May 16, 2022: CCB Panel Q&As
Will challenges to terminations of conveyances (17 USC 203, 304I) be within the jurisdiction of the CCB?
No. Termination cases cannot be heard by the CCB. The CCB can only hear three types of claims: (i) infringement claims; (ii) claims for declarations of non-infringement; and (iii) claims under 17 U.S.C. 512(f) for misrepresentations in a DMCA notice or counter-notice.
If I send a takedown request to an online service provider to take down infringing content located on its site, can I submit a claim to the CCB against the OSP if it refuses to take down the infringing content?
The CCB only has jurisdiction to hear claims against an online service provider (OSP) if the OSP that is referring, linking, or storing the alleged infringing material on behalf of a user (as those terms are defined in the DMCA, found in 17 USC 512(b)(c) and (d)) in limited circumstances. Specifically, the CCB may only hear claims against an OSP where the OSP has been notified of the infringement through a properly submitted takedown notice under the DMCA but fails to expeditiously remove or disable access to the material identified in the notice.
If you have not filed an infringement suit in federal court to protect your work, can a respondent use that information as proof of your standard business practice and therefore have it denied by the CCB?
No. There is no requirement that you sue in federal court before bringing a case before the CCB. As a general matter, the CCB does not have jurisdiction to hear a case that was brought or is pending in federal court.
How does the requirement of a copyright registration work if an accused infringer is filing the claim?
When an accused infringer brings a claim before the CCB seeking a declaration of non-infringement, the work at issue in the case does not need to be registered with the U.S. Copyright Office. However, if the copyright owner (who is the respondent in the case) files a counterclaim alleging infringement by the claimant/alleged infringer, then the copyrighted work would either need to be registered with the Office or a registration application must at least be pending with the Office prior to the bringing of the counterclaim.
Since it’s necessary to submit a registration application before bringing an infringement claim with the CCB, how long is copyright registration taking on average, and is it possible to expedite a registration application so a CCB claim can advance?
The average copyright registration pendency is between three and four months. How long a particular registration application will take depends on numerous factors, such as whether there is a need for correspondence between the examiner and the applicant and whether the application is filed electronically or through traditional mail. If you are involved in a CCB case, you may pay a $50 fee to have examination of your registration application expedited. The fee is significantly less than the $800 fee for special handling, which applies when the work being registered is not involved in a CCB claim. Importantly, a request for expedited registration can only be made after the registration application is filed with the Office and only after the CCB claim is part of an active proceeding. When an expedited registration is requested, the Office will use its best efforts to examine and issue its decision on the registration within 10 business days.
Does the CCB notify the claimant if a respondent opts out?
Yes, the CCB will notify the claimant if a respondent opts out.
What is the cost to register a designated a service agent with the Copyright Office?
A business entity may register an agent with the Copyright Office to receive service on its behalf and the fee to do that is $6.
Can the CCB hear disputes about copyright ownership?
The CCB cannot hear ownership disputes. The CCB can only hear three types of claims: (i) infringement claims; (ii) claims for declarations of non-infringement; and (iii) claims under 17 U.S.C. 512(f) for misrepresentations in a DMCA notice or counter-notice.
If the CCB renders a final determination, are there any provisions for the prevailing party to be able to enforce the CCB’s determination?
Yes. If a losing party fails to comply with a determination by the CCB, the prevailing party can go to federal district court in the District of Columbia or any other appropriate district court to enforce the CCB’s determination. This must be done within one year after the determination is issued by the CCB, or after any reconsiderations or reviews by the CCB or the Register of Copyrights are completed, whichever is later.
Is there a limit to the number of cases a claimant can bring to the CCB?
Yes. In a 12-month period, a claimant can bring up to 30 cases. There is a similar limitation on attorneys and law firms. Law firms are restricted to filing 80 cases in a 12-month period and attorneys are limited to filing 40 cases within that period.
Is access to the CCB available to claimants who are not U.S. residents?
Yes. Foreign residents can file claims with the CCB. In general, claims cannot be brought against foreign residents as respondents, but if a foreign resident has filed claims with the CCB, the respondent can bring counterclaims against the foreign resident-claimant.
Does the CCB process require attendance in person, or is a case largely heard remotely?
The CCB process is entirely remote. Proceedings will be facilitated on paper and via video conferencing. Parties will not have to travel to the U.S. Copyright Office in Washington, DC to participate in CCB proceedings.
Who can represent rightsholders in CCB proceedings? Are there limits to how many cases they can handle for all of their clients per year?
A rights holder can represent themselves or they can use a legal representative to represent them. Law firms are restricted to filing 80 cases in a 12-month period and attorneys are limited to filing 40 cases during a 12-month period. Rights holders can also use legal clinics to represent them.
Why would a respondent accused of infringement by a claimant not simply opt out of the process?
There are several reasons that a respondent who has been accused of infringement would choose not to opt out:
- Money Saved by Not Hiring an Attorney: The CCB process is simplified so that there is no need to hire an attorney. The largest cost associated with bringing or defending copyright cases is the cost of hiring an attorney. In fact, legal fees can often exceed the actual damages in a copyright infringement case. Giving parties the practical ability to defend themselves without paying tens of thousands of dollars (or more) to an attorney will encourage parties to participate.
