Earlier this month, the Copyright Claims Board (CCB) began accepting cases. The long sought after copyright small claims court, the CCB can hear cases where the damages are less than $15,000 per work or $30,000 in total.
While the full usefulness of the CCB remains up in the air, especially considering that respondents can simply opt out of the proceedings, that hasn’t stopped claims from pouring in. As of this writing, some 35 cases have already been filed with the CCB.
The cases represent a wide variety of copyright-related issues. However, several patterns have have already begun to emerge in terms of who is filing the cases and who is targeted by them.
First, there have been no cases related to file sharing. This makes a great deal of sense, as discovering the identity of suspected file sharers likely means going through the regular court system. This makes a deviation to the CCB an odd choice.
Furthermore, most entities that would file legal action against suspected file sharers like are larger companies with the resources needed to go through the traditional court system, thus making it impossible for the defendant to simply opt out.
But if large companies aren’t the ones filing the cases, at least not at this early stage, who is? Also, who is most likely to benefit from the CCB has time goes on?
We have some early clues to that already. Between the structure of the CCB and the cases already filed, there are a few things we can predict comfortably, even if we don’t know the future of the CCB as a tool.
With that in mind, here are three groups of rightsholders that stand to gain the most from the CCB.
1: Photographers and Visual Artists
This is the most obvious group. Photographers have always faced a daunting challenge in protecting their work online. The internet made it incredibly easy to share photographic works and photographers have watched, largely without recourse, as their images have been used in a variety of ways, including commercially.
This has led us down some difficult paths. We’ve seen mass litigation against news agencies, paparazzi repeateldy sue celebrities over Instagram post and lots of demand letters filed on behalf of photographers. The latter approach, often referred to as “speculative invoicing” has grown incredibly popular with photographers as a series of companies have been created to provide that specific service.
But, even with all those tools, most photographers were more or less powerless.
The cost of litigation meant that, in many cases, demand letters had no teeth. To make matters worse, Richard Liebowitz, the lawyer behind much of the mass litigation in this space, was so problematic that he was suspended from practice.
In short, it’s long been clear that a new approach is needed.
That, in turn, is what the CCB provides. While it is unclear how many respondents will participate. The CCB provides a low-cost tool for photographers to try and recoup damages for misuse of their images.
It’s a very natural pairing, and it’s easy to see why photographers have been some of the most enthusiastic right out of the gate.
2: Claimants Targeting Large Companies
Large companies may not be breaking down the door to file cases with the CCB, but they appear heavily on the respondent side. Some companies currently targeted by CCB cases include Apple, YouTube, The Walt Disney Company, Columbia Records and Townsquare Media.
For a claimant wanting to take action against a larger company, the CCB likely makes sense. With no lawyer required and modest filing fees, the CCB is something of an equalizer. The company can not
However, the CCB also makes sense on the respondent side, as the cost of defending even a modest copyright infringement lawsuit can reach into the tens of thousands of dollars. This can be an inexpensive way to put an end to such a case, even if it is completely frivolous.
This is especially true since the CCB has a very limited appeals process, meaning that it can put an end to a case quickly and decisively.
In short, while the CCB makes it easier for individuals and small businesses to file cases against larger companies, it’s also easier for those companies to respond and the risk of massage damages is, for the most part, eliminated.
This one might seem odd, as one of the most-touted features of the CCB is the lack of a need for a lawyer. However, while some claimants are representing themselves, it’s also very common for them to have brought in a lawyer.
While we can’t know how many of these legal cases are pro bono versus paid, it’s safe to assume that many, if not most, are paying for the service. While legal fees could eat up a significant part of any winnings, it’s also easy to see why claimants would still choose to do so.
First, the streamlined nature of the process means that legal costs are kept to a minimum. Second, even though the process is targeted at laypeople, there’s an obvious advantage to having someone who is familiar with both the law and the legal process take the lead.
For lawyers, this could wind up being an interesting new option for clients, especially since it’s possible to get damages (albeit limited damages) on works that were not registered in a timely manner.
It’s also simply true that many clients either can’t afford a full lawsuit or the damages likely won aren’t worth the expense. In those cases, this might be a new way to steer clients.
One of my future projects I’m planning on is doing an actual statistical analysis of the cases filed. While I want to wait for more cases to come in and, perhaps, for some outcomes, it’s interesting to look at how the CCB is being used today and try to understand who will gain the most from it.
To that end, it seems like several use cases are becoming more common than others. Photographers are increasingly making use of the CCB, in particular to target larger companies, and lawyers are finding a use for the CCB in cases where a regular lawsuit doesn’t make sense.
Though the long-term usefulness of the CCB is still up in the air, this illustrates the people who fell through the cracks of the regular copyright process and those for whom the CCB is, at the very least, a ray of hope.
It will be interesting to watch the CCB over the coming weeks and months, especially as responses and decisions start coming in.