Checking in with the Copyright Claims Board Nearly Eighteen Months After Opening Day

This blog post is adapted from an interview of Copyright Claims Officers David Carson, Monica McCabe, and Brad Newberg by Miriam Lord that was published in the August/September 2023 issue of Landslide Magazine, a publication from the American Bar Association’s Section of Intellectual Property Law. The statistics in this post have been updated to be current through October 31, 2023.

In June of this year, the Copyright Claims Board (CCB) celebrated an important milestone—one full year of accepting cases! The CCB is a small claims tribunal designed to resolve copyright disputes with damages up to $30,000. It is an alternative to federal court, the only other tribunal available to resolve copyright disputes.

The CCB was created pursuant to the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020 and is intended to be a fair, efficient, and streamlined venue for those claimants who want to avoid the costs, time, complexity, and other barriers posed by federal court litigation. It is also voluntary, meaning respondents may opt out of a CCB proceeding after being served with a claim filed with the CCB.

Under the CASE Act, the CCB may hear three types of claims: (1) claims of infringement of a copyright, (2) claims seeking declarations that specific activities do not infringe copyright, and (3) claims of “misrepresentations” in notices sent under the Digital Millennium Copyright Act (DMCA).¹

As we approach the eighteen-month mark of the CCB’s operations, let’s revisit a conversation with the three Copyright Claims Officers, David Carson, Monica McCabe, and Brad Newberg, from the one-year anniversary. Their comments have been updated with current statistics and trends based on changes between June and October 2023. Here, the Officers share their thoughts about the Board’s work and where things are heading next.²

On the Board’s work and how copyright owners and users are responding to it.

Brad Newberg: The CCB has been extremely well-received, and we are proud of what we have accomplished. In our first year, we saw close to 500 filed claims. The diversity of claimants and respondents, as well as the types of copyright-protected works implicated, shows that the CCB has increased the public’s access to a lower-cost and more efficient copyright dispute resolution. To date, parties appearing before the CCB range from individuals and small businesses to Fortune 500 companies. Claimants come from forty-five states plus Washington, DC, Puerto Rico, and over twenty-eight countries.

Parties are also taking advantage of the CCB’s ease of use and the ability to represent themselves. Parties can still hire attorneys, but over 70 percent have been self-represented, whether as an individual or as an in-house counsel or employee of a business.

On trends the Board has noted.

David Carson: We have noticed a few things, confirmed by our statistics, that might surprise some observers:

• First, since the day we opened our doors, claims have come in at a fairly steady, consistent rate, averaging just short of two claims filed per business day.
• Second, many people expected most infringement claims filed in the CCB to be brought by photographers. In fact, while we have more infringement claims involving photographs than for any other single type of work, the majority of infringement claims we have received involve works other than photographs. (See Figure 1)
• Third, so far, the rate of respondents who are opting out has been lower than some external observers anticipated. We actually have had more cases become active than we have had cases where the respondent has opted out.
• Fourth, approximately 40 percent of all claimants have chosen our more streamlined “smaller claims track” option, which is available for claimants who are willing to accept a damages cap of $5,000. Smaller claims proceed before a single Copyright Claims Officer, who works with the parties to permit only narrowly tailored exchanges of information. Following the parties’ submission of written statements and evidence, that Officer meets with the parties to discuss the case before presenting them with written findings of fact. (See Figure 2)

What is not surprising is that while we have received claims for declarations of noninfringement and for misrepresentations in takedown notices or counter-notices, the vast majority of claims brought before the CCB have been for infringement.

Brad Newberg: From the numbers of different types of claims filed, to a breakdown of the types of works discussed in each claim, and more, we are looking forward to sharing more information and observations with the public over the next year.

On the ways in which the CCB is accessible to all users, with or without an attorney.

Monica McCabe: When establishing processes and procedures for the Board, we tried our best to make them accessible to non-lawyers, as Congress intended. Examples include the following:

• Streamlined discovery procedures automatically eliminate many of the complexities that may pose a barrier to pro se parties litigating in federal court.
• The CCB’s electronic filing system, eCCB, was designed to be far more user-friendly than most, if not all, previously existing legal filing options. For example, eCCB provides a fillable form for claims that walks the party through a series of questions, giving them information and tips along the way.
• The CCB has created a detailed Handbook with more than twenty chapters that parties can reference depending on where they are in a proceeding.

While copyright claims attorneys cannot give legal advice, parties can email [email protected] for procedural questions and help navigating the process. Moreover, the CCB has a webpage identifying law schools and pro bono organizations available to help.

Brad Newberg: The compliance system set up by the statute has also been helpful to many claimants. When a claim is filed, it goes through a compliance review to see if it follows the rules and whether the claimant has provided enough information to allow a claim to move forward and for the respondent and the CCB to understand it.

The claimant is given two chances beyond the initial claim filing to make corrections. In the first year, more than fifty previously “noncompliant” claims were amended and later found compliant through this process.

