A New Stage for Online Copyright Infringement Disputes

Paraphrasing the famous line from the father of modern acting technique, in establishing the Copyright Claims Board (CCB), the Copyright Office effectively declared that there are no small copyrights, only small copyright infringement claims. Time will tell whether this new stage will serve as a well-respected and well-run forum for copyright owners, seeking redress (perhaps a summer "Shakespeare in the Park" to continue shamelessly flogging this analogy) or the legal equivalent of a cruise ship dinner theater. But regardless of the eventual reputation of the CCB, copyright holders would be well advised to familiarize themselves with this new forum for resolving copyright infringement claims and to consider its benefits and potential downsides in bringing or defending copyright infringement actions.

What Is the Copyright Claims Board?

Congress passed the Copyright Alternative in Small-Claims Enforcement Act (CASE Act) in December 2020. The CASE Act provided for the Copyright Office to establish the CCB, a three-member tribunal, to resolve certain copyright disputes that involve up to $30,000 in total damages, and any statutory damages are limited to $15,000 per work infringed. (The CCB offers an even more streamlined process called a "smaller claims proceeding" if the claimant is seeking $5,000 or less in monetary relief (excluding attorneys' fees and costs.) The proceedings before the CCB are entirely voluntary. Both parties must agree to participate. If the parties agree to participate, the CCB can consider a number of claims, including for infringement of one of the exclusive rights in the Copyright Act (see, 17 U.S.C. §106). The CCB is prohibited from hearing a number of claims, but most notably:

• Any claims or counterclaims finally adjudicated by a court of competent jurisdiction or pending before a court of competent jurisdiction (A caveat exists that allows the CCB to hear a claim or counterclaim if a court has granted a stay of proceedings to permit that claim or counterclaim to proceed forward before the CCB.); or
• For claims asserted against persons/companies outside the U.S.

CCB Procedures

Once the parties have agreed to proceed before the CCB, the matter will move forward rapidly. The respondent will file a response to the claim. Discovery will begin with the parties required to use the CCB's standard interrogatories and document requests (Good cause will have to be shown to the CCB to have additional relevant discovery, including requests for admission.). No depositions are allowed. Pre-discovery and post-discovery conferences are conducted virtually. There is no formal motion practice. As with motion practice, there are no formal rules of evidence followed by the CCB. Once discovery is completed, the proceedings before the CCB are conducted by means of written submission, hearings, and conferences carried out through telecommunications or video — no in-person attendance is required. In reaching a determination, the CCB can consider: 1) documentary and other nontestimonial evidence; and 2) testimonial evidence. (A request for a review of determination by the Register of Copyrights requires an additional fee.)