The Copyright Claims Board (aka “Copyright small claims court”) opened on schedule, on June 16, 2022. Echion CLE is offering educational courses.
The Copyright Claims Board (“copyright small claims court”) launched today (June 16, 2022), on schedule.
The New Copyright Claims Board
The new Copyright Claims Board is here. Dubbed a “copyright small claims court,” it is not really a court. It is an administrative tribunal. It will, however, function very much like a court.
Court rules, such as the Federal Rules of Civil Procedure and the Federal Rules of Evidence, do not directly apply.
The new tribunal was created by the CASE Act of 2020. The filing fee is considerably lower than court filing fees. It is empowered to hear and decide copyright infringement and DMCA notification misrepresentation claims. Claims in excess of $30,000 (exclusive of attorney fees and costs) are not eligible.
Some worry it will give copyright trolls more ammunition. There are, however, some provisions in the Act that offer protections from copyright trolls.
Copyright Small Claims Court CLE
I will be teaching a CLE webinar for attorneys and paralegals about this new tribunal – jurisdiction, applicable law, procedure, forms (claim, response and counterclaims), evidence, hearings, appeals, potential constitutional challenges, and more.
This course has been approved for 2.0 attorney CLE credits by the Minnesota Board of Continuing Legal Education. Because Minnesota is an approved jurisdiction, attorney CLE credits may also be available in Alaska, Arizona, Arkansas, Connecticut, Florida, Guam, Hawaii, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Northern Mariana Islands, Wisconsin, and other jurisdictions. Check the Echion CLE course page for information and updates.
Paralegal CLE credits:
NALA has approved this course for 2.0 paralegal continuing education credits.
What could the new Copyright Claims Board (“copyright small claims court”) mean for you? Attorney Thomas James explains.
UPDATE: The CCB is now fully operational.
The Copyright Claims Board is scheduled to begin accepting claims on June 16, 2022. What could this mean for you?
The Purpose of the Copyright Claims Board
Due in large part to the Internet, copyright infringement is rampant. In many cases, however, enforcing copyrights in federal court is prohibitively expensive.
To begin with, there is a $350 filing fee and an additional $52 administrative fee, for a total of $402, just to get a case underway. After that, there will be subpoenas, depositions, witness fees, transcript costs, etc. Moreover, because copyright litigation is complex, litigants usually find it necessary to hire an attorney. Add these additional expenses to the $402 filing fee, and a copyright owner can be looking at paying thousands of dollars just for a chance at enforcing his or her rights.
Under these circumstances, many infringement victims reasonably conclude that enforcing their rights against an infringer does not make good financial sense. This has been a long-standing legal issue for copyright owners and licensors.
Congress enacted the CASE Act of 2020 to address the problem by creating an administrative tribunal that will hear small infringement claims. The new tribunal will have a lower filing fee and is supposed to be simple enough for a person to use without needing a lawyer.
Do you need to worry?
The definitions of copyright and copyright infringement are broad enough that everybody has probably been guilty of it at one time or another. A fair number of people have probably infringed copyrights multiple times. It is possible, for example, for an email message to be protected by copyright, so forwarding it without permission could be infringement. Photographs, memes, music, videos, essays, etc. are all potentially protected by copyright. Copying and sharing them on social media without permission could be infringement.
In some cases, a defense like fair use or implied license might provide some protection. Many people, however, misunderstand these defenses. They often interpret them much more broadly than is warranted.
The main reason copyright owners have not been suing infringers is not that they believe the infringers may have a valid defense. It’s that the cost of litigation has been too high, relative to the amount of damage suffered. The CASE Act is designed to reduce those costs considerably. Consequently, Internet users and other everyday people would be well advised to be a lot more cautious about sharing other people’s content.
Statutory damages
A lot of people have the misimpression that so long as they are not making a profit from infringing a copyright, they are safe from a lawsuit. This is not true. Neither profit nor intent to profit needs to be proven in order to win a copyright infringement case. A copyright owner does not have to prove actual damage. He or she can request, and be awarded, statutory damages instead. These are damages that are authorized by statute without need for proof that the infringement caused any actual harm.
The CASE Act authorizes the CCB to make an award of up to $15,000 statutory damages per work when a timely registered copyright has been infringed, and up to $7,500 per work when an unregistered one has been infringed. (The total that may be awarded in one proceeding is $30,000.)
