Re: Arbitrate Infringement?

On 10/10/97, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> On Thu, 9 Oct 1997, Michael Bradley <michael[_at_]vision-soft.com> wrote:
> >
> > Given an ordinary arbitration clause ("all disputes will be
> > arbitrated"), can a copyright infringement complaint be arbitrated,
> > or must it go the federal court?
>
> I'm by no means an expert in alternative dispute resolution, but my
> understanding is that the Federal Arbitration Act would compel the
> arbitration. I believe that 9 USC 2 and 4 are the relevant sections
> here. Anyone with more ADR background want to check me on this?

Part I of Title 9 is the original Fed. Arb. Act; Part II implements our accession to the UN (or "New York") Convention on the Reciprocal Enforcement of Arbitral Awards. In Part I, section 2 is the core of the FAA, essentially placing written agreements to arbitrate in transactions affecting interstate commerce on the same footing as other contracts. Sections 3 and 4 deal with staying litigation in light of an arbitration clause and compelling arbitration of the dispute.

Although the Supreme Court showed initial hostility to the arbitration of statutory claims under pre-dispute arbitration clauses, as manifested in the Wilko v. Swan case in 1953 (securities law claims not arbitrable), this antipathy began to change very dramatically in 1985. In rapid succession a series of Supreme Court decisions found that antitrust claims arising from international transactions are arbitrable (and almost certainly, arising from domestic transactions as well), overruled Wilko and found that securities claims under both the '33 and '34 acts are arbitrable,and found that various employment discrimination claims are arbitrable (in the nonunion context). Lower federal courts held that claims under the Fair Labor Standards Act and other employment legislation are arbitrable. I have not checked recently to see if there are any copyright arbitration cases, but the bottom line is that a broad arbitration clause encompasses both common-law and statutory claims arising from the parties' relationship. The parties can, of course, expressly limit the scope of their arbitration clause. Also, the Supreme Court held that there would have to be a clear congressional expression of non-arbitrability in order for a statutory claim to be non-arbitrable. The copyright infringement arbitrability question would, I presume, arise from a licensing agreement that includes an arbitration clause. Again, without specifically researching the question of copyright infringement arbitrability, I see little doubt that such a claim would be arbitrable.

John R. Allison
Graduate School of Business
University of Texas at Austin
allisonj[_at_]mail.utexas.edu Received on Sat Oct 11 1997 - 16:48:28 GMT