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August, 22nd, 2022

By: Jasmine B. Gratton, Matthew U. Silfin

The U.S. Copyright Office has recently started reviewing claims at the new Copyright Claims Board (CCB). After some delay, the first claim was filed on June 16, 2022, and as of July 29, 2022, a total of 81 claims have been filed.[1]

In late 2020, Congress established the CCB when it enacted the Copyright Alternative in Small-Claims Enforcement Act (CASE Act) with the purpose of providing a cost-effective, efficient alternative to settle copyright disputes. The CASE Act allows the CCB to hear copyright infringement matters with damages capped at $30,000.[2]

The CCB was created to provide an alternative to filing copyright lawsuits in federal court. To make the process easier, more efficient, and more accessible, the CCB provides more streamlined rules and procedures than federal courts. An attorney is also not required to file a claim with the CCB.

To bring a claim before the CCB, the claim is filed through the CCB’s electronic filing system, eCCB, and the respondent, the party defending against the claim, files a response. Once a response is filed, a shortened discovery process, compared to the process in federal court, begins. After discovery, each party presents their arguments to the CCB, and the CCB issues its final determination.

The CCB’s final determination can be appealed in three ways: back to the CCB for reconsideration, to the Register of Copyright if the CCB rejected the request for reconsideration, or to a federal district court.

There are notable advantages that the CCB provides. For example, the filing fee is much lower. The CCB is also more accessible to smaller copyright owners given the streamlined process and that attorneys are not required. For claims seeking less than $5,000 in damages, the CCB provides an even more efficient process involving only one panelist rather than three. Also, unlike federal courts, claims for infringement of unregistered works can be brought to the CCB. The CCB provides for express registration of an unregistered work for an additional fee.

While the creation of the CCB is a step in the right direction for copyright owners with fewer resources, there are still shortcomings. Most notably, respondents can opt-out of CCB proceedings filed against them. If the respondent chooses to opt-out, then the claimant must file a complaint in federal district court. The CCB also lacks the authority to issue injunctions to stop copyright infringement. Without the power to issue injunctions, the CCB cannot order a party to stop using a copyright, even if they have found the use infringes on the complainant’s copyright.

The basis behind allowing parties to opt-out of CCB procedures is rooted in the Constitution. The CCB rules state that not opting out means the parties have waived their right for the case to be heard in an Article III court and their right to a jury trial. Without making the proceedings optional, the CCB would not be able to force the parties to waive these rights.

As of July 29, 2022, 81 claims have been filed with the CCB, but none have been decided yet, nor have any respondents opted out. 17 of those claims were filed the first day the CCB accepted claims, with a steady stream of claims being filed over the CCB’s first month of operation. Only time will tell whether this new copyright claims process works as intended.

 

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[1] https://dockets.ccb.gov/search/cases

[2] 17 U.S.C. § 1504

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