As we wrote about in this recent blog, the COVID-19 stimulus relief and government-funding bill signed into law in December created a new “small claims court” for copyright matters.

The Copyright Alternative in Small-Claims Enforcement Act (“CASE Act”) revises the Copyright Act, 17 U.S.C. §§ 101 et seq. and creates a Copyright Claims Board (CCB) within the US Copyright Office.

The CCB will be able to decide on:

• Copyright infringement claims
• Declarations of non-infringement of copyright
• Claims for failure to remove or disable access to allegedly infringing content after notice-and-takedown procedures under the Digital Millennium Copyright Act (DMCA) have been followed
• Misrepresentation in connection with a DMCA claim
• Counterclaims relating to the above
• Defenses such as first sale and fair use

The CCB may not award more than $15,000 in statuary damages per copyrighted work, no more than $30,000 in total actual or statutory damages, and no more than $5,000 in attorney’s fees in cases of bad faith unless a party can present evidence of extraordinary circumstances.

The CCB is scheduled to become active by the end of December 2021.

Before that happens, the US Copyright Office is asking for the public to comment on the proposed process:

The Office must establish regulations to govern the CCB and its procedures, including rules addressing service of notice and other documents, waiver of personal service, notifications that parties are opting out of participating in the forum, discovery, a mechanism for certain claims to be resolved by a single CCB Officer, review of CCB determinations by the Register of Copyrights, publication of records, certifications, and fees. The statute also allows the Office to adopt several optional regulations, including regulations addressing claimants’ permissible number of cases, eligible classes of works, the conduct of proceedings, and default determinations.

The Copyright Office is asking for the public’s input on the following issues, among others:

Content of Initial Notices

To ensure that respondents are provided with proper notice of the claims asserted against them, along with information enabling a non-represented party to understand what the CCB is, and the process required to elect to participate or decline to do so, the statute details certain elements that must be included in the initial notice accompanying the claim

The Office is considering whether to include links in these formal notices that would allow defendants to better understand copyright law and their deadline for responding, obligations, and right to opt-out of the CCB process:

For example, should the notice provide information describing copyright or copyright infringement, as well as potential defenses that may be available to a respondent, such as fair use?

Opting Out

Generally, respondents who do not wish to have a claim heard by the CCB can opt out of proceedings on a case-by case basis. The statute includes two additional opt-out provisions: a blanket opt-out for libraries and archives who do not wish to participate in any CCB proceedings and a separate opt-out for parties who receive notice that they are class members in a pending class action involving the same transaction or occurrence as the CCB proceeding

The Office needs to decide whether opt-outs can be performed electronically, or only on paper.

Limits on Discovery

The statute allows for limited discovery in CCB proceedings. Discovery may include ‘‘the production of relevant information and documents, written interrogatories, and written requests for admission,’’ as established by Office regulations.

However, the Office notes that

discovery in the federal courts is the ‘‘primary reason for the length of federal court litigation’’ and is associated with ‘‘often substantial costs and potential for abuse by exploitative litigants.’’

Should there be a presumption against any discovery at all, as in some state small claims courts?

The Office seeks public input on whether there should be a limit on the number of interrogatories and requests for admission allowed without leave, what constitutes ‘‘good cause’’ to request additional information, and standards for determining when information is confidential.

More info on the CCB is here.

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