This article is concerned with the question of whether copyright law in the United States is currently equipped to achieve its original goal, set within the U.S. Constitution, to promote innovation and progress. This article suggests that copyright law is not equipped to achieve this goal because a paradox inherent in copyright law is hindering copyright litigation and causing uncertainty. The paradox is found in 17 U.S.C. § 106, which protects transformative works that are derivative, and 17 U.S.C. § 107, which protects transformative works as fair use. Ideally, the federal courts would solve this dilemma by interpreting the appropriate application of these competing protections through numerous case-by-case analyses. However, few cases are currently reaching the courts or are resulting in judicial opinions because the federal court system is ill-equipped for the task due to the expense, time, and damages involved in litigation. For effectiveness and to meet the goals of copyright, copyright litigation must become affordable, accessible, and timely, resulting in more judicial opinions and individual case analyses. To this end, I propose a two-fold plan including (1) reducing statutory damages in copyright cases throughout all levels of litigation, and (2) introducing a small claims copyright court.
Clarifying Uncertainty: Why We Need a Small Claims Copyright Court,
21 Marq. Intellectual Property L. Rev. 105
Available at: https://scholarship.law.marquette.edu/iplr/vol21/iss2/3