Filing a Claim with the CCB
What types of claims can be brought before the CCB?
There are 3 types of claims that can be brought before the CCB.
- Infringement claims: Copyright owners can bring infringement claims against those who are allegedly infringing one or more of their exclusive rights in their copyrighted work(s).
- Declarations of non-infringement: When a copyright owner has alleged that a user is infringing their work and either has threatened to take action to enforce their rights (such as in a cease and desist letter) or has sent a Digital Millennium Copyright Act (DMCA) takedown notice, the user can bring an action before the CCB to request that the CCB issue a declaration stating that the activity does not infringe the copyright owner’s exclusive rights.
- Section 512(f) misrepresentation claims: Users who received a DMCA takedown notice from a copyright owner can challenge that notice if they believe the sender knowingly misrepresented in the notice that infringement is taking place. Similarly, creators who sent a DMCA takedown notice and then received a counternotice from the user may challenge that counternotice if they believe the sender knowingly misrepresented that the infringement was removed or disabled by mistake or misidentification.
What type of claims cannot be brought before the CCB?
The CCB cannot hear any claim or counterclaim that is not identified as a permissible claim. So, for example, the CCB cannot hear copyright ownership disputes or disputes related to other forms of intellectual property.
If a claimant has more than one claim, how do they determine whether to file all those claims together or to file them separately?
If a claimant has more than one claim, those claims can be filed together in the same proceeding if the claims arise out of the same allegedly infringing activity, and the total damages recovered by the claimant for all of the claims would not exceed the amount of damages allowable before the CCB.
Who can bring an infringement claim before the CCB? Does the claimant need to be the copyright owner?
Someone who brings a claim before the CCB is referred to as the “claimant.” The claimant must be the copyright owner (or the exclusive licensee) in order to bring an infringement claim.
Who can bring a claim for a declaration of non-infringement before the CCB?
A user of a copyrighted work can bring an action before the CCB to request that the CCB issue a declaration stating that the use of the work does not infringe the copyright owner’s exclusive rights, but only where there is an actual “case or controversy.” In other words, there must be a conflict or dispute between the parties about whether the use is infringing. So for example, the user of a copyrighted work could bring an action for a declaration of non-infringement if a copyright owner has accused the user of infringement and has threatened to take action to enforce their rights (such as in a cease and desist letter) or has sent a DMCA takedown notice. On the other hand, if someone is planning to use a copyrighted work and wants to bring an action for a declaration of non-infringement just to be sure that their use would not be infringement, this would not qualify as an actual case or controversy, and that person could not bring that claim.
Who can bring a claim for misrepresentation in a DMCA takedown notice or counternotice?
In 1998, Congress updated the Copyright Act to help combat copyright infringement online. One of the ways Congress sought to address the issue was by creating the DMCA, which added section 512 to the Copyright Act. One important aspect of section 512 is that it sets out a procedure for copyright owners to get infringing online material and activities taken down (referred to as the notice and takedown process).
Users who received a DMCA takedown notice from a copyright owner can bring a claim for misrepresentation under section 512(f) if they believe the sender knowingly misrepresented in the notice that infringement is taking place. Similarly, creators who sent a DMCA takedown notice and then received a counternotice from the user may can bring a claim for misrepresentation under section 512(f) if they believe the sender knowingly misrepresented that the infringement was removed or disabled by mistake or misidentification.
If a claimant co-owns a copyrighted work, can they bring a claim alone or do they have to bring the claim jointly with the other co-owner(s)?
Yes, they can bring the claim alone, but the respondent can challenge it and request that the CCB dismiss for failure to join a necessary party. In that case, the CCB would hear arguments on the issue from both sides (as to whether the party is necessary) and make a determination, which would take into account any existing precedent in federal court.
Are there limitations on who can be sued in the CCB?
There are certain persons and entities that cannot be sued before the CCB (or may only be sued under certain circumstances):
- Libraries and archives: A library or archives has the option to preemptively opt out (i.e., opt out of any potential claims before the CCB and prevent a claimant from even bringing those claims in the first place). A claimant that wants to bring a claim against a library or archives should first check the list of libraries and archives that have preemptively opted out that is maintained on the CCB’s website to determine whether the entity has opted out of all proceedings in the CCB. If an entity is not on that blanket opt out list, a claimant is free to bring a claim against it just as they would against any other entity or person. If an entity is on the blanket opt out list, a claimant may not bring a claim against it unless the claimant believes that the entity was added to the list improperly (i.e., the entity does not truly qualify for the exceptions under section 108 of the Copyright Act). If that is the case, the claimant may challenge the fact that the entity is on the list by filing their claim with the CCB and including a statement explaining why they believe the entity does not belong on the library and archives blanket opt out list.
