Notifying a Respondent About the Claims Filed Against Them
After a claim is filed with the CCB, a Copyright Claims Board Attorney will review it to make sure it is a permissible claim and otherwise complies with the CCB requirements. At what point in the process does the claimant formally notify a respondent about the claim or claims they have filed against them?
Claims filed with the CCB must be certified by a Copyright Claims Board attorney before they can be served on a respondent. Once a claim has been certified, the CCB will issue a document called the Notice of Compliance and Direction to Serve document. This document indicates that the claim has been approved and the claimant can then serve notice on the respondent. The Notice of Compliance and Direction to Serve document details what the claimant needs to do to serve respondents.
What do the terms “service” and “service of process” mean?
“Service” is term used to explain the formal way a person is notified that a claim has been filed against them. The Due Process clause of the Constitution requires that a person have proper notice of a legal action being taken against them. This is the case in all U.S. Courts and also the CCB. The person being sued in court or at the CCB must be served certain documents and those documents are collectively called “process”. And that is why serving the required documents is called “service of process”
What documents are included in the service of process?
There are three documents that must be served on the respondent by the claimant. These three documents will be packaged together and sent to a claimant by the CCB in something called a “Service Packet.” The Service Packet is provided by the CCB in one PDF, which claimants will receive in a separate email soon after the Notice of Compliance and Direction to Serve is issued. The three documents included in one PDF in the service packet that claimants will receive in a separate email after receiving the Notice of Compliance and Direction to Serve are:
- Initial notice: The initial notice is a document that provides notice to the respondent or respondents that a CCB claim has been filed against them and gives the respondent(s) important information about the claimant(s), the claim, and the CCB itself. When the CCB creates the initial notice, it uses the information provided by the claimant in the filed claim. The initial notice is addressed to the respondent and contains essential information about the claim and the CCB, including:
- the parties’ names;
- a docket number assigned by the CCB;
- the names and mailing addresses of all claimants;
- the type of claim or claims that the claimant is asserting; and
- other information about the CCB and the proceeding.
- Approved claim (along with any supplemental documents submitted with the claim): The approved claim is a copy of the claim that the claimant filed with the eCCB and that the CCB attorneys found compliant. The claim details the facts the claimant has described and the type of claim that the claimant is asserting—either infringement, noninfringement, or misrepresentation.
- Opt-out notification form: The opt-out notification form is the document that a respondent who decides to opt out of the CCB proceeding may use to opt out by mail. A respondent may choose to opt out of the proceeding by filling out the opt-out notification either online or by mail by using the paper opt-out notification form.
How much time does the claimant have to serve all the respondents?
The claimant has 90 days from the day the Notice of Compliance and Direction to Serve was issued to serve the respondent. Once the respondent has been served, the claimant must upload proof of service to the eCCB.
The claimant must upload the proof of service within 7 days after the respondent has been served but no later than 90 days from the day the Notice of Compliance and Direction to Serve was issued. So, for example, if notice was served on the respondent 45 days from the day the Notice of Compliance and Direction to Serve was issued, the claimant would have the full 7 days to upload proof of service to the CCB. However, if notice was served on the respondent 90 days from the day the Notice of Compliance and Direction to Serve was issued, the claimant would have to upload the proof of service the same day. Where a case involves multiple respondents the 7-day window to upload proof of service applies to each respondent.
Who can serve the respondent?
Claimants cannot not serve respondents themselves. A respondent must be served by someone who is not a party in the proceeding and is at least eighteen years of age. Most people use a professional process server located in the area where the respondent resides to serve the notice for them, because process servers should be familiar with the state laws and local practices concerning service of process.
Is there a simple rule for how to complete service of process that applies across the board?
Unfortunately, there is not one rule for how service of process is completed. Instead, how service is completed will depend on numerous factors, including (i) where the respondent is located, (ii) whether they are an individual or a business; and (iii) if they are a business, whether they have registered a designated service agent with the CCB.
For the purpose of the CCB, what is a “designated service agent”?
