Former Head Of Australian Music Industry's Anti-Piracy Efforts Calls For An Infringement Small Claims Court

from the ask-yourself-who-benefits-most...-and-who's-pushing-for-it dept

An interesting but mostly bad idea has reared its head again: a small claims court for copyright infringement. This time, it's an anti-piracy investigator (and former policeman) pushing the idea, springboarding off the ridiculous 33-month sentence meted out to Phillip Danks. (h/t to Techdirt reader jtomic)

Michael Speck, an independent Australian anti-piracy investigator and former policeman, said the sentence was fair but added the case showed that Australia needed a separate, specialised court that would make it less costly to prosecute those who downloaded or distributed copyright infringing material.

"It's high time that a specialist small claims tribunal be established to deal with low-level criminal and civil [copyright] infringements [in Australia]," Mr Speck, who was once the head of ARIA's music industry piracy investigations unit, said.

"The vast majority of victims of copyright infringement can't afford to go before a court in this country. It's incredibly expensive to prosecute a case and it's very easy to stifle a civil or criminal prosecution," he added.

It's always suspect when someone who makes their money fighting infringement calls for a small claims court to handle infringement. (You know, rather than the artists themselves...) While some creators would welcome the idea and find the lower barrier to entry (so to speak) better than the current system, the real reason for Speck to be pushing this is the increased number of infringement cases that could be processed. Win-win for those in the anti-piracy business, but of little real use to anyone else.

For one thing, the notion of a small claims court undermines the argument that statutory damages are necessary to deter infringement. By definition, a small claims court wouldn't (or shouldn't) take on cases where these damages are being pursued. If faster, smaller cases can take a bite out infringement, then it's clear statutory damages vastly overvalue the copyrighted creations.

Second, proving infringement isn't nearly as simple as pursuing debt or making your neighbor pay for damage done to your vehicle when the tree he tried to cut down fell in your driveway. (Actually, the latter case is probably extremely complicated.) What it would encourage, however, is the filing of multiple suits in hopes of obtaining easy default judgements. There's also the question of how small, independent rights holders are going to determine guilty parties, something even well-heeled studios and labels have trouble doing.

This idea is seductive because it appears to offer quick, cheap resolutions in copyright owners' favor. But the reality will be far different. Because of what's required to unmask infringers, this system will end up being just another tool for major players to sue minor infringers. The artists at the bottom -- those who might see this as a panacea -- will still face an uphill battle when attempting to target infringers.

Speck points out that it's very easy to "stifle a civil or criminal prosecution." What makes him think that this will be less likely in small claims court? The only reason he would see this as a solution is if he feels it will be easier to push dubious cases past judges in these courts. If so, then small claims court will become a copyright troll haven, something that does very little to deter infringement and contributes greatly to the public's disenchantment with IP enforcement. If Speck is looking to see more grandmothers and 14-year-olds paying out for alleged infringement, small claims court is the way to go.

There are positives to this approach, but they hinge on the limitation (or removal) of statutory damages and built-in safeguards for the accused. Otherwise, this system will simply steamroll the unsuspecting along with the truly guilty.

Filed Under: anti-piracy, australia, copyright, michael speck, small claims