Ask Dr. Copyright

Dear Doc:

I’ve heard that copyright cases are going to be tried in the Copyright Office, and not in federal district courts. What gives? Is this good for authors, songwriters, artists and other creative folks?

Sick of Being Ripped Off

Dear Victim:

What you have heard is partially correct. Big changes are on the way in copyright lawsuits. Soon (possibly by the end of 2021), a new tribunal will begin operations: the Copyright Claims Board (CCB), where a three-judge panel within the U.S. Copyright Office will decide “small” copyright claims. Some are calling the CCB a copyright small claims court, because it is supposed to provide a quicker and less expensive way to enforce copyrights. Damages will be capped at $30,000 per case, with statutory damages limited to $15,000 per work infringed. Participation in this tribunal is voluntary for both claimants and respondents, and the CCB will operate online.

The CCB is part of the Copyright Alternative in Small-Claims Enforcement Act (CASE Act). Congress passed the CASE Act after finding that, “the costs of litigating in federal court have become increasingly prohibitive,” and technology has led to a rise in illegal copying of works “at virtually no cost, much to the detriment of authors and the market for their works.” (House Judiciary Report, No. 116-252 (September 12, 2019)). The proposed rules governing the CCB have been published in the Federal Register.

Not every copyright case may go before the CCB. The CCB can only hear claims for infringement under 17 U.S.C. § 106, declarations of non-infringement, and claims for misrepresentation under the Digital Millennium Copyright Act (DMCA). It cannot decide claims by or against any federal or state governmental entity.

A claim must (1) contain a statement identifying the parties, the claim asserted, the alleged injury, and the relevant facts; (2) certify that the statement is accurate and truthful to the best of the claimant’s knowledge; and (3) be served on the respondent. § 1506(e). The CCB will dismiss a claim without prejudice for failure to join a necessary party; lack of an essential witness, evidence, or expert testimony; or if the relevant issue of law or fact could exceed the number of proceedings the CCB can “reasonably administer” or the CCB’s “subject matter competence.” 

There are a number of rules that make a CCB case attractive for individuals: A claim can be filed in the CCB immediately after applying for registration. In federal court, the registration must be issued before a claim is filed. In the CCB, claims and assertions made by pro se parties (people representing themselves without a lawyer (BOO! Says the Doc!)) will be “construed liberally.” Even law students may represent parties! Litigating CCB cases will be quick, and discovery is abbreviated (The CCB will allow production of documents, written interrogatories, and written requests for admission, but depositions and third-party subpoenas are not routinely allowed. Additional discovery and expert witness testimony may be permitted only in “exceptional cases.”) The filing fee in the CCB is expected to be $100 per claim. Cases will be much less expensive to pursue than those in federal court.

As noted, CCB cases are voluntary, but a respondent must opt out in writing within 60 days to preserve the right to litigate in federal court. If a respondent opts out, the claim is dismissed without prejudice.  If a respondent does not opt out, the proceeding becomes active, and the respondent waives the right to a jury trial and will be bound by the CCB’s decision. The CCB will then issue a scheduling order with a 30-day deadline for the respondent to file a response to the claim. The response must include a short statement disputing the facts, describing why the claim is meritless, and identifying all relevant defenses. A respondent may also raise counterclaims that arise out of the same transaction or occurrence.

Because the detailed rules for the CCB have just been published, and are still in their comment period, some of the details may change before they become final. Next month, the Doc will take a deeper dive into the legal standards to be used by the CCB, the plusses and minuses of using the CCB instead of filing in federal district court, and how copyright owners and their attorneys may want to think about this new forum.

Have your creative works been pilfered on the Internet (or on a street corner)? Give the attorneys at LW&H a shout. They’ve been protecting clients’ intellectual property for more than 25 years!

Until next month,

The “Doc”

— Lawrence A. Husick, Esq.