Tag: CCB

Today marks six months since the U.S. Copyright Office launched the Copyright Claims Board (CCB)—the small copyright claims court established by the Copyright Alternative in Small-Claims Enforcement (CASE) Act. Although virtually all the cases filed with the CCB in the first six months are still in the early phases, it’s not too early to take a look at the CCB and analyze how it is working so far. There are some interesting trends to note that may guide potential CCB claimants who are considering whether to file claims, prospective respondents who are trying to determine whether to participate or opt out, and all parties as they learn how to best navigate this new small copyright claims tribunal.

Domestic and Foreign Creators are Filing Claims–Most Without Using Attorneys

As of the writing of this blog post, more than 260 cases were filed with the CCB at a rate of about 1.5 cases a day. We thought there might be a rush of cases filed when the CCB first launched, followed by a decrease and plateau as the months progressed. Interestingly, that is proving not to be the case so far as the number of cases filed each month has remained steady over the past six months, which may signal the CCB’s longevity and desirability as a forum for resolving certain copyright disputes.

Of the 260 or so cases filed, a little over 80% of the claims filed have been infringement claims. This is a testament to the need and desire for the CCB, evidenced by the support of thousands of creators who called for the creation of a small copyright claims system so they could enforce their rights. As individual creators and small businesses have been enforcing their copyrights in the new small claims court, we are heartened that they have the opportunity do so.  

It is particularly interesting to see that foreign claimants have filed a little over 10% of the CCB cases. Remember, the CASE Act allows foreign claimants to file CCB claims, but neither a foreign nor a U.S. resident CCB claimant may file claims against a foreign respondent (although a U.S. resident who is a respondent in a CCB proceeding may file counterclaims against a foreign claimant). While the CASE Act was pending we heard from many creators and small businesses, but virtually all of them were U.S. residents so we had no idea that the CCB would also be so fervently welcomed by creators and copyright owners throughout the globe who, like their U.S. counterparts, had little to no recourse to enforce their rights in the United States.

Not surprisingly, in roughly two-thirds of the CCB cases, the claimant is not using an attorney. Since the CCB was designed to be an affordable and accessible alternative to federal court where CCB parties could represent themselves, it’s encouraging to see that goal be realized and verified by the numbers showing that the majority of these claimants are bringing CCB claims on their own.

However, it is not a surprise that some difficulties arise when claimants represent themselves. Unfortunately, many CCB claimants do not fully understand how to use the CCB or understand some of the intricacies of copyright law. That has led to many claims needing to be amended—resulting in increased review time by CCB attorneys, longer timelines caused by multiple back-and-forths between claimants the CCB attorneys, and many claims being dismissed. While these struggles are not ideal and results in a more cumbersome experience, they are not insurmountable obstacles for CCB claimants. The amendment and dismissal processes for noncompliant CCB claims can help educate individual creators and businesses about the scope of their rights so that they better understand copyright law and their rights going forward. And as the U.S. Copyright Office and we at the Copyright Alliance make more educational materials available to help CCB parties, we are confident the number of amendments and dismissals will decrease over time.

The CCB Begins Hearing its First Cases

As of the writing of this blog post, there are seven active proceedings and no determinations rendered by the CCB. This low number is not surprising for several reasons including that the CCB regulations give ample opportunities and time for claims to be corrected through amendments and to move through the process before the case comes before the CCB Officers as an active case. For example, once the claimant files a CCB case, if the claim is found not to be in compliance, the claimant will be given 30 days to amend the claim, followed by a second 30-day opportunity to amend the claim if the initial amendment still fails to comply with the requirements. Once the CCB attorney approves the claims for service of process, the claimant has 90 days to complete service on the respondent and then, once the respondent is served, they have 60 days to decide whether to participate or opt out of the proceeding. These timelines don’t include review time by the CCB attorneys, possible extensions granted by the CCB attorneys, or other situations that could prolong the initial stages of a CCB proceeding. So, it could take roughly five months or longer before a case becomes an active proceeding.

