US Copyright Claims Board: what you need to know
On December 8, 2021, the US Copyright Office provided content creators and copyright practitioners another peek behind the curtain of the Copyright Claims Board (CCB), a new forum for copyright claims up to $30,000 expected to begin in the spring.
Since the enactment of the Copyright Alternative in Small-Claims Enforcement Act (CASE Act), the Copyright Office has been reviewing public comments and proposing regulations to provide details on CCB proceedings. The Copyright Office’s latest proposed regulations describe the processes for default judgments, public access, attorney’s fees, discovery, appeals, and more. The Copyright Office previously proposed regulations explaining the initiation of claims, service of process, fees, and types of claims covered by the CCB. Here are some highlights from the proposed regulations published on December 8 in the Federal Register.
Minimising harassing and frivolous claims
Because of the ease of bringing a copyright claim before the CCB (by design), copyright practitioners have expressed concern about the potential for increased harassing or frivolous claims. The new proposed regulations aim to ease these anxieties by limiting the number of proceedings a party can file in a twelve-month period to ten. Attorneys are limited to bringing 40 proceedings on behalf of a particular claimant in a twelve-month period. These restrictions are also meant to “ensure that the CCB is able to effectively manage its docket” and not be “overwhelmed by just a few claimants".
Permissive attorney’s fees and costs
Another deterrent to frivolous claims is the prospect of paying an opposing party’s attorney’s fees and costs. Under the proposed rules, the CCB “may” award reasonable costs and attorney’s fees up to $5,000 if it determines that a party pursued a claim or defence for a “harassing or other improper purpose, or without a reasonable basis in law or fact.” The award “may” be increased beyond $5,000 in “extraordinary circumstances”.
The ability to recover attorney’s fees and costs in the face of a frivolous claim will be largely welcomed, but $5,000 can be a drop in the bucket when mounting a successful copyright defence, even if the claim is frivolous and is being adjudicated in an expedited venue. Further, because the fee-shifting provision is permissive rather than mandatory, parties will likely be required to pay their own way in the majority of cases. Although the Copyright Office considered a mechanism for the quick disposition of claims prior to discovery with mandatory fee-shifting, it ultimately rejected the proposal.
Disciplinary authority over attorneys
In another attempt to ensure the filing of justified claims, the proposed regulations require that attorneys be in good standing to appear before the CCB. The CCB will also have disciplinary authority over attorneys. Time will tell whether the CCB aggressively regulates attorney conduct.
Relaxed rules
Unsurprisingly, the Copyright Office confirmed that the CCB will not follow the Federal Rules of Civil Procedure or the Federal Rules of Evidence. The CCB is intended to be a flexible forum as compared to the more formal federal court system and will likely be less intimidating to pro se parties.
Expedited discovery
Limited discovery will be allowed in CCB proceedings under the proposed regulations, such as the production of documents, written interrogatories, and written requests for admissions. Requests for additional discovery will be approved upon a showing of good cause. Expert witnesses will be disfavored. Protective orders may be issued for good cause at the request of parties.
Quicker process for claims under $5,000
The Copyright Office revealed an alternative adjudication scheme within the CCB for claims valued less than $5,000. Claimants with smaller claims can participate in an even more streamlined process where one judge, instead of a three-judge panel, will decide the claims. Discovery will be more expedited for these claims.
Appeals limited
If a party is not satisfied with the CCB’s decision, it can seek reconsideration from the CCB as well as review by the Register of Copyrights. As expected, there is no right to an appeal in federal court, but a claimant can ask a federal court to enter a judgment if the respondent fails to pay damages or otherwise comply with the relief awarded by the CCB. Importantly, decisions by the CCB are not precedential, meaning a decision by the CCB in one case may not be followed in the next case.
Access denied
Although CCB proceedings will typically occur online or by phone, they will not be open to the public. This is a missed opportunity in which the Copyright Office could have allowed the public to access the workings of government and learn more about copyright law. Closing the CCB will also make it more difficult for the public and press to provide oversight and assess the effectiveness of the new forum. On a positive note, filings from parties and decisions from the CCB will be publicly accessible online.
Parting thoughts
It is important to remember that the CCB is voluntary. Claimants can bring a copyright claim in federal court, and respondents can opt out of the CCB. Just remember to opt-out within 60 days of receipt of the claim to preserve the right to litigate in federal court.
The Copyright Office tentatively plans to launch the CCB in spring 2022, but this may be extended until June 25, 2022. Until then, you can submit comments to the CCB on these and other proposed regulations.
Jason Bloom is a partner at Haynes Boone. He can be contacted at: jason.bloom@haynesboone.com
Michael Lambert is an associate at Haynes Boone. He can be contacted at: Michael.Lambert@haynesboone.com
