It doesn’t take online sellers long to learn about the implications of copyright and Intellectual Property (IP) issues, whether they are being accused of infringement by a brand or they’re trying to protect their own brand.
Eric Goldman, a professor and Associate Dean at Santa Clara University School of Law, wrote about a new copyright tribunal mandated by Congress which describes itself as a “streamlined alternative to federal court to resolve copyright disputes involving claims up to $30,000.”
“The Copyright Claims Board (CCB) is available to resolve copyright disputes of a relatively low economic value as an efficient, less expensive alternative to federal court,” it states on its website.
“The CCB is designed to be accessible to pro se parties without formal legal training and others with little exposure to copyright law,” according to the description in the Federal Register. (Pro se is a term meaning parties who are representing themselves without the assistance of a lawyer.)
That sounds like a potentially attractive option for small sellers – just like small claims court is when you have a dispute with an individual or business – but Prof. Goldman pointed out issues that indicated it might not be a viable option in many cases.
Sellers generally encounter IP issues when an ecommerce platform removes a listing after a brand sends it a takedown notice. This can happen in cases even where a casual seller is listing their used sneakers or handbag.
We reached out to Goldman and asked if the new CCB might impact small sellers, given reports of big brands bullying marketplace sellers and even “makers” on Etsy aggressively targeting other sellers, for example.
“Maybe?” he replied. He described how the caps may limit its usefulness to brands, who would likely prefer their current method of enforcement through federal court, and the fact the CCB cannot grant injunctions – issues he describes in detail on his recent blog post.
Prof. Goldman explained in his response to EcommerceBytes:
“A copyright owner can “only” bring 30 claims a year in the CCB. This cap makes it unhelpful for the big-brands’ mass-enforcement efforts we frequently see at the online marketplaces, which can involve hundreds or thousands of defendants at a time. Those mass-efforts will likely stay in federal court, not move the CCB.
“Individual disputes between online marketplaces might go to the CCB, but the CCB’s dollar cap ($15,000 per work) may be too low to make such efforts worthwhile. (The CCB cannot grant injunctions, so damages are the only reason to go to the CCB).
“I could see some photographers or artists using the CCB to pursue small-scale online marketplace vendors who are selling items that contain their copyrighted materials. However, if those copyright owners are serious about shutting down infringement, the 30 claims/year cap at the CCB will be restrictive on them too.
“Perhaps this exercise shows why I’m not sure what to make of the CCB. The CCB’s rules could mean that not many copyright owners will find it solves their problems.”
So while we’ve heard stories of online sellers having utilized small claims court to good effect when in disputes with buyers, the Copyright Office’s Copyright Claims Board may not prove as useful when the issue involves copyright infringement.