- Cap on Damages Significantly Limits the Defendant’s Liability: By capping damages that the losing party would need to pay, the CCB process dramatically reduces an alleged infringer’s potential liability. In a copyright infringement case filed in federal court, a successful plaintiff may be awarded up to $150,000 in statutory damages per work infringed. In contrast, a successful claimant may only be awarded up to $15,000 in statutory damages per work infringed per the CCB’s small claims process—10% of the maximum damages available in federal court. A CCB proceeding is also limited by the total amount of damages that can awarded in each case to no more than $30,000, as compared to federal court, which has no limit. Parties who may be liable for tens of thousands of dollars or more if the copyright owner brings a copyright infringement case against them in federal court may be unwilling to take that risk and will instead want to limit their liability by choosing to proceed in the small claims court.
- Unlike Federal Court Judges, the CCB Officers are Copyright Experts: At least two of the three small claims court judges (called “officers”) have substantial experience in the evaluation, litigation, or adjudication of copyright infringement claims and have represented or presided over a diversity of copyright interests, including those of both owners and users of copyrighted works. In contrast, federal court judges are generalists by design, hearing cases on a range of criminal and civil issues. Thus, a party who believes that they have a meritorious defense(s) against copyright infringement claims or viable counterclaim may choose to proceed with the CCB process, with the benefit of adjudicators who are dedicated experts on copyright law.
- No Travel Required: In-person appearances by parties are not required. Instead, each party will make its case remotely by means of written submissions, hearings, and conferences that take place online. The ability to participate remotely in the proceedings without the need to travel to a federal courthouse will be a significant factor in determining whether a party opts out or not because of the cost savings and convenience relative to the same case being brought in federal court.
- Quicker Process than Federal Court: The CCB process is streamlined and therefore allows for faster resolution of the dispute than in federal court. A party who believes they have a meritorious defense(s) against copyright infringement claims is likely to choose to proceed with the small claims process in order to more quickly resolve any legal claims against him/her/it.
- Insurance Considerations: Many business insurance policies require businesses to promptly notify their insurance carrier of any pending lawsuits. The insurance carrier may require that the claim be litigated before the CCB rather than risk going to federal court because of the significant reduction in potential liability before the CCB as well as the drastically reduced costs for defending against claims as compared to federal court.
When all the incentives are considered together, they certainly provide a strong incentive to participate in the system and to not opt out.
Are CCB decisions appealable?
In limited circumstances, a CCB decision may be challenged. These are:
- Request for Reconsideration: If either the claimant or the respondent is unhappy with the final determination by the CCB, they may challenge the determination by requesting reconsideration of, or an amendment to it, provided they identify a clear error of law or fact material to the outcome, or a technical mistake by the CCB.
- Register Review: If the CCB denies the request for reconsideration, the aggrieved party can request a review by the Register of Copyrights. The review by the Register is limited to consideration of whether the CCB abused its discretion in denying reconsideration. The Register will either deny the request or send the proceeding back to the CCB for reconsideration of issues specified by the Register and for issuance of an amended final determination (this is called a “remand”).
- Appealing to Federal Court: After reconsideration and review by the Register have been completed or deadlines have passed without a request for either reconsideration or review, the losing party has a limited right to appeal the decision to federal district court. The losing party may seek an order from a federal district court requesting the court vacate, modify, or correct the CCB determination only if (i) the CCB’s final determination was the result of fraud, corruption, misrepresentation, or other misconduct; (ii) the CCB exceeded its authority or failed to render a final determination; or (iii) in the case of a default or determination based on a failure to prosecute, if it is established that the default or failure was due to excusable neglect
Do CCB decisions establish legal precedent?
CCB decisions cannot be cited or relied upon as legal precedent before any court or tribunal, including the CCB itself.
How does the CCB impact libraries and archives?
Unlike other entities that can opt out on a case-by-case basis, libraries and archives are permitted to opt-out preemptively, on a blanket basis (i.e., they may opt out of all cases at one time, before they are notified about a case). More information about the library and archives opt-out, and a list of those libraries and archives that have preemptively opted out, can be found here.
What does it mean to “opt out” of participating in the CCB?
To “opt out” means that a respondent chooses not to participate in a CCB proceeding. If a respondent opts out of the proceeding, the proceeding is dismissed. (The claimant is free to bring their claim as a suit in federal court.). The opt-out form can be found here. More information about opting out can be found here.
Will there be a mechanism through which students in law school clinics could represent clients before the CCB?
Yes. Students in law school clinics, or in pro bono organizations with an affiliation to the student’s law school, can represent clients before the CCB on a pro bono basis under the guidance of a qualified supervising attorney. Student-representatives must have completed: (i) their first year at an American Bar Association accredited law school; (ii) training in copyright law as determined by their supervising attorney; and (iii) a review of the CCB regulations and the CASE Act statutory text. Student-representatives must also have the client’s written consent for the CCB representation. The CCB will provide a directory on its website of law school clinics and pro bono legal services organizations that have expressed interest in providing pro bono law student representation before the CCB.