But not all active cases have to go through those stages or take that long to become an active case. In fact, the origins of the first active CCB case may be surprising. There is a little-known provision in the CASE Act that allows a federal judge to refer a copyright case that is pending in federal court to the CCB, upon the mutual consent of the parties to the case. So when the first active CCB case turned out to be a case that was referred to the CCB from the Central District of California, it was a bit of a surprise to just about everyone and a good sign that judges and litigants view the CCB as a viable and appropriate alternative to federal court.

Claimants Are Using the CCB to Try to Settle Their Copyright Disputes or Resolve Their Copyright Disputes as a Precursor to Filing in Federal Court

In a little over 10% of the cases that have been dismissed by the CCB, the claimant voluntarily dismissed the case. We are aware of several cases in which a voluntary dismissal occurred as the result of a settlement between the parties. When the CASE Act was being considered, we thought that the CCB would lead to increased respect for the rights of copyright owners and lead to more settlements, and, at this early stage, that seems to be the case.

There is also evidence that the CCB is being used by claimants who otherwise would file their claims in federal court, but instead decided to first file at the CCB in an attempt to resolve their copyright dispute quickly and inexpensively without needing to file in federal court. For example, after the CCB claim in Dermansky v. Hayride Media was dismissed due to the respondent opting out of the CCB proceeding, the CCB claimant then brought those claims to a federal court in the Eastern District of Louisiana. The CCB claimant, now plaintiff, noted to the court in paragraphs 33 and 34 of the complaint that the copyright claims were first filed in the CCB as an attempt at a “cost-efficient and streamlined conclusion to this matter . . .” In paragraph 36, she points out that the defendant’s decision to opt out of the CCB proceeding opens them up to potentially increased damages as well as additional remedies for claims that were not available before the CCB. This demonstrates that respondents should carefully consider whether claimant might file in federal court when determining whether to opt out or participate in a CCB proceeding, in addition to a slew of other factors to consider. A list of the factors to consider were outlined in this blog post about what a respondent might consider when presented with the option to opt out.

What We Know About Opt-Out So Far

The most frequently asked question we get about the CCB is why respondents can opt out of a CCB proceeding. As we explain on our FAQ page, CCB participation is voluntary in order to comply with the requirements of the U.S. Constitution. Understandably, the opt-out provision is concerning for claimants who want to enforce their copyrights in a meaningful way without taking on the expenses and headaches of a federal lawsuit.

At this stage, there is not yet a sufficient sample size to draw conclusions about respondents’ behaviors, including decisions on whether to opt-out, and we caution readers not to place too much emphasis on any opt-out figures at this early stage. What we can say, however, is that so far only about 10% of the cases dismissed by the CCB have been dismissed due to a respondent’s opt out, showing that opt-outs are not proving to be the primary driver of dismissals at the CCB.

Claimants Are Still Learning How to File Permissible Claims and Serve Process

The biggest reason why the CCB dismisses cases is not because the respondents are opting out or settling—instead, it is because claimants are not meeting CCB requirements and deadlines. About 80% of the cases dismissed by the CCB are dismissed because of claimant’s failure to meet CCB requirements and deadlines. The issues could stem from a host of reasons. But one of the biggest reasons seems to be that many claimants do not understand how to file permissible claims with the CCB. As we note in our CCB videos and FAQ page about permissible claims, there are certain requirements to properly file a claim with the CCB such as understanding that:

• the CCB can only hear three types of copyright claims (no patent, other intellectual property, or non-copyright claims allowed);
• claimants cannot bring claims against certain respondents (for example, a claimant cannot bring a claim against foreign residents); and
• the CCB cannot grant injunctions.

From claims filed so far at the CCB, we also found that claimants might need to better understand the elements of proving copyright infringement. Over the coming months we’ll be providing more detailed information about the elements of infringement. In the meantime, you can check out our general page on How to Prove Copyright infringement.

The Copyright Claims Attorneys (CCAs) assist claimants by notifying claimants about the noncompliance of certain claims. CCB claimants, if they want their case to proceed, must amend their claims to be compliant with CCB regulations by the deadlines given by the CCAs. If not, the CCB will simply dismiss the case. To avoid having their cases be dismissed CCB claimants should also keep in mind these ten things when filing a CCB claim.

