Copyright Is Supposed to Help Creators: But Only the Rich Can Afford It

When the framers made provision for copyright law in the U.S. Constitution, they probably didn’t envision a system that favors the wealthy. Yet today, that’s what we’ve got. High litigation costs and slow-moving courts have turned copyright enforcement into a luxury good. Unless you’re sitting on a pile of cash, your rights are often fool’s gold.

Pursuing a single copyright case can cost millions. Face multiple infringers? Good luck. Congress recently tried to help by creating the Copyright Claims Board, a cheaper forum for small-scale cases. But that Board only hears claims up to $30,000 in value. So, the more valuable your claim, the more expensive it is to defend. Which can mean if you’re not already rich, you’re more likely to stay poor.

Infringement as a Worthwhile Investment

The odds grow even longer when you go up against a corporate giant. Deep-pocketed companies can drag out lawsuits for years, betting you’ll run out of money or energy (or both) before they do. Take Amazon, accused of copying the products and designs of third-party sellers on its own site. Or Zillow, just sued by CoStar, owner of smaller rival Homes.com, for allegedly stealing tens of thousands of watermarked images. Even with a strong case, going up against industry leaders can feel futile when significant resource disparities exist.

Consider the years-long battle in Google v. Oracle, where litigation over a few thousand lines of Java API code spanned more than a decade and two separate trials, before ultimately reaching the Supreme Court. Though Google prevailed under the fair use doctrine at the Supreme Court, the case cost both sides tens of millions—well out of reach for the average creator.

In some cases, industry behemoths may even view copyright infringement as a worthwhile investment. Lengthy and costly litigation allows them to build their lead. If they’re eventually forced to pay for infringement, so what? It’s often a rounding error compared to the advantages they’ve gained in the meantime.

We’ve seen a version of this in the privacy arena: tech titans like Google and Facebook playing fast and loose with consumer data, raking in billions, then paying (relatively) modest fines after the fact. Copyright has seen this playbook before, too: in the late 1980s, industry leader Microsoft adopted many elements of (then) upstart Apple’s graphical user interface without permission—acting first and dealing with the legal fallout later. While Apple sued in Apple Computer, Inc. v. Microsoft Corp., the court largely sided with Microsoft, illustrating how even high-profile cases can tilt toward incumbents.

Retailers like Target have also seen their fair share of copyright trouble involving claims of them ripping off the designs of others. Zillow, no stranger to copyright infringement claims itself, may be taking a page from the same script with its most recent activities: move fast (even if it means violating the rights of others) and deal with the consequences later. It all may be worth it in the end.

AI Raises the Stakes

Even those who can afford to sue may face grim prospects. Court battles take years, even decades in some cases. In Klinger v. Conan Doyle Estate, the author won the right to publish new stories using Sherlock Holmes characters, but only after 21 months of litigation over what was in the public domain. Interim relief can be difficult to come by as well. By the time a definitive ruling arrives, the damage is often already done. A (relative) slap on the wrist for the industry leader, while a rival’s prospects may be lost forever.

Fixing this won’t be easy. Lawyers are expensive, and courts are overwhelmed. But as copyright challenges grow, especially in the AI era, we need new ways to help creators reap where they’ve sown. This doesn’t mean that copyright owners should always carry the day—defenses like fair use should continue to play a crucial role in helping copyright law serve its purpose. But copyright’s constitutional mandate remains to promote progress. And it can’t do that if mostly the rich can use it. The Davids deserve a fair shot. But right now, the Goliaths own the battlefield.

Image Source: Deposit Photos
Author: kchungtw
Image ID: 130677098