A designated service agent for the purposes of the CCB is someone who is designated by a corporation, partnership, or unincorporated association to receive service of process on their behalf. So, for example, a large company with multiple locations may want to designate a service agent to ensure that, if they are sued by a claimant before the CCB, the notice is not misdirected since the claimant knows exactly who to serve process on. To ensure that claimant knows which organizations have designated service agents and how to contact those agents, the CCB maintains a directory of designated service agents, called the Designated Service Agent Directory, on the CCB website, which is publicly available and is provided to claimants.
Note that it’s the responsibility of the business to maintain up-to-date information in the Designated Service Agent Directory. That means information in the Directory is assumed to be correct, and if a claimant serves process on a service agent listed for a respondent in the directory, service may be considered valid even if the agent information was incorrect because it was not updated by the respondent.
How does the claimant serve a business when that business has a designated agent for the CCB?
If a respondent has a designated service agent for the CCB, the claimant is required to serve the agent named in the directory. In most cases, the claimant must serve notice by certified or priority mail at the address listed in the directory. In some instances, the claimant may have the option to serve a business entity by email if that business entity has notified the CCB that it will permit service on their designated agent by email. If a claimant wants to serve such an agent by email, the same three documents required by personal service or service by mail must be included in the email, and the email should state that the claimant is serving the agent in a CCB proceeding and identify the respondent.
If a respondent has a designated service agent for the CCB, and that agent is not served or is served at the incorrect address, the service will be considered invalid. For example, if the claimant serves notice on an employee or representative of the company who is not the designated service agent, the service will be considered invalid.
What this means in practice is that any claimant who is bringing a claim against a business entity should check the publicly available Designated Service Agent Directory on the CCB website, prior to serving notice, to determine whether the business has a designated service agent. If a claimant is using a process server, they should make sure the process server is aware of the requirements of the CCB and have them check the directory.
How does the claimant serve a business when that business does not have a designated agent?
When a business entity does not have a designated service agent listed in the CCB directory, the claimant may serve the business entity by serving an officer, a managing or general agent, any other agent authorized by the law of the state where service is made to receive service of process, or by any other means permitted under the law of the state where service is made.
As a general rule, corporations and other business are required by state law to designate agents for service of process, and in many states, service may be made on the state’s secretary of state. So even if such a business entity has not listed a service agent in the CCB’s directory, it will have a designated agent under state law wherever it is licensed to do business, and the claimant may serve that agent under state law. The agent for service of process under state law will not necessarily be the same person as an entity’s agent listed in the CCB’s Designated Service Agent Directory, so be sure to check the CCB’s Directory first.
- If a business has a designated service agent registered in the CCB directory, the claimant must serve the person or entity identified in the directory and follow the CCB rules for how to serve that person or entity; but
- If a business does not have a designated service agent registered in the CCB database, the claimant must abide by state law where the respondent-business is licensed to do business. In most cases, that will involve serving the agent that the business has designated under state law.
One last very important point is that where there is no designated service agent in the CCB directory and state law applies, state law applies only to HOW the business is served but it does not impact all the things we discussed earlier (see questions 1-5), such as the deadlines for service and the documents that must be served. Those are all determined by the CCB rules, not state law.
Can individuals designate service agents with the CCB?
Individuals cannot designate service agents with the CCB. Only businesses can designate a service agent with the CCB. What this means is that state law will control how a claimant serves process on an individual. But as noted above, state law only applies to HOW the individual is served. State law does not impact all the things we discussed earlier, such as the deadlines for service and the documents that must be served. Those are all determined by the CCB rules, not state law.
How does a claimant serve the respondent when the respondent is an individual (i.e., not a business)?
When the respondent is an individual, state law will control how to serve that person. Different states have different rules regarding how to serve someone, and so it’s essential that claimants make sure that the person serving the respondent understands the local rules and complies with them. That said, there are some commonalities.
Personal service, which involves a qualified individual personally serving a respondent, is the most commonly accepted form of service throughout all fifty states. Some states allow for anyone who is at least 18 years old and not a party to the lawsuit to carry out service, but many require either a law officer (meaning a sheriff, marshal, or constable) or a private process server.