CCB claimants also seem to struggle with completing service of process—the method through which the claimant notifies the respondent(s) of the CCB claims. About 10% or so of CCB cases that are dismissed because of a failure to comply with CCB orders are dismissed due to the claimant failing to provide proof of service by the CCB’s deadline. Admittedly, service of process is a part of the CCB proceeding that can be difficult to figure out because rules vary from state to state, but it is nonetheless crucial. The Copyright Alliance has a video and FAQ page on CCB service of process which explains, among other things, what documents must be served on the respondent, how much time the claimants have to serve the respondents, and who can serve the respondents. There are also other resources that provide information about state-specific service of process rules. 

Conclusion

It is too early to make any definitive statements about which aspects of the CCB are working well and which are not, and how the CCB is actually working in practice. As the creative community familiarizes itself with CCB requirements, copyright law requirements, and the procedures and processes of the CCB—especially service of process—we expect the number of cases dismissed by the CCB begins to decrease.

The Copyright Alliance has many educational videos and FAQs on our website and we will continue to create new educational materials and putting on educational events. So if you are a claimant or respondent looking for more information about the CCB, please remember to check our website for information regularly. And we’ll check back in in June 2023 to take another look at the CCB.

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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!

There Are Numerous Factors That Every Respondent Should Consider When Deciding Whether to Participate in a CCB Proceeding.

A few weeks ago, we published a blog post discussing the 15 Things You Need to Know About the Copyright Office’s New Small Claims Court. One of the most important items on that list was the fact that “participation [in the Copyright Claims Board (CCB) process] is voluntary.” Voluntary participation means that the person who is being sued in the CCB (referred to as the “respondent”) can opt out of the proceeding and, if they do, the proceeding is immediately dismissed.

The voluntary nature of the CCB may seem absurd to some people, as they question why lawmakers who enacted the laws to create the CCB would grant alleged infringers the right to choose whether to participate in the CCB proceeding. But it is important to understand that the U.S. Constitution gives them this right and prevents the CCB process from being mandatory. More specifically, the Constitution guarantees a person’s right to have a case heard by an Article III court with the right to a jury trial. But even though a person has this right, they can waive it. This waiver is accomplished by giving respondents the ability to choose whether to participate in a CCB proceeding and the opportunity to opt out if they wish not to.

People may also question how useful and effective the CCB can be if alleged infringers can easily opt out. The CCB launched almost two months ago so it’s much too early to determine how frequently respondents will opt out, but there is a good chance that the opt out numbers will not be nearly as high as some might suggest. That’s because there are numerous features of the CCB process that may incentivize respondents to participate rather than opt out. Instead of impulsively opting out, respondents would be wise to consider all the different factors at play as they decide whether to opt out or participate. Some of these factors that respondents should consider include the following:

Cost of Hiring an Attorney

When a case is litigated in federal court, the largest cost associated with bringing or defending a copyright case is usually the cost of hiring an attorney, which as we all know can be fairly high. The CCB process is intended to be so simple that the parties will not need to hire an attorney to represent themselves. Giving parties the practical ability to defend themselves without paying an attorney should encourage respondents to participate.

Limitations on Monetary Liability

When an infringement claim, or counterclaim, is brought before the CCB, a successful claimant or counterclaimant may be awarded up to $15,000 in statutory damages per claim and up to $30,000 in total damages per case. That is significantly less than what may be awarded in federal court. By capping the amount of damages that may be awarded, the CCB dramatically reduces an alleged infringer’s potential liability. 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 before the CCB. And although federal court is too expensive for many copyright owners, there will still be those who can afford federal court but who choose to bring a case to the CCB first because of the cost savings and efficiency of the process.

Expertise of CCB Officers

Federal court judges are generalists by design, hearing cases on a range of criminal and civil issues. In contrast, the CCB judges (called “CCB Officers”) are copyright experts. At least two of the three CCB Officers must 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 work.” Thus, a party who believes that they have a meritorious defense(s) or a viable counterclaim(s) may choose to proceed before the CCB, with the benefit of judges who are dedicated experts on copyright law (including the available affirmative defenses under copyright law such as fair use).