- Online service providers (OSPs): The CCB only has jurisdiction to hear claims against an OSP in limited circumstances. Specifically, the CCB may hear claims against an 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)) but only 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.
- Foreign residents: 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.
- Government: Claims by or against a federal or state governmental entity cannot be brought before the CCB.
What can the claimant do if they don’t know the respondent’s identity?
In some instances, a claimant may not know the identity (i.e., the real name) of the alleged infringer. If the infringement occurs online, Section 512(h) of the Digital Millennium Copyright Act (DMCA) provides that a copyright owner can learn the identity of an alleged infringer through a federal court issued subpoena sent to a service provider. The process works as follows:
- The claimant must send a DMCA takedown notice to the service provider requesting that the provider remove or disable access to the infringing content. The claimant has the option to send the takedown notice right away or wait. The takedown notice should include elements such as the notice sender’s (claimant’s) contact information, the location(s) where the infringing content can be found, a description of the copyrighted work, a statement made in good faith confirming that the use of the work is not authorized, and a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Before sending a takedown notice, the claimant should also consider whether the fair use defense is applicable.
- The claimant must submit a subpoena request to a clerk in a U.S. district court. The subpoena request must include a copy of the DMCA takedown notice, a proposed subpoena, and a sworn declaration that the identity of the alleged infringer will only be used for the purpose of enforcing the claimant’s copyright.
- The clerk will review the subpoena request, and if the notice and draft subpoena are in proper form and the declaration is executed correctly, the clerk will issue the subpoena and send it to the claimant.
- Once the claimant receives the issued subpoena, the claimant then sends the subpoena to the service provider. The claimant should also send the DMCA takedown notice to the service provider at this time if they haven’t sent it yet. After it receives the subpoena, the service provider is then required by law to disclose the identity of the alleged infringer to the claimant.
What is the fee the claimant must pay to bring a claim before the CCB?
The total fee to file a case with the CCB is $100, which is hundreds of dollars less than the fee to file a case in federal court. The CCB filing fee is split into two separate payments: a first payment of $40 and a second payment of $60, for a total of $100.
Does the copyrighted work at issue in the claim need to be registered with the Copyright Office before the claimant files a claim? What should the claimant do if they haven’t registered the work and want to file a claim?
In order to bring an infringement claim or counterclaim before the CCB, the copyrighted work that is the focus of that claim must be registered with the Copyright Office or the registration application must be pending with the Copyright Office. In some cases, the copyright owner of the work will have already registered the work well before bringing the infringement claim or counterclaim. But for copyright owners who have not yet submitted a registration application for the work, they can submit a registration application to the Copyright Office immediately before filing their claim with the CCB.
Additionally, if the claimant wants to have their registration application processed quickly, the copyright owner would request expedited registration through the eCCB system and pay the accompanying $50 fee. Any claimant that expedites its registrations should be mindful of these two important things: (1) this request can only be made once the case becomes active (in other words, after the 60-day opt out period ends and the respondent has not opted out), and (2) the request must be made through the eCCB system and not the regular Copyright Office registration system. The CCB regulations state that the Copyright Office will aim to complete the expedited review within 10 business days.
What type of information should be included in a claim filed with the CCB?
The CCB makes filing a claim easy by providing a fillable claim form that specifically requests all of the necessary information. Some of the general information that will be requested includes:
- The type of claim;
- The name(s) and mailing address(es) of the claimant(s);
- The name(s) and address of the respondent(s);
- Whether the claimant requests that the proceeding be conducted as a “smaller claim” with a limitation on total damages of $5,000; and
- A certification under penalty of perjury that the information provided in the claim is accurate and truthful; and
In addition, there is also specific information that will be requested that depends on the type of claim being brought.
