If You Build It, They will Come: The Promises and Pitfalls of a Copyright Small Claims Process

Abstract

Copyright law provides fertile ground for small claims adjudication: an abundance of straightforward infringements claims remain unpursued because the costs of litigation in federal courts outweigh the monetary value at stake in many individual disputes. This Article explains how a small claims process can infuse accountability and deterrence into copyright law by bringing to life meritorious infringement claims that otherwise remain negative value lawsuits, while discouraging dubious, opportunistic infringement allegations. Applying incentive analysis, this Article then examines Congress’s most recent proposal to institute a small claims board. It finds that the CASE Act’s statutory damage provisions are mismatched with the voluntary nature of the small claims process. The CASE Act is likely to induce opportunistic claims as well as bluff opt-outs by defendants, rendering the small claims board ineffective. Ironically, the ambitious nature of the CASE Act system inadvertently pushes out adjudication of the very small claims that it seeks to salvage.

Keywords: copyright, piracy, small claims, litigation, negative value suits

JEL Classification: K1, K19, K42