Inconvenience and Expense of Travel

Unlike cases litigated in federal court, participation by the parties in a CCB proceeding is entirely remote. The proceedings take place through written submissions and virtual communications. As a result, the parties do not need to incur the expense or inconvenience of travel. The time and money saved by not having to take multiple long car rides or flights across the country to the tribunal, the value of not having to take days away from your regular business to participate in the proceeding (which may lead to lost opportunities and revenue), and the elimination of the safety and health risks associated with traveling during a pandemic are all significant factors that respondents should consider.

Speed of the Proceedings

Because of its reduced complexities, fewer requirements, and more streamlined process, CCB proceedings will progress to a resolution much more quickly than equivalent federal court proceedings. A respondent who believes they have a one or more meritorious defenses may choose to proceed before the CCB in order to more quickly resolve any legal claims against them. This is especially true where the outcome of litigation may have a significant impact in a company’s business operations. For example, resolving an infringement dispute might be necessary before a product launch or before a business agreement with another party can be consummated. In these instances, a respondent may prefer the quicker process afforded by the CCB so it can move forward without undue delay. 

Simplicity of the Discovery Process

Ask anyone who has been involved in litigation in federal court and they will tell you how arduous, complex, invasive, and costly the discovery process can be. The CCB process is the polar opposite of federal court when it comes to discovery (the portion of a proceeding during which parties exchange information and documents related to a case). The entire CCB process is intended to be simple, efficient, and streamlined for faster resolution of copyright disputes. What this means in practice is that discovery is much more limited and is much quicker than discovery that takes place in federal court. For example, there is no formal motions practice (formal requests made to a court, e.g., a motion asking the court to dismiss a case) at the CCB. The CCB also provides standard forms and questions for the parties to conduct the discovery process, so that parties do not have to develop and draft discovery requests on their own to get relevant information from the other party. And if the case involves “smaller claims” (i.e., claims in which damages are less than $5,000 and the claimant has chosen to proceed through the much less demanding smaller claims process), in most cases there is no discovery at all. Not only would a respondent likely appreciate the simplicity of the CCB discovery process, they may also welcome how much less intrusive the CCB discovery process is in relation to federal court.

Insurance Considerations

Many insurance policies require businesses to promptly notify their insurance carrier of any pending lawsuits. Given 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, there is good chance that an insurance carrier may require that the claim be litigated before the CCB rather than risk going to federal court.

No Injunctions

In federal court, a copyright owner can seek an injunction to stop the alleged infringer from continuing an infringing activity. Unlike federal court, injunctions are not available in a CCB proceeding. Depending on the nature of the alleged infringement and the relationship between the respondent’s business and the alleged infringing activity, the unavailability of injunctive relief may be a significant factor in a respondent choosing to proceed in the CCB instead of federal court. Despite the fact that formal injunctions are unavailable at the CCB, if the parties reach an agreement for the respondent to cease the infringing activity, the CCB can make that agreement part of its final determination. The CCB Officers can then take that agreement into consideration when determining the damage award (if any). In other words, by agreeing to what is in essence an injunction, the respondent can potentially lower its monetary exposure—which is another reason participating in the CCB may be beneficial. Lowering damages in this manner is not possible in federal court.

Claimant May Bring the Case in Federal Court if Respondent Opts Out

The CCB was created because many independent rightsholders cannot afford to enforce their rights in federal court, and the CCB will offer them this opportunity. As a result, many people might expect most respondents to opt out of the CCB under the assumption that the claimant cannot afford to sue in federal court. That assumption fails to appreciate the numerous incentives discussed above. But it also fails to consider that, while the CCB was created with those who cannot afford federal court in mind, there will be those who can afford federal court but choose to bring case to the CCB initially because of the cost savings, expediency, and simplicity of the process. In fact, during the six weeks or so since the CCB first launched we have noticed that several claimants have previously brought copyright suits in federal court and/or can clearly afford to do so. Often a respondent won’t know whether the claimant can afford federal court. So, in situations where the respondent recognizes that they may be held liable, opting out under the assumption that the claimant can’t afford federal court is a huge risk.