For an infringement claim, the claim form requires information such as:
- Information about the work at issue, including the title of the work, the work’s authors, whether the work has been registered or a registration application has been submitted, and the works authorship category (or a description of the nature of the work);
- A description of the facts surrounding the infringement; and
- A statement describing the harm suffered by the claimant(s) as a result of the infringement and the relief sought by the claimant(s). Such statement may, but is not required to, include an estimate of any monetary damages sought.
For a declaration of noninfringement claim, the claim form requires information such as:
- A description of the controversy or dispute between the parties (e.g., the other party may have threatened to take action to enforce their rights (such as in a cease and desist letter) or sent a DMCA takedown notice)
- Information about the work at issue, if known, including the title of the work, whether the work has been registered or a registration application has been submitted, and the works authorship category (or a description of the nature of the work);
- A brief description of the claimant’s use of the work at issue; and
- A brief statement describing the reasons why the claimant believes that no infringement occurred.
For a section 512(f) misrepresentation claim, the claim form requires information such as:
- A description of the takedown notice (including the sender and recipient of the takedown notice, and, if known, the date the takedown notice was sent);
- If a counternotice was sent, a description of the counternotice (including the sender and recipient of the counternotice, and, if known, the date the counternotice was sent);
- The words used in the takedown notice or counternotice that are alleged to constitute a misrepresentation, and an explanation of how and why those words constitute a misrepresentation; and
- A statement describing the harm suffered by the claimant(s) as a result of the misrepresentation and the relief sought by the claimant(s). Such statement may, but is not required to, include an estimate of any monetary damages sought.
The claimant may choose to include additional files and attachments that they believe play a significant role in setting forth the facts of the claim.
What type of documents might a claimant want to include with the claim that is filed?
The claimant may choose to include additional files and attachments that they believe play a significant role in setting forth the facts of the claim. Those might include:
- A copy of the copyright registration certificate for the work at issue in the proceeding;
- A copy of the copyrighted work alleged to be infringed (including a hyperlink or screenshot, that shows where the allegedly infringed work has been posted);
- A copy of the allegedly infringing material (including a hyperlink or screenshot, that shows any allegedly infringing activity);
- For a misrepresentation claim, a copy of the notification of claimed infringement that is alleged to contain the misrepresentation or a copy of the counter notification that is alleged to contain the misrepresentation;
- For a declaration of noninfringement claim, a copy of the demand letter(s) or other correspondence that created the dispute; or
- Anything else that plays a significant role in setting forth the facts of the claim.
How does the claimant submit the claim? Is there a website they need to go to?
In most cases, the claimant is required to submit the claim and accompanying fee through the electronic filing and case management system called the eCCB.
When a claimant submits a claim to the CCB, what happens next?
After the claimant files their claim with the CCB, a Copyright Claims Attorney examines the claim to make sure it meets all of the requirements of the CCB.
- If the claim meets the requirements: If the claim complies with all of the necessary requirements, the claimant will be notified and instructed to serve notice on the respondent.
- If the claim does not meet the requirements: If a claim does not meet the necessary requirements, the claimant has 30 days to amend the claim so that it does comply.
If claimant fails to amend the claim: If the claimant fails to amend a non-compliant claim within the 30-day period, it will be dismissed without prejudice.
If claimant unsuccessfully amends the claim: If the claimant amends the claim within the allotted time but the claim still does not comply, the claimant is given another 30 days to further amend it. If the twice-amended claim still does not comply, the claim will be rejected and the proceeding will be dismissed without prejudice.
When the Copyright Claims Attorney reviews the claim, what are they looking for?
The Copyright Claims Attorneys are reviewing the claim to ensure that it meets the requirements of the law and the requirements established by the Copyright Office’s regulations. The goal of the compliance review is to make sure that the claimant has stated a claim that is allowed to be heard by the CCB, and that the claim as stated provides enough information so that the respondent understands the claim against them and can make an informed decision as to whether to participate in the proceeding or opt out.
Can the Copyright Claims Attorneys give legal advice?
No, the Copyright Claims Attorneys cannot give legal advice. However, they can provide information and assistance help people understand the procedures and requirements of the Copyright Claims Board.
Once the claim has been approved by the Copyright Claims Attorney, what are the next steps for the claimant?
If the claim complies with all of the necessary requirements, the claimant will be notified and instructed to serve notice on the respondent.