Opting out
Because CCB proceedings are voluntary, you have the right to opt out if you are served a CCB claim. The copyright owner is then free to file the claim in federal court. The range of remedies is broader and the amount of damages that may be awarded is higher in federal court.
Deciding whether or not to opt out will require careful consideration of the strength of the claim(s) and defense(s), the likely costs that each side will incur, and the level of exposure to damages and attorney fee awards in each kind of proceeding.
Why everyone should learn about the CCB
If you are a copyright owner, there is a very good chance that people have been infringing it, especially if you have displayed or published it online. The new CCB might make it feasible for you to do something about it even if you do not have the financial resources to file an infringement lawsuit in court.
If, like nearly everybody, you have shared a photograph, drawing, meme, music, recording, story, article, commentary, or email message that someone else created, without their permission, there is a chance that somebody may file a CCB claim against you.
The CASE Act of 2020 establishes a Copyright Claims Board (CCB). Attorney Tom James explains what the CCB is and what it will do.
In December 2020, Congress passed the Copyright Alternative in Small-Claims Enforcement Act of 2020. More commonly known as the CASE Act, it directs the Copyright Office to establish a Copyright Claims Board (CCB). The CCB is a three-member board within the Copyright Office. It is empowered to hear and decide copyright infringement claims amounting to $30,000 or less. Although the CCB was expected to be up and running sooner, there have been some delays.
CCB staffing
The Copyright Office has nearly completed all of the steps needed to be undertaken in order to implement the CASE Act. Copyright claims officers have been selected. Attorney-advisors, a program specialist, and a paralegal have been selected.
Rulemaking
The Office published a Final Rule on August 18, 2021, with a Clarification published April 22, 2022.
A final rule for small claims procedures for library and archive opt-outs and class actions was published on March 9, 2022.
A final rule on initiation of proceedings and related procedures was published on March 25, 2022.
A final rule on law student representatives and business entity representation was published on April 8, 2022.
The comment period has closed for a final rule on active proceedings on evidence.
The CCB is expected to be up and running in June, 2022.
What the CCB will look like
The new CCB is a voluntary process for claims totaling up to $30,000. Claimants may elect to file claims in federal court instead if they prefer.
Although located in Washington, DC, proceedings will be conducted entirely electronically and remotely. It will not be necessary to travel to the District of Columbia in order to file or defend against a claim.
Proceedings will be presided over by three judges appointed by the Librarian of Congress.
The statute of limitations (normally three years) applies to claims filed with the CCB in the same way it applies to court proceedings.
Again, the proceeding is voluntary. A party who is served a claim that has been filed with the CCB has a right to opt out. The party filing the claim then has the right to file the claim in court instead.
The CCB has the power to issue a determination by default if a party fails to respond to a properly served claim or fails to participate in the proceeding without exercising the opt-out right. The CCB may also dismiss or issue a default determination against a claimant who fails to prosecute the claim, misses deadline, or otherwise fails to comply with board rules.
Registration
One major advantage of the new CCB is that an infringement claim may be filed even if the Copyright Office has not issued a registration certificate yet. In order to file a claim, however, you must have submitted an application to register the work, either prior to filing the infringement claim or simultaneously with filing the CCB claim.
If your registration application is refused, the CCB will dismiss your claim without prejudice. This means you may still file the claim in federal court.
This is different from the rule that applies when filing a claim initially in federal court. A claim of infringement of a U.S. work normally may not be filed in federal court until after the U.S. Copyright Office has either issued a registration certificate or officially refused to issue a registration.
Available remedies
Total damages awarded cannot exceed $30,000. As in a court filing, the claimant may elect either statutory damages, on one hand, or actual damages or lost profits on the other.
The CCB does not have the power to issue injunctions. It can, however, include in its determination a requirement that a party stop or modify certain activities if the party has agreed to do so.
Attorney fees and costs are not recoverable unless the other party has acted in bad faith. There is a $5,000 cap if the other party is represented by an attorney. Otherwise, the cap is $2,500. In some extraordinary circumstances, a higher amount may be awarded.
Review and appeal of CCB decisions
If you disagree with a CCB determination, you have several options:
Request CCB reconsideration
Seek review by the Register of Copyrights
Request a federal district court to reverse or correct the CCB determination (only possible in certain circumstances.)
Enforcement of CCB decisions
If an infringer fails to pay the amount the CCB has ordered, the claimant may bring an action in federal district court to enforce payment.
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