How Chairman Goodlatte Could Stop the Ennui of Learned Helplessness

Today, Chairman Goodlatte held a hearing before the House Judiciary Committee's Subcommittee on Courts, Intellectual Property and the Internet entitled "A Case Study for Consensus Building: The Copyright Principles Project."

The Copyright Principles Project is an ad hoc group predominantly comprised of "high tech" lawyers and law professors, with some multinational tech companies and two movie studio lawyers bringing up the rear. I simply can't imagine how the studio lawyers went for some of these ideas, but they would be safely outvoted given the membership of "The Project" apparently as determined by the "convener."

As Cracker's David Lowery has pointed out in Politico, the group does not include any creators at all, and doesn't even have anyone at all from the visual arts, screenwriters, composers, music publishers or independent film distributors. Even if "The Project" kept to their theme of "only the very big guys need apply," you might have expected to see representatives of some other multinationals present.

An Effective Copyright Small Claims Court

So while there may be some value in the work product of "The Project" even with its flawed "consensus," and I think the "copyright small claims" idea might be one, it would be a mistake to call "The Project" a "consensus," unless you have a rather plutocratic idea of what "consensus" encompasses.

If you haven't been following it, the U.S. Copyright Office has been conducting some inquiries over the last year on certain "hot topics" in copyright law -- some of which fit neatly into the topics that "The Project" has apparently itself be considering over the last three years.

What a happy coincidence.

One of those ideas is a "small claims court" for copyright claims that would make it easier for copyright owners of limited means to get justice.

Having interviewed a number of songwriters on this subject, I will propose a simple idea for a small claims court that would actually help songwriters (and probably visual artists, recording artists, independent film makers and others as well).

Small Claims Could Help Solve the DMCA Whack a Mole Hack

At the outset, it is important to keep in mind that this small claims court -- in fact, all of the proposals from "The Project" -- are addressed to the honest people. Mass infringers will ignore these proposals like they ignore every other law. So as David Lowery also noted, the fact that "The Project" blithely ignores the mind numbing abuse of the DMCA notice and takedown regime, even by legitimate companies, does not add credibility to its findings. Pretending the bad boys are not there does not make the neighborhood safer.

However, I think The Project correctly identifies some of the attributes of a functioning copyright small claims court such as filings on paper with no appearances, submission to a central location such as the Copyright Office (although I would have said the Copyright Royalty Judges, but won't quibble), and a limited amount of damages. The typical non-copyright small claims court limits claims to around $5,000, for example.

There are typically two broad categories of awards a court can make to plaintiffs: Paying money (damages) and changing behavior (injunctions). But what has always been of importance to the songwriters and film makers I have spoken to is not so much the money. These artists are much more interested in stopping the game of whack-a-mole that Big Tech and pirates both play so well when it comes to reposting unlicensed works.

What usually happens when an artist sends a DMCA notice to a "legitimate" site to request the site disable a hosted link to an infringing copy of the artist's work is that the site does their best to extract a counternotice from the potential infringer. Then the site sends a notice back to the songwriter copyright owner saying that the user contests the notice and unless the songwriter files a federal copyright infringement lawsuit, the material will stay up.

The songwriter, of course, cannot afford to file that litigation. The site would argue that this is the letter of the law and they are entitled to a safe harbor. This doesn't make the songwriter any less correct and it does nothing to determine whether the user is telling the truth.

Stopping the Madness

And it is here that the copyright small claims could come in. If instead of having to file a federal copyright infringement lawsuit, the songwriter could instead file a small claims case, that would empower the songwriter to deal with the highly profitable game of whack a mole that has created the urban legend in tech circles of the "DMCA license." Profitable for everyone but the creator, of course.

There is, of course, no such thing. But by not addressing these loopholes, the Congress is effectively giving a free compulsory license imposed on those who can least afford it.

What many songwriters have told me is that they would much prefer having the ability to get an injunction to stop the madness -- if they could get a small claims court to issue an injunction against the site to prevent any of their material from being posted, they would much prefer that result to getting money. (Which would probably come in the form of a judgment they would have to try to execute against an anonymous user who may live in Belarus and be 14 years old.)

"The Project" hints at the benefit of "non-monetary remedies, such as addressing breaches of attribution conditions of copyright licenses."

Ahem. That's not the "non-monetary remedy" most artist would be thinking of because it assumes that there already is a license in place. And if those of us who toil in the vineyard that supports the ivory tower know anything, it is that breaches of licenses is not the leading copyright issue of the day for small business.

A good example of this is from the internal YouTube emails produced in the Viacom lawsuit against Google: "if you remove the potential copyright infringements ... site traffic and virality will drop to maybe 20% of what it is."

The Ennui of Learned Helplessness

While we can understand why "The Project" would not want to interrupt this free ride, it doesn't change the fact that the taunting game of "whack a mole" played by Big Tech and those who follow them is bullying pure and simple. And since stopping the infringement would affect the bottom line of those who profit from the de facto "DMCA license," it's not surprising that the "consensus" of "The Project" didn't produce this simple fix that would actually help small businesses and independent artists.

Empowering artists with the ability to stop infringement would go a long way to ending the ennui of learned helplessness induced by the current DMCA practice -- artists who stop struggling because they simply can't afford to do otherwise. While "The Project" might view this as an unintended consequence of their proposals, it is one that I would commend to Chairman Goodlatte as one he should take very seriously.