When all these factors are considered together, they certainly provide a strong enticement to participate in the CCB instead of opting out. Even where the respondent opts out, the mere bringing of the case serves to educate them about copyright law so that the user may think twice before engaging in the same or similar infringing activity in the future. In fact, we may have already seen this play out in practice in cases that have already been filed. Through a process that encourages parties to participate while at the same time not penalizing them if they choose not to, the CCB achieves balance and fairness.

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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!

[Note: The Copyright Alliance is no longer operating the SCOOP Program or accepting applications for the program as of August 1, 2023.]

Since the U.S. Copyright Office launched CCB operations about two months ago, the number of small copyright claims filed with the new Copyright Claims Board (CCB) continues to grow on a daily basis. As discussed in our CCB one-month snapshot blog, some of the claims filed immediately after the CCB was launched are finally moving forward in the process as the Copyright Claims Attorneys have approved these claims for service on respondents. In the coming months, we will get our first glimpse into how respondents react to the CCB and the claims filed against them, and more specifically, whether respondents choose to participate in the CCB proceeding or opt out of it.

While parties are getting acquainted with this new small claims tribunal, we at the Copyright Alliance have been working hard to help parties better understand the CCB. With this goal in mind, this week, the Copyright Alliance launched a new program called the Small Claims Opt-Out Protection (SCOOP) Program that is intended to further educate claimants about filing a case with the CCB and to help them recover their initial filing fee if a respondent opts out.

CCB’s Voluntary Nature Means Claimants Could Lose Out on Initial Filing Fee

The opt-out procedure is one of the key features of the CCB. The U.S. Constitution establishes the rights of a party to have a dispute decided by a federal court and to have a jury trial. However, a party is free to waive those rights. Because the CCB is not a federal court and a CCB proceeding never involves a jury, the process must be one in which the party is given the option to waive these rights, making the opt-out feature crucial to the structure of the CCB. This does not mean every respondent will or should opt out of a proceeding. There are many factors that would weigh into a respondent’s decision whether to opt out of the proceeding, which we will discuss further in our next CCB Series blog.

Obviously, claimants do not want the respondent to opt out of the proceeding. After all, claimants file CCB claims in the hope that the CCB will hear their case and decide it in their favor. But when the respondent opts out of the proceeding, the claimants would have paid a filing fee without having a chance for the CCB to decide their claims.

In light of this necessary drawback, the U.S. Copyright Office adopted a two-tiered fee structure so that a claimant would not lose the entire $100 filing fee if the respondent opts out of the proceeding. Under this two-tiered fee structure, a claimant is required to pay an initial $40 filing fee when the claim(s) are filed with the CCB, and the remaining $60 filing fee would only be due after the opt-out period is over and the case becomes active.

Copyright Alliance Launches SCOOP Program to Reimburse Claimant’s Filing Fee When a Respondent Opts Out

While the CCB’s filing fee is hundreds of dollars less than in federal court, we understand that the loss of the non-refundable $40 fee if a respondent opts out of the proceeding is not without consequence to individual creators and small businesses. To help counter this potential loss and to equip creators with knowledge about the CCB, we launched the Small Claims Opt-Out Protection (SCOOP) Program earlier this week, through which claimants can have their $40 initial filing fee reimbursed if their claims are dismissed due to respondents opting out. We hope that through this program, creators will become better acquainted with the CCB by reviewing our educational materials and videos so that they have an effective, additional tool for enforcing the copyrights in their works and they understand how to properly use that new tool.

A claimant interested in having their $40 filing fee reimbursed can apply to participate in the SCOOP Program. The program works as follows:

• Before filing a case with the CCB, the applicant (i) was a member of the Copyright Alliance so that they have easy, free access to all our educational materials about the CCB, and/or (ii) watched our Learn About the Copyright Claims Board video;

• The applicant files a case which is dismissed by the CCB because a respondent in the case opted out;

• After the case is dismissed by the CCB due to a respondent opting out, the applicant becomes a member of the Copyright Alliance, if they are not already a member, and then completes and submits the SCOOP Application; and

• After reviewing the application and the case, the Copyright Alliance approves the application.