Most states recommend the use of a private process server to carry out personal service because they specialize in service of process and are familiar with the local rules. While the cost of hiring a process server varies, the national average is between $30 and $100 dollars, with expedited or same-day service costing closer to $100. Private process servers are easy to find, with many listed in the local yellow pages or locatable using simple online keyword search.
Service by mail is another option available in most states, however, the requirements vary by state. For example, some states require that a written request be filed with a clerk of the court before service by mail, others require that the service documents be sent via certified mail, while others require first class mail and prepaid postage.
Should a claimant hire a process server to complete service of process?
Because a claimant cannot accomplish service themselves, they are going to need to get someone else to do it for them. If claimants consider that, along with the fact that the rules can get a little confusing—in cases where the respondent is not a business that has designated an agent with the CCB—it is probably prudent to do as many states recommend, and just hire a process server to take care of serving process. It’s a relatively affordable process and involves experts who know the exact rules.
How does a claimant serve someone when they do not know the identity or the address of the respondent? For example, the claimant may not know the identity of the respondent when the respondent is an anonymous user who has posted infringing material.
Claimants can use something known as a subpoena to determine the identity and address of a respondent. A subpoena is a written order that can be used to compel a party to provide information on a particular subject. Section 512(h) of the Digital Millennium Copyright Act (or DMCA for short) allows a copyright owner, or their representative, to request the clerk of a court to issue a subpoena to a service provider to identify an online infringer who is using that service provider’s platform for the infringement.
How does a DMCA subpoena work?
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 first step is that the claimant must send a DMCA takedown notice to a service provider requesting that the provider remove or disable access to the infringing content. That takedown notice should include information 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.
The claimant must then submit a subpoena request to a clerk in a U.S. district court. The subpoena request must include three things: (i) a copy of the DMCA takedown notice, (ii) a proposed subpoena, and (iii) 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 then 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 service provider is then required by law to disclose the identity of the alleged infringer to the claimant. Once that information is disclosed, the claimant should hopefully have enough information to serve the respondent.
The CCB should be providing additional educational information about subpoenas on their website.
Are there any exceptions to the service requirements or does the claimant always have to serve process on the respondent?
There is one instance where the claimant does not need to serve process on the respondent—that occurs when the respondent waives service of process. Claimants can ask a respondent to waive service of process by mailing them a completed Request to Waive Service form and the Waiver of Service form that are included in the Service Packet documents that will be provided by the CCB. The Request to Waive Service form and Waiver of Service forms can be found by signing into eCCB and going to the docket for that claim. All of this information and step by step instructions are provided in the Notice of Compliance document and the Service of Claim section of the CCB handbook.
If a respondent agrees to waive service by signing the form, a claimant does not need to formally serve process on the respondent. However, if a respondent waives service by returning the signed waiver form to the claimant, the claimant must upload the form within 7 days after the form was received from the respondent but no later than 90 days from the day the Notice of Compliance and Direction to Serve was issued.
It’s important for claimants to understand that waiver of service does not mean that the respondent has agreed to participate in the proceeding. It simply means that the respondent agrees to accept process without being served according to the formal rules for service of process. A respondent may choose to waive service because they don’t feel the need to make the claimant serve them formally or, if they do not opt out, waiving service gives the respondent an extra thirty days to respond to a claim after the proceeding has become active. And a respondent who waives service still has the ability to opt out.
Another thing to keep in mind is that requesting a respondent to waive service does not extend a claimants 90-day window for filing proof of service on the respondent. If a claimant wants to request the respondent to waive service, they should make that request soon after receiving notice that the claim is compliant to ensure that they still have plenty of time to service process and file proof of service if the respondent decides not to waive service.
What is a “second notice”? Is this something the claimant serves on respondent?
In addition to the notification that claimants send to the respondent when they’re served, the CCB will send a separate notification within the 60-day window if the respondents has not yet opted out. The purpose of this second notice is to make sure respondents have received a copy of the claim, notification of the opt-out period, and other important information and understand it. The CCB will not send the second notice until it has received proof of service or proof of waiver of service from the claimant. To be clear, there is nothing for the claimants to do here. The CCB sends the second notice, not the claimant. One other point to note is that the initial notice from the claimant starts the 60-day opt out period, not the second notice from the CCB.