Remedies Available at the CCB
Are all the remedies that are available to a copyright owner who brings a case in federal court also available when the owner bring a case before the CCB?
No. Not all remedies available in federal court are available at the CCB. And some cases the remedies are available but are more limited.
The CCB can award actual damages or statutory damages. However, there are limits to the amount of damages that the CCB can award (see question 2 for more).
- Court Costs and Attorney’s Fees
The costs associated with bringing a case before the CCB and attorney’s fees generally cannot be recovered at the CCB. However, the CCB can award these costs and fees in limited circumstances.
The CCB cannot issue injunctions. However, the CCB is permitted issue something that is very similar to an injunction if the parties agree. (see question 6 for more)
What are the limits on actual or statutory damages that the CCB can award?
The CCB can never award more than $30,000 in any one proceeding, regardless of whether the CCB is awarding actual or statutory damages. However, there is a difference between actual and statutory damages in terms of how much money can be awarded by the CCB on a per work basis.
If a party is seeking actual damages, there is no per work limit on the damage award so long as the $30,000 per proceeding limit is not exceeded. In other words, the CCB can award up to $30,000 in actual damages in any one proceeding, regardless of whether the award is for one work or spread across multiple works in case.
However, where a party is seeking statutory damages, the CCB can only award a maximum of $15,000 per work infringed, although there is an exception that we’ll discuss later.
To provide some examples, let’s consider a claimant who is bringing an infringement claim and is seeking statutory damages. If the claimant files a claim for one work with the CCB, the most the CCB can award that claimant is $15,000. If that same claimant were to file a claim for two works in one proceeding, the most the CCB can award the claimant is $30,000, or $15,000 for both works. And if that same claimant were to file an infringement claim in one proceeding for three or more works, the most the CCB can award that claimant is $30,000 in statutory damages. The claimant could not be awarded $15,000 for each work at issue in the case.
The limitations we have discussed all apply where the claimant has filed a claim with the CCB through the standard process. However, where the claimant has filed a claim through the smaller claims process, the total damages that the CCB can award is limited to $5,000 regardless of whether the damages awarded are actual or statutory damages.
If a copyright owner must timely register their work in order to recover statutory damages in federal court, is the same true when a claimant files a case with the CCB?
No. Unlike in federal court, even if a work is not timely registered (i.e., before the infringement occurred or within three months of publication), the copyright owner can still be awarded statutory damages by the CCB. However, for works that are not timely registered, statutory damages are more limited.
In those instances, the CCB can award a maximum of $7,500 per infringed work and a total of $15,000 for all infringed works not timely registered, instead of $15,000 per infringed work and a total of $30,000 in any one proceeding, as discussed previously.
For example, let’s consider a claimant who is bringing an infringement claim and is seeking statutory damages, but they have not timely registered the work or works involved in the case. If the claimant files a claim for one work with the CCB which has not been timely registered, the most the CCB can award that claimant is $7,500. If that same claimant were to file a claim for two works, both which were not timely registered, the most the CCB can award the claimant is $15,000 or $7,500 for both works. And if that same claimant were to file an infringement claim in one proceeding for three or more works, none of which were timely registered, the most the CCB can award that claimant is still $15,000 in statutory damages, or less than $7,500 per work. The claimant could not be awarded the maximum $7,500 for each work at issue in such case.
When does a party in a CCB case need to inform the CCB of its decision to pursue actual or statutory damages?
For infringement claims, a CCB claimant or a counterclaimant can elect whether they are pursuing statutory or actual damages (or no damages at all) at any time before the CCB makes its final determination and according to any schedules established by the CCB. The claimant or counterclaimant can make this election when filing the infringement claims or counterclaims with the CCB, but they are not required make this election at this early stage of the proceedings.
Under what circumstances can the CCB award attorneys’ fees and costs to a prevailing party?
In general, each CCB party is responsible for paying their own CCB costs (for example, the filing fees) and their attorneys’ fees. However, in very limited circumstances the CCB may require the losing party to pay the prevailing party’s fees and costs.
Where a claim is dismissed because the CCB determines that, after filing the claims with the CCB, the claimant failed to keep up with the CCB case (such as failing to meet multiple deadlines or not showing up at hearings) or pursued a claim for an improper purpose, the CCB can award the respondent fees and costs against that claimant.
The CCB can award fees and costs against a respondent when the CCB finds that a respondent pursued a counterclaim or defense for harassment or other improper purposes.
When the CCB determines that an award of fees and costs is warranted, the CCB can award a maximum of $5,000, when the prevailing party is represented by an attorney, or $2,500 when they are not represented by an attorney. The CCB can exceed these maximums when there are extraordinary circumstances such as a demonstrated practice or pattern of bad faith behaviors.
Although injunctions are not available at the CCB something like an injunction may be, what does this injunctive-style relief look like?
Unlike in federal court, the CCB cannot issue injunctions that order the losing party to perform a certain action or refrain from taking a certain action—such as stopping the infringing activity or taking down an infringing work from a website. However, if the parties reach agreement where one party agrees to cease or mitigate certain conduct, such as stopping the infringing activity, the CCB can include that agreement in its determination. As a result, that agreement may accomplish the same purposes as an injunction.
It is also worth noting that when determining the amount of damages the CCB can take into consideration whether the parties have reached an agreement to cease or mitigate conduct.
If the CCB can award remedies for infringement claims, can it also award remedies for claims of declaration of noninfringement and DMCA misrepresentation claims?
Yes, the CCB can award remedies for all kinds of CCB claims. However, statutory damages are only granted for infringement claims. That is why unlike for infringement claims, where the claimant or counterclaimant may elect either actual or statutory damages, CCB parties do not have to make such a choice when requesting remedies in DMCA misrepresentation and declaration of noninfringement cases.
If the CCB awards damages, what can the prevailing party do if the losing party refuses to pay that amount? Is there any way to enforce the CCB’s award?
If a losing party does not comply with the CCB’s final determination and award, the prevailing party can bring an action in federal district court to enforce the CCB’s determination. This includes enforcing the injunctive-style