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On December 27, 2020, then-President Donald Trump signed into law the Copyright Alternative in Small-Claims Enforcement Act of 2020 (“CASE Act”). The CASE Act directed the Copyright Office to establish the Copyright Claims Board (“CCB”), a three-judge panel to serve as a voluntary forum in charge of deciding small copyright claims that do not exceed $30,000.
The CCB had until December 27, 2021, to open its doors but could extend that date by 180 days for good cause. It was unable to meet the initial deadline and the CCB is set to start functioning in Spring 2022, but with Spring coming to end it seems as though they might take up to the June 25, 2022, deadline to start up. The CCB is set to give less sophisticated parties a forum to present their claims in a much more cost-effective, flexible and streamlined manner.
Initially, the filing fee was $100, therefore fulfilling the statutory requirement of having total filing fees be at least $100. Nonetheless, upon revision, the US Copyright Office (“the Office”) considered that a single filing fee model for $100 might have proven to be cost-prohibitive for many claimants, given the voluntary nature of the CCB.
In order to comply with the statutory requirement while also making the CCB more appealing to potential claimants, the Office decided on a two-tier fee system with an initial payment due upon filing ($40) and a second payment due once the proceeding becomes active ($60). This system ensures that the sum of the filing fees will only be paid once the respondent has not opted out of the CCB, yet the initial $40 fee is believed to be high enough to deter frivolous claims.
The filing fee is extremely competitive when compared to the $400 filing fee the same claimant would have had to pay in order to submit the same claim before a Federal Court. It is important to note that there is no fee for filing counterclaims. Attorney fees are capped at $5,000 and will only be awarded if a party pursued a claim, counterclaim or defense for a harassing or other improper purpose, or without a reasonable basis in law or fact.
Before the existence of the CCB, a rightsholder could only bring a claim to federal court once his works had been registered. A claimant can file his claim once he has submitted a work for registration; however, the work must effectively be registered before the CCB issues a decision. The only claims that can be filed are declarations of non-infringement and claims for misrepresentation under the Digital Millennium Copyright Act made in connection with a takedown notice. The CCB cannot hear claims by or against any federal or state governmental entity. The claims will be filed through an electronic filing system (“eCCB”), where a claim form can be found. The form will ask the claimant to include certain key information, including but not limited to:
- Identification of all parties,
- Identification of an address for each respondent, excluding the case where the claimant can certify that the statute of limitations is likely to expire within 30 days of the date the claim is filed and provide the basis for the belief that finding the respondents address is challenging and time-consuming,
- Claimant’s phone number, email address, and mailing address,
- The claim the rightsholder is asserting,
- The relevant facts,
- When the infringing activity began and ended, if applicable,
- The harm they have suffered due to the alleged activity and the relief they are seeking, which may include an estimate of such relief, and
- Certification that affirms that they have confirmed the accuracy of the information.
It is important to note that monetary damages will have a $30,000 limit and statutory damages will have $15,000 limit per proceeding. Regardless, the total monetary award cannot exceed $30,000, excluding attorney’s fees and costs. In Federal Court, the range for statutory damages is $750-$30,000 per work for innocent infringement. The range can even be raised to $150,000 in cases where willful infringement is proven, but in the CCB willfulness will not be considered.
Representation is recommended, but not required in CCB cases. Pro se parties may present claims and these will be liberally construed. Law students may also represent parties while complying with the applicable law that governs the matter. The procedure and the claims form are created for pro se claimants and have their specific characteristics in mind.
One of the key components of this new forum is that it is voluntary, which means that a respondent can opt out and the claim will be dismissed without prejudice. The voluntary nature has been heavily questioned by critics who believe this will disincentivize potential claimants who will not want to risk paying the initial filing fee only for the respondent to opt out. However, because the CCB operates under the Office, which is a part of Congress, and Congress is constitutionally forbidden from hearing cases and controversies, the only way to avoid an eventual constitutional conflict was for the CCB to be voluntary for both parties.
Once the claim is filed, the respondent has 60 days as of the receipt of the claim to opt out and therefore maintain the right to litigate in federal court. If the respondent fails to opt out within the 60-day period the proceeding becomes active, and the respondent is bound by the CCB’s decision. After the 60-day period, the CCB issues a scheduling order with a 30-day deadline for the respondent to file a response, which may very well include counterclaims. These counterclaims must either (I) arise under section 106 or section 512(f) [of the Copyright Act] and out of the same transaction or occurrence that is the subject of a claim of infringement, a claim of noninfringement or a claim of misrepresentation, or (II) arise under an agreement pertaining to the same transaction or occurrence that is the subject of a claim of infringement if the agreement could affect the relief awarded to the claimant. Nonetheless, claimants are not entitled to opt out of a counterclaim because of the fact that through the claim the claimant has opted into the CCB, complying with its voluntary nature.
Similarly, to the claim form on the eCCB platform respondents will be able to rely on a response form. Respondents in the form will include:
- Respondent’s address, phone number and email address,
- Defenses beyond just disputing the claim (the form will even include a list of common defenses),
- Identifying information and details concerning the controversy, and
- Certification that affirms that they have confirmed the accuracy of the information.
Procedure and Structure
Procedural rules will be more flexible and malleable for CCB claims, as to accommodate for the less sophisticated litigants. The Copyright Office Report noted, “[t]he hallmark of a small claims proceeding is that traditional rules of civil procedure are significantly relaxed in order to save litigants effort and expense.” Discovery will be limited to the production of documents, written interrogatories, and written requests for admission. Third-party subpoenas, depositions, expert witness testimony and any additional discovery may be permitted only in exceptional cases. The CCB must only follow existing copyright precedent and statutes, but also abstain from creating new law. If there were to be conflicting precedent, the judges of the CCB must apply the law of the federal jurisdiction where the action could have been brought. The CCB will function online and remotely, the hearings will be on matters of fact or law.
The CCB team is comprised of a staff of copyright attorneys with at least three years of experience, an assistant, and a paralegal to assist the Officers. The Librarian of Congress appoints the Officers on the Recommendation of the Register of Copyrights. The three-judge panel includes: one judge with substantial experience in alternative dispute resolution and copyright law while the other two will have at least 7 years of legal and copyright litigation experience. These judges will serve renewable six-year terms. All decisions will be majority (2/3) or unanimous decisions (3/3) and parties will have a 30-day period as of the decision to request reconsideration from the CCB. Only once the request for reconsideration is denied will the parties have an additional 30-day period to request review from the Register of Copyrights. In the exceptional cases of decisions based on fraud, corruption, misrepresentation, or other misconduct or if a party refuses to comply with a judgment, will a federal court be allowed to review a CCB decision.
The CCB is being created as a pilot court to serve a niche, yet prevalent, source of disputes as is the copyright infringement of works. Once the CCB has operated for 3 years, the Register of Copyrights is ordered to file a report to Congress analyzing the CCB’s effectiveness. The overall success or failure of a specific niche court like the CCB will likely serve as an example for the future of dispute resolution.