During the application review process, the Copyright Alliance will be using several criteria to decide whether to reimburse a claimant under the SCOOP Program. For example, we will not reimburse foreign claimants or claimants who filed their claims with a co-claimant. Other factors that would result in a denial of the SCOOP application include:

• the applicant was not a member of the Copyright Alliance when they filed their case with the CCB and did not watch the video before filing;
• the applicant has already been reimbursed three times through the SCOOP Program;
• the information provided in the application creates an actual or potential conflict of interest for the Copyright Alliance; and
• the applicant did not comply with SCOOP Program requirements.

Learn More About the SCOOP Program

We have lots more information and details about the SCOOP program on our website, including a visual guide of the SCOOP Program process, to help prospective applicants understand how they can apply and get reimbursed through the program. Additional details about program requirements can be found in the SCOOP Program participation terms and conditions. Creators can also reach out to us with questions about the Program or generally about the CCB by calling our CCB hotline at 1-888-5403-CCB.

We also continue to provide more information and educational materials for creative professionals to help understand the ins-and-outs of the CCB process and how they can better understand filing and responding to claims made in this new small copyright claims court. Check out our CCB Explained webpage to access answers to FAQs, Copyright Academy videos, and other resources about the CCB. Through these materials and the SCOOP Program, we hope creators will become more knowledgeable about the CCB so that they can readily navigate and access their CCB proceedings and meaningfully enforce their copyrights as Congress intended.

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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!

Last week, we published a blog post titled 15 Things You Need to Know About the Copyright Office’s New Small Claims Court that received a huge response. We heard from many readers interested in learning about the new small claims tribunal, called the Copyright Claims Board (CCB), who found this blog very helpful and asked for more information. So, we decided that we’d do additional posts about various aspects of the CCB process while trying not to be repetitive. So, if you don’t see something included in the top ten list below, or in future blogs, it may have been covered in a previous blog. In this post, we’ll cover the filing of claims.

Below are the top ten things you need to know about filing a claim with the CCB.

1. There are two filing fees that are different amounts and are paid at different times.

The total fee to file a case with the CCB is $100, which is significantly less than the fee to file a case in federal court. The $100 filing fee is split into two separate payments. The first payment—which is for $40—is paid at the time the case is filed. The second payment—which is for $60—is paid only if the person who is being sued (referred to as the “respondent”) has not opted out after the 60-day opt-out period ends. If the respondent has not opted out, the CCB will issue an order asking the person who brings the claim before the CCB (referred to as the “claimant”) to pay the second filing fee of $60. The claimant must pay the second filing fee within 14 days of the CCB order.

2. Three types of claims can be brought before the CCB.

The CCB can hear three types of claims by copyright owners and users: (1) a copyright owner can bring an infringement claim; (2) a user of a copyrighted work can bring a claim for declarations of non-infringement when a copyright owner has alleged that they are infringing and either the copyright owner has threatened to take action to enforce their rights (such as in a cease-and-desist letter) or has sent a takedown notice pursuant to section 512 of the Digital Millennium Copyright Act’s (DMCA); and (3) a copyright owner or user of a copyrighted work who believes a DMCA takedown notice or counternotice that was sent to them contains a misrepresentation can file a section 512(f) misrepresentation claim.

Claims that do not fall within the three categories listed cannot be heard by the CCB. So, for example, ownership disputes, termination claims, and trademark claims cannot be heard by the CCB.

The CCB can also hear counterclaims that might be raised in response to claims brought by the claimant, as long as the counterclaims (1) fall within the three categories above and arise out of the same transaction or occurrence that is the subject of the claim, or (2) arise under an agreement pertaining to the same transaction or occurrence that is the subject of the claim of infringement, if the agreement could affect the relief awarded.

