September 12, 2012.
A major theme around here is the proposition that copyright law encourages litigation of even the most tenuous plaintiffs’ claims, mainly because of the rules regarding fee-shifting for “prevailing” parties. Similarly there are claims that are not so tenuous, on the merits, but are nonetheless still economically trivial. The creators of such works are entitled to protection, of course, but providing that protection should not be a source of windfall fees for lawyers.
Evidently the Copyright Office has been thinking some thoughts along these lines, as reported by the Fashion Cloture blog:
The U.S. Copyright Office recently issued a second request for public comments regarding the adjudication of small copyright claims. The Copyright Office’s notice is important for the fashion industry, since there is currently copyright protection for certain aspects of fashion (such as fabric prints and jewelry).
At the request of Congress, the Copyright Office is currently conducting a study on the current legal system for small copyright claims. The Copyright Office published its first request for comments in October 2011, and the Office recently issued a second request to gather further input as to how a small claims system might be structured. The Copyright Office is particularly interested in comments that address the appropriate tribunal/court to handle small copyright claims, whether the small claims process should be voluntary or mandatory, and the roles of mediation and arbitration. Comments must be received by September 26, 2012.
UPDATE: Remember Jammie Thomas?
Appeals court sides with RIAA, Jammie Thomas owes $222,000 — The U.S. Court of Appeals for the Eighth Circuit vacates a lower court’s decision and rules that Thomas-Rasset, an admitted music pirate, must pay the top four labels $222,000. . . .
We conclude that the recording companies are entitled to the remedies that they seek on appeal. The judgment of the district court is vacated, and the case is remanded with directions to enter a judgment for damages in the amount of $222,000, and to include an injunction that precludes Thomas-Rasset from making any of the plaintiffs’ recordings available for distribution to the public through an online media distribution system.
I’m not saying that illegal music downloading is trivial. It is and it isn’t. And I’m not saying the Constitution really has all that much to say about copyright damages for music downloading. But as I’ve said before in connection with this case, and others… something is out of whack here.