by Tom James, Minnesota attorney
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.
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.
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.
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.
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.
Need help with a copyright matter? Contact attorney Thomas James.