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

23 Pages Posted: 3 Apr 2019 Last revised: 11 Apr 2019

See all articles by Ben Depoorter

Ben Depoorter

UC Law, San Francisco; Stanford Law School Center for Internet & Society; Ugent - CASLE

Date Written: April 2, 2019


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

Suggested Citation

Depoorter, Ben, If You Build It, They will Come: The Promises and Pitfalls of a Copyright Small Claims Process (April 2, 2019). Berkeley Technology Law Journal, Vol. 33, 2018, UC Hastings Research Paper No. 319, Available at SSRN: https://ssrn.com/abstract=3364674

Ben Depoorter (Contact Author)

UC Law, San Francisco ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Stanford Law School Center for Internet & Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Ugent - CASLE ( email )

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