On areas where some parties have had the most difficulty navigating.

Monica McCabe: I will start by saying that some parties have no difficulty with the process, but since most of the parties in our proceedings appear to have little or no prior experience with litigation, it’s to be expected that many will have a steep learning curve.

We try to make it easy to draft a claim by presenting claimants with specific questions to answer in the claim form, but when it comes to describing an act of infringement or misrepresentation, some claimants have difficulty focusing on the elements of the claim. We often suggest attaching the work at issue because, as the old adage says, a picture can be worth 1,000 words. Our Handbook is also a great resource for pro se claimants navigating this process on their own.

David Carson: Service of process has also proved to be a hurdle for many claimants. The CASE Act requires that respondents be served in the same way they are served as they would be if sued in court, and the Board has noticed that navigating the rules regarding service can be difficult for non-lawyers. Because the available options for service depend in part on the state in which the respondent is being served, it’s impossible to come up with a one-size-fits-all guide on how to serve process in CCB proceedings. We encourage claimants who are having difficulty serving the respondent to correspond with us via email or to contact one of the entities listed in our pro bono directory.

Brad Newberg: When it gets to the merits, parties have not paid enough attention to presenting evidence on damages. Even when awarding statutory damages, courts—and the CCB—pay attention to how and to what extent the injured party was harmed. If we have no evidence on that, such as evidence of past licensing fees, our awards are likely to reflect the lack of evidence. We’ve taken note of that, and in our conferences with the parties, where we remind them of things they should focus on, we point out that they should be assembling their evidence on that issue.

On the role law school clinics and pro bono organizations are playing in CCB proceedings.

Monica McCabe: Currently, we have four law school clinics listed in our clinic directory and eight organizations, such as Volunteer Lawyers for the Arts referral services, listed in our pro bono directory. Between the law school clinics and the pro bono organizations, the majority of the country is covered in terms of free or reduced-fee services for CCB parties. We have been told by a few other schools that they are working to establish clinics that would serve CCB parties. We have gradually been adding clinics and organizations since opening day and hope more law school clinics and pro bono organizations will sign up to offer their services to CCB claimants and respondents.

So far, the clinics are involved in three proceedings, but we expect more to follow. Anecdotally, we have heard that some clinics have provided advice to potential parties, who then either settled their dispute before filing or decided not to file.

On what larger entities, like corporations, LLCs, or associations, can do to ensure they know about claims brought against them.

Brad Newberg: Those companies can sign up for our Designated Service Agent Directory (DSAD). This is separate from the Office’s Service Provider’s Designated Agent Directory, for which a company might have provided a contact name to the Copyright Office. If a company is on our DSAD list, a claimant must serve the designated service agent for service to be effective. Claimants may serve the designated service agent by mail and often by email, which is much easier than traditional means of service. Also, to the extent companies are already discussing a claim with a claimant or potential claimant, the company can work with the claimant as to where to serve the claim or can waive service altogether. Waiver of service gives a respondent extra time to file their response to a claim.

On how the CCB’s default process differs from that in federal court.

David Carson: The CCB has numerous procedural safeguards set up to reduce defaults—more than exist in federal court. It encourages both sides to participate in the process, makes sure that clearly invalid claims don’t get through compliance review, and, even if there is a default after service of a claim, requires that claimants actually have to prove their case and justify the requested damages award. And if the respondent isn’t there to raise a defense, we will consider any defenses that appear from the face of the claim to be applicable.

Respondents who are in default are given several opportunities to re-engage. Even after a default determination, the respondent is given one last opportunity to oppose the default determination, including by submitting evidence, before the CCB issues a final determination.

On facilitating settlements.

Monica McCabe: The CCB has worked well to facilitate settlements between parties. The CCB is aware of at least thirty-three cases that have been dismissed because of a settlement, and anecdotally, the CCB knows that various other claims have been dismissed or withdrawn due to settlement. The CCB has held several settlement conferences in which cases were settled. We have a few more coming up on the schedule, so this number is certain to increase as more cases move to the next phase.

On whether the CCB is achieving the goal of providing a more affordable and streamlined system for resolving copyright disputes.

David Carson: Yes, we believe the CCB is achieving this goal. The costs of federal court litigation are overwhelming for most individuals and business entities. These increased costs are often the result of federal court discovery, expansive motion practice, and, when it gets that far, trial. For most cases, the CCB’s streamlining of these aspects of a copyright dispute saves most of the time and money usually spent by the parties in federal court. The extensive expertise of the Copyright Claims Officers and the copyright claims attorneys also enables the CCB to get to the heart of the copyright issues much more easily than most courts can.

 

Find more information about the CCB, including relevant resources and directories on the Board’s website, ccb.gov, and more information about the Copyright Office at copyright.gov.

 

¹A glossary of terms related to the Copyright Claims Board and its work is available in each chapter of the CCB Handbook.

²Please note, the statistics and numbers included in this blog post cover the period from June 16, 2022, to October 31, 2023.