3. Certain groups cannot be sued before the CCB.

The CCB cannot hear claims against the following parties (with some exceptions):

• a federal or state governmental entity;

• a foreign resident. (But note that the CCB can hear a counterclaim against a foreign resident when that foreign resident has first brought a CCB claim themselves);

• an online service provider (OSP) that is referring, linking, or storing 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)) unless 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; and

• a library or archive that has preemptively opted out of all CCB proceedings (but note that if a claimant believes that a library or archive was included on the opt out list improperly (i.e., the library or archives does not truly qualify for the exceptions under section 108 of the Copyright Act), the claimant can challenge the fact that the library or archive is on that list.

4. Users of copyrighted works can also bring claims before the CCB.

People tend to think of the CCB solely as a forum for copyright owners to bring copyright infringement claims. While most of the claims brought before the CCB will likely be infringement claims brought by copyright owners, the CCB is not for the exclusive use of copyright owners. Users of copyrighted works may also bring claims. As noted above, there are two types of claims users can bring. When a copyright owner has alleged that a user is infringing their work and either the copyright owner has threatened to take action to enforce their rights or has sent a DMCA takedown notice, the user can file a claim for a declaration of non-infringement requesting that the CCB issue a declaration stating that the activity they are engaged in does not infringe the copyright owner’s exclusive rights. The other type of claim that a user can bring occurs when they believe there is is a misrepresentation in a DMCA takedown notice that they’ve received. Paragraph (f) of section 512 of the Copyright Act provides that where a party who sends a DMCA notice or counternotice knowingly misrepresents that material or activity is infringing, or that material or activity was removed or disabled by mistake or misidentification, the person making the misrepresentation may be liable to the other party. Thus, when a user believes there is a misrepresentation in a DMCA notice, they can file claims under section 512(f) of the DMCA for misrepresentations contained in that notice.

5. There are limitations on the number of claims that can be brought in a year.

A claimant can bring up to 30 cases within a 12-month period.  Similarly, law firms and attorneys are limited to filing no more than 80 and 40 cases, respectively, in a 12-month period.

6. Multiple claims may be filed together.

If a claimant has more than one claim, those claims can be filed together in the same proceeding as long as the claims arise out of the same allegedly infringing activity and the total damages recovered by the claimant for all the claims would not exceed the amount of damages allowable before the CCB.

7. Copyright owners can file claims with the CCB even when they do not know the identity of the infringer.

Online infringers often use pseudonyms or take other steps to conceal their identities in an effort to make it difficult for copyright owners to pursue them for their infringing activities.

In these instances, a claimant may not know the real name of an alleged infringer. If the infringement occurs online, section 512(h) of the 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 submit a subpoena request to a clerk in a U.S. district court. The subpoena request must include:

• a copy of a DMCA takedown notice to the service provider requesting that the provider remove or disable access to the infringing content;

• 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 already done so. After it receives the subpoena, the service provider is then required by law to disclose the identity of the alleged infringer to the claimant. The CCB will be providing more information about the subpoena process on the CCB website in the future.

8. Filing a CCB claim should prevent a service provider from re-posting infringing material.

Under section 512(g) of the DMCA, if an alleged infringer responds to a takedown notice sent by the copyright owner by filing a counternotice with the service provider, the DMCA calls for the service provider to re-post the alleged infringing material within 10-14 business days—unless the copyright owner notifies the service provider that they have “filed an action seeking a court order to restrain the [user] from engaging in infringing activity” before the 14-day period expires. Filing a claim with the CCB qualifies as “filing an action” under section 512(g) and has the same effect as filing in federal court for purposes of the 10-day window for filing an action after a counternotification is sent. As a result, copyright owners now have two ways to prevent infringing material that has been taken down by a service provider from being re-posted: they can file in federal court or with the CCB.

9. Before filing an infringement claim with the CCB the allegedly infringed work must be registered with the Copyright Office or a registration must be pending with the Office.

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.

10. A Copyright Claims Attorney must approve the claim.

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. The Copyright Claims Attorneys will review 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. If the claim complies with all of the necessary requirements, the claimant will be notified and instructed to serve notice on the respondent.

If a claim does not meet the necessary requirements, the claimant has 30 days to amend the claim so that it does comply. If the claimant fails to amend a non-compliant claim within the 30-day period, the claim will be dismissed without prejudice. 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.

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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.

Conclusion

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.

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