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Rumbling around in Congress is the notion that creating a people’s court for small copyright infringement claims would protect the little guy, but not all artists welcome the idea, and some are downright hostile. Currently, freelance photographers, writers, illustrators and musicians who generally have modest incomes may face the loss of a few hundred or a few thousand dollars in payment based on unauthorized use of their work. But the amounts are too small to merit the expense of suing and few lawyers will take such cases. There is no specific bill yet, but a subcommittee in the House of Representatives’ Judiciary Committee has taken up the idea of creating a small claims court. A March 29 hearing explored the idea as a means of creating a simple claims process for artists seeking payment on infringed works. An impending ‘disaster’ Victor S. Perlman, general counsel for the American Society of Media Photographers Inc., told the panel that there is a “desperate need” among professional photographers “for some sort of structure that will give them the access to enforce their copyrights.” A demand for payment by a rights owner is often met with a response, “so, sue me,” according to Perlman, because infringers know the amount is too small to bring a federal case. But the small claims copyright court idea has been lumped into the more controversial proposal to reform copyright law regarding “orphan works,” also without a specific bill pending yet. The idea behind orphan works would be to allow use and distribution of copyrighted works whose owners may be impossible to identify or locate, so long as the user made a “good faith” effort to locate the rights owner. “They are trying to rewrite copyright law and it will be a disaster,” said Brad Holland, founding board member of the Illustrators’ Partnership of America. “A small claims court is not a remedy,” he said. “The copyright office seized on the small claims court as a way to sugarcoat the orphan works.” Ken Swezey, an attorney with Cowan, DeBaets, Abrahams & Sheppard in New York who represents the Artists Rights Society, said, “This springs from creating a problem [with the orphan-works proposal], then creating a solution” with a small claims court. “We’re strongly opposed to the orphan-works legislation,” he said. Among the recommendations floated in the hearing: limiting the small claims process to matters worth less than $10,000; prohibiting legal representation; requiring an initial prima facie showing of infringement by the owner to prevent frivolous suits; and allowing adjudication by administrative law judges, possibly as part of the copyright office to ensure expertise in copyright law. The House subcommittee reform proposals for orphan works and a small claims court do have strong supporters. Museums, libraries, archivists and publishers as well as the Electronic Freedom Foundation have backed it. Paul Aiken, executive director of the Authors Guild and an attorney, said that he sees a small claims court as “completely separate from orphan works. “This has been an issue for individual copyright owners for a long, long time,” Aiken said. “It is just uneconomic to bring these claims in federal court.” A survey last month of 1,200 members of the Authors Guild showed that 55% liked the small claims court idea, while 17% disliked it and 28% were neutral. Those who objected feared that it would not be simple, effective or inexpensive, according to Aiken. Complicated questions Swezey said small claims courts traditionally were created in local courts to resolve disputes by local citizens. Will the venue questions go away in a national federal system?, he asked. If you have to make a prima facie showing to go forward, “that is called a motion to dismiss.” How do you deal with foreign works in Russian or Japanese, if you made a good-faith search for the author but can’t even search in that language? To stop continued infringing you need injunctive relief and orders to destroy infringing works. Would a small claims court have that authority?, Swezey asked. Said Holland, the proposal “risks transferring a vast body of [digital] rights into an orphan-works limbo by legalizing the infringement of any work whose creator is said to be hard to find.”

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