Can you sue in state small claims court over copyright infringement? Sorry, but no.

The West Seattle Blog has an interesting post about a case of copyright infringement of a photo. Here's the story in a nutshell: a photojournalist named Christopher Boffoli took a photo of a restaurant called Beato, which ran in the WSB last November. The building that housed Beato was subsequently put on the market, and the online real estate listing contained Boffoli's photo. This, despite that the real estate firm had not obtained permission. And, "This situation was made more odious by the fact that, when I discovered my image online, it was being used with a Commercial Broker’s Association (CBA) copyright flag on it," Boffoli told the WSB.

Sounds like a slam-dunk case of copyright infringement. Not the worst case in the world, one that would involve huge damages, but certainly Boffoli deserves redress. He tried to get some from the listing agent, who he says ignored his demands. And so Boffoli filed suit in small claims court in King County, Washington. And he won: the judge awarded him $1,000 in damages (the amount he demanded), plus court costs.

I'm glad Boffoli got his redress, and the infringer her comeuppance. And I hate to rain on the parade. But the fact is that the small claims judge had no authority to hear this case, and the defendant has a solid argument on appeal (assuming it wasn't waived) that the case should be dismissed. Federal law is clear: only federal courts may hear copyright infringement cases:

The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases.

28 U.S.C. § 1338(a) (emphasis mine). One commenter to the WSB post addresses the jurisdictional issue by arguing:

For those arguing the jurisdiction of [small claims court], you need to separate the claims correctly. Chris was making a claim about the unlawful use of his property, not the copyright. The fact that it was copyrighted in this case is just support for his ownership claims.... The claim against theft is completely independent of a copyright claim in that it can (and did) stand alone.

Nice try, but that argument doesn't work. You can call the defendant's actions "theft," unfair competition, fraud, or whatever label you can come up with, but the bottom line is that Boffoli is complaining about the fact that the defendant copied and displayed his photograph. Thus any equivalent state claims are preempted by the federal Copyright Act. See 17 U.S.C. § 301. (This is an oversimplification of the very messy preemption doctrine, but I think this is a pretty clear case.)

So that's what the law actually is. But should it be so? While I haven't fully thought through the implications, I can certainly see an argument that state courts, including small claims courts, should be permitted to adjudicate small-dollar copyright cases. If the photographer says he just wants to recover his normal license fee of a few hundred or a few thousand dollars, why not? A federal case is a pretty blunt (and expensive) instrument for minor disputes, and I think it's certainly worth exploring alternatives to full-blown federal lawsuits for incidents like the one in which Boffoli found himself embroiled. Cf. Mark Lemley & R. Anthony Reese, Reducing Digital Copyright Infringement Without Restricting Innovation, 56 Stanford L. Rev. 1345 (2004) ("An alternative proposal to reduce the cost of enforcement is to create some sort of quick, cheap arbitration system that enables copyright owners to get some limited relief against abusers of p2p systems.").