How to respond to the emergence of assembly-line copyright-suit filers without undermining the right of content owners to stop unauthorized reprints that go beyond fair use? Max Kennerly raises the possibility of steering rights owners into agency complaints or arbitration as an alternative, or at least precondition, to court action. That might slow down the business model of groups like RightHaven, which has demanded in terrorem sums from mom-and-pop bloggers and other infringers and even asked courts to order seizure of the domains of otherwise legitimate target websites.
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A very good piece. While the genesis of the system was born of good intentions, and worked pretty well for a very long time, given the way the world works now it is fair to say the whole copyright enforcement system is hopelessly skewed, in a lot of ways. I wrote about one of them — the now inequitable workings of copyright fee shifting — here.
Why Can’t Copyright Trolls Be Compelled Into Agency Hearings Or Arbitration?…
[Update: I somehow missed Ron Coleman’s earlier take on the article, but it’s required reading if you’re interested in the subject. Coleman and Walter Olson both seem on board with, as Olson words it, "steering rights owners into agency complai…
Indeed, I think these types of copyright claims are more appropriate for agency investigation or arbitration than employment discrimination or personal injury suits. The latter two are typically dependent upon oral testimony (and thus the credibility of the witnesses, which needs to be assessed through live testimony), while the former could reasonably be evaluated solely on the documents.
Just taking that ASSE case I referenced as an example, all the agency would really need, other than the complaint filed, is an answer from the defendant admitting or denying the material facts about the extent and nature of republication.
And that would be it; the investigator or arbitrator could then look at those documents, the core of which would be fewer than 20 pages, and start discussing with the parties a reasonable settlement. That would obviate the need to bring on attorneys for hundreds of dollars an hour, and would keep these small potatoes matters from clogging our federal courts.