The quicker, streamlined, and less expensive method for resolving copyright infringement matters valued at under $30,000 will soon be available to copyright enforcers. Currently scheduled to begin hearing cases in Spring 2022, which may be extended into late June 2022, the Copyright Claims Board (CCB) was established by the Copyright Alternative in Small-Claims Enforcement Act passed by Congress on December 27, 2020.
According to a U.S. Copyright Office FAQ, “The [CBB] will be an alternative to federal court for copyright disputes. It will be a voluntary forum that both parties will have the choice to use to get a legal resolution of various copyright matters.” The CCB will be able to hear claims of copyright infringement cases, of declaration of non-infringement, and of misrepresentations made in the Digital Millennium Copyright Act takedown notice process. CBB decisions will be available online, but the decisions will not be precedential.
The U.S. Copyright Office’s FAQ provides a detailed Q&A about this new process. Filing begins with paying a filing fee, filing a claim supported by a statement of material facts, and then providing notice to the other side (who can opt out if desired). Importantly, unlike in federal court, a filer will not be required to register the work before bringing a claim before the CBB. Instead, a filer “will need to either (1) have a registration from the Copyright Office for the work(s) at issue or (2) have filed an application with the Copyright Office to register the work(s) at issue either before or simultaneously with filing a claim with the CCB.” Also, unlike in federal court, discovery is limited to “the production of relevant information and documents, written interrogatories, and written requests for admission.”
In terms of damages, the CBB will be able to award damages up to $30,000, either as actual or statutory damages regardless of the number of works at issue, and will also be able to award up to $5,000 in attorneys’ fees and costs against bad faith parties (or higher amounts in extraordinary circumstances). If the losing party does not pay the damages award, the winning party can ask a federal district court to confirm the award and enter judgment. In addition, there is an ability to request reconsideration of the CBB’s decision and, if denied, to request that the Copyright Office review the CBB’s denial for abuse of discretion or to request that a federal court vacate, modify, or correct the CCB’s determination. However, a federal court will only be able to do so if “(1) the determination was issued as a result of fraud, corruption, misrepresentation, or other misconduct, (2) the CCB exceeded its authority or failed to issue a final determination, or (3) in the case of a default or failure to prosecute, excusable neglect was the cause of the default or failure to prosecute.”
The CCB will be located inside the Copyright Office, and the Board will consist of three Officers appointed by the Librarian of Congress as recommended by the Register of Copyrights. According to the U.S. Copyright Office’s FAQ, “two of the Officers will have substantial experience in evaluation, litigation, or adjudication of copyright infringement claims. These Officers will have represented or presided over different types of copyright interests, including those of copyright owners and users. The third Officer will have substantial familiarity with copyright law and experience in the field of alternative dispute resolution. The Officers will be supported by multiple copyright attorneys, a paralegal, and an assistant.”
The U.S. Copyright Office says that it is still in the process of setting up the CBB, and the Library of Congress notes that rulemaking and public comment is still in process. Again, this new process will be available relatively soon and at least by late June 2022.