It’s only been a little over a month since the new small copyright claims tribunal, the Copyright Claims Board (CCB), started taking claims. Claimants have been keeping the CCB busy and some claims were approved for service of process at the beginning of this month. We at the Copyright Alliance have been monitoring the flow of cases, the types of claims and claimants, and the timeline and pace at which the claims are proceeding. There are some interesting observations and takeaways so far which generally show that the CCB seems to be operating as designed by Congress under the Copyright Alternative in Small-Claims Enforcement (CASE) Act.
Quick Statistics Snapshot
Here are the recent numbers on CCB cases as seen from the public database. As of the writing of this blog post, 61 cases have been filed with 13 of these being “smaller claims.” In at least 22 of the cases, the claimant is using legal counsel. At least 41 of the cases involve infringement claims, five involve Section 512(f) misrepresentation claims, and one involves a claim of noninfringement.
The eCCB docket currently displays information for 53 of these cases, showing that the works at issue are as follows (some cases include claims for multiple works):
- Pictorial Graphic & Sculpture (29 cases);
- Literary Works (seven cases);
- Motion Picture and Audiovisual Works (seven cases);
- Sound Recordings (six cases);
- Musical Works (four cases).
Three foreign resident(s) have filed cases. No one has opted out thus far as the Copyright Claims Attorneys (CCAs) have only started to approve claims for service of process earlier this month. Six claimants have filed multiple cases. Twelve claims have been deemed permissible and received an order from the CCAs to serve the respondents.
But beyond just these numbers, the details and facts of some of these cases and claims paint a picture of how claimants seem to be using the CCB process and their perceptions of the CCB as a tribunal to handle their disputes.
Claimants Generally Seem to File Permissible Claims
As previously shown in the quick statistics snapshot, the majority of cases that have been filed so far are copyright infringement claims, with only a tiny fraction of cases containing noninfringement claims or section 512(f) misrepresentation claims. But if we look beyond the numbers, and examine details about the cases filed so far, we can conclude that claimants generally seem to be filing claims that are permissible before the CCB. However, there do seem to be a few outlier cases involving claims that are not related to copyright, like trademark claims, or are copyright-related claims that are not one of the three types of claims that can be heard by the CCB, like claims involving ownership disputes or registration deposit copy issues.
The filing of a few claims that the CCB cannot hear is not surprising, especially in these early stages of CCB operations where claimants who have varying degrees of sophistication on copyright matters are getting acquainted with the new tribunal and its rules. Over time and as the CCB matures, in addition to the Copyright Office’s CCB Handbook and other resources, like the Copyright Alliance’s webinar videos and FAQs, (which can be found on our CCB Explained webpage), there will be more materials, resources, and webinars to help educate creative professionals, which should help reduce the likelihood of delays or missteps stemming from filing impermissible claims.
Additionally, the CCAs work with the claimants to explain how they may need to amend their claims in order for the claims to be approved so that the claimant can serve the respondent. If the CCA believes that a claim needs to be amended in order to comply with the CCB regulations, the claimant is presented with an Order to Amend Noncompliant Claim. In an Order, the CCA notifies the claimant of the noncompliant claim and the deadline to file an amended claim. Currently, only one case has such an Order from the CCA. Examining that one Order on the public database, we observed that the CCA identifies and explains the areas where the filed claim is noncompliant or lacking, such as issues with clarity of the claims or relevancy of supplemental documentation.
Again, because the CCB is new to everyone, hopefully over time, creators will better understand how the CCB process works and how to file claims.
In General, Claimants Are Using the CCB as It Was Designed
The majority of claimants so far are individual creators, for whom the Copyright Alternative in Small-Claims Enforcement (CASE) Act was intended. However, it’s interesting that approximately a third of the cases list a law firm or attorney representative for the claimant even though the CCB was designed to be accessible and simple so that claimants do not have to hire attorneys to represent them in the proceeding. One possible reason for the use of attorneys at this beginning stage of the CCB’s operations is maybe because these claimants are uncomfortable with the CCB process because it is so new and there are limited educational materials available.
Additionally, some of the claimants seem to be using the CCB as a kind of “first step” in enforcing their rights, before deciding whether to bring the case to federal court. Like all copyright owners, these claimants previously tried to enforce their copyright by traditional means like DMCA takedown notices, cease-and-desist letters, and federal court lawsuits. But as soon as the CCB opened its doors in mid-June, these claimants filed cases with the CCB, perhaps wanting to test the new tribunal’s viability as a forum through which parties can resolve disputes in an inexpensive and quick way. Since some of the claimants have a track record of suing in federal court, it would appear that these claimants are using the CCB as a first step toward potentially resolving their claims in a much easier and less costly fashion. And then if this is not possible because the respondent opts out, they might pursue federal court as the next step, which was their first step in the past before the CCB existed.
Copyright owners are not the only parties who can file claims with the CCB. Users of copyrighted works can potentially resolve their copyright disputes in this alternative forum without having to go to the federal court. For example, a user of a copyrighted work can file a CCB case (or file a counterclaim), requesting that the CCB declare that the use of a copyrighted work is not infringing on the other party’s copyrighted work. In the cases filed to date, we see that users are also taking advantage of the CCB process, albeit unsurprisingly not the same extent as creators.
Timeline for Claims to Be Approved for Service Takes Approximately 2-3 Weeks
Looking through the public database, there seem to be some rough timelines of at least the beginning stages of a CCB proceeding. After a claimant files their CCB claims, the claims are reviewed by a CCA and approved to be served on the respondent. So far, we’ve noticed that in cases where the claimant does not amend the claims, there is about a two-to-three-week period between the filing of a case and the CCA’s notice of compliance and direction to serve.
However, if a claimant amends the claims (whether the CCA orders it or not), this lengthens the time period it takes for the claimant to receive a notice of compliance and direction from the CCA to serve the claims on the respondent. In the situation where a claimant decides to amend a claim on their own (i.e., voluntarily and without the CCA ordering them to do so), the claimant may have to wait for a while (around a month) until the order approving the amendment is issued by the CCB. Hopefully with more knowledge and experience of how to file acceptable claims, claimants will be able to advance their cases quicker.
There Are Some Technical Snafus Within the eCCB System
Because the eCCB system is so new, there are bound to be some bumps along the road in the operation, use, and display of information through the eCCB.
One thing that parties should note is that it can take a little while for case details to appear in the eCCB database once the case has been filed. These details, which include the types of claims, the claimant, and the specific facts and allegations, usually appear several hours to a couple business days after the claimant submits the claim form. CCB staff may be conducting a superficial review of the claim to ensure certain fields are adequately filled out before the details of the case are displayed on the website. However, there are still some cases that were filed at the beginning of the CCB operations, where the claim details are still not displayed in the public database. Perhaps these cases required an extensive amendment in the claims, but there isn’t really a way to know what is going on behind the scenes. There also seem to have been other technical difficulties with the eCCB including claimants who found it difficult to amend their claims after the initial submission, further lengthening that time period between the submission of a claim and the CCA’s notice to approve the claims for service of process.
Though it’s only been a month, the CCB is getting a steady flow of cases and the CCAs are working hard with claimants to advance their claims through the CCB process. Though there are some snafus in the eCCB system and some confusion over the types of claims that are permissible before the CCB, claimants are quickly learning more about the unique processes and workings of this new tribunal. As these claims advance in the CCB process, we’ll continue monitoring new lessons and developments that may arise from those later stages of the proceedings.
If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!