How the Copyright Claims Board Can Lighten the Federal Court Docket

This blog post is adapted from an article written by Copyright Claims Officers Brad Newberg, Monica McCabe, and David Carson that was originally published in The Judges’ Journal, Volume 63, Number 4, Fall 2024, a publication from the American Bar Association’s Judicial Division.

The Copyright Claims Board (CCB), established by the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020 in December 2020, and operational since June 16, 2022, is a voluntary government tribunal offering an alternative to federal court for copyright claims with damages of no more than $30,000 at stake. One lesser-known feature of the CCB is that it can help alleviate the pressure of an over-burdened federal court docket by hearing and deciding small copyright claims, including ones already filed in federal court.

Federal courts have exclusive jurisdiction over copyright claims, regardless of their size. However, federal litigation can be costly for the majority of litigants who need to hire an attorney to navigate the process. Copyright litigation can also be quite time-consuming for federal judges and their staff. Studies have shown that the average copyright case costs well over $300,000. Many copyright claims are fought over damages far less than that. There are copyright owners who believe the system is too expensive for them to enforce their rights, and there are copyright users or other defendants who feel bullied into settlements because it costs more to defend themselves than pay the plaintiff. The CCB was created to address these issues and decide these copyright claims in a streamlined manner with far less cost and time commitment for the parties.

History of the CCB and the CASE Act

Acknowledging the hurdles that parties with small copyright disputes face, Congress passed the CASE Act, which provided for the creation of the CCB to adjudicate certain smaller copyright claims for those seeking a low-cost alternative to federal court. The CCB is housed within the Copyright Office at the Library of Congress in Washington, DC, and its proceedings are entirely virtual. The CCB’s decisions are completely independent from the Office, and the CCB is prohibited from consulting with the Office on individual claims.

As provided by the statute, the Librarian of Congress appointed three Copyright Claims Officers, each of whom has vast experience with copyright law. Cumulatively, the Officers have decades of experience representing parties on both sides of copyright disputes. The CCB is also staffed with three copyright claims attorneys—who help the Officers with certain aspects of a proceeding and answer procedural questions from participants—and two additional supporting employees.

Since its launch, the 1,000-plus cases filed involve practically every type of copyrightable work, such as movies, books, plays, photographs, software, and songs. The first two years of operations have seen the CCB process and manage cases involving a wide variety of parties, from pro se individuals to small businesses, as well as major movie studios, record companies, and technology companies.

The CASE Act specifically envisioned that, with the parties’ consent, district courts could refer the parties’ case to this cost-efficient and streamlined venue to resolve their copyright dispute.

What Can the CCB Decide?

The CCB is empowered to handle only copyright-related claims seeking monetary damages of $30,000 or less. Specifically, it can decide claims of copyright infringement, requests for declarations of noninfringement, and claims of misrepresentation in a Digital Millennium Copyright Act (DMCA) takedown notice or counter-notice. It can also handle counterclaims fitting those categories.

How Are CCB Cases Streamlined?

The purpose of the CCB is to provide some of the benefits of a traditional small claims court to litigants with small copyright claims. The parties in a CCB case, called claimants and respondents, can expect to encounter two major similarities to federal copyright litigation: due process requirements similar to federal court and application of federal copyright law. But CCB procedures are streamlined, comparatively lowering the time commitments and expenses of the parties. Importantly, the CCB is designed to be manageable by parties who choose to represent themselves, although hiring an attorney is also permitted.

Note that in cases not referred by a court, respondents have sixty days after being served to opt out of the CCB proceeding. Claimants pay a filing fee in installments—an initial fee when filing their case and the remaining fee when the case moves forward to an active proceeding. If the respondent opts out, the claimant is not required to pay the remainder of the fee, and the case is dismissed without prejudice. This allows the claimant to then file their claim in federal court if they so choose.

A noticeable difference between the CCB and federal court is the CCB’s user-friendly electronic filing system, eCCB. This system offers clear steps and an interactive interface. For claims and responses, the parties are taken through a series of questions designed to elicit all necessary information for the CCB and other parties. Parties are encouraged to enter information directly into eCCB’s online forms. The parties may also attach evidence or additional documentation to their filings.

Since its launch, the CCB has become very familiar with dealing with pro se parties and attorneys who may not have the same level of experience as those who specialize in copyright. Officers use conferences to explain procedures to the parties and guide them through each stage in the process. The CCB website provides a list of pro bono law clinics and organizations that may be willing to help parties with minimal or no fees.

One of the biggest benefits to participants at the CCB is that all conferences and appearances before the CCB are conducted over Zoom. Neither parties nor their attorneys have to spend time and money traveling to a courthouse. The distance between the location of the claimant and respondent is no barrier. Note, however, that the CASE Act restricts CCB’s jurisdiction to US-based, nongovernment individuals or companies.

The CCB’s discovery process is significantly streamlined compared to federal court proceedings. Discovery is the process by which the parties exchange information and documents relevant to the issues in a case. While copyright disputes generally involve fewer documents and witnesses than many other complex federal cases, the CCB further simplifies this process for smaller copyright claims. Key differences include

• no depositions,
• no third-party subpoenas, and
• use of standardized interrogatories (questions about the case that a party must answer) and document requests.

Therefore, if a claimant or respondent wants evidence from a third party, they need to get it voluntarily.

How Does the CCB Decide Cases?

At the end of the brief discovery period, the parties have a status conference with an Officer, where the Officer explains the “Presenting Your Case” aspect of a CCB proceeding. This blog post focuses on “standard” cases, but there is an option for even more streamlined discovery and a somewhat different process in a case where the claimant agrees at the beginning not to seek more than $5,000 in damages and asks for the “smaller” claims track. In a standard case, once the CCB orders that testimony should be filed, the claimant submits their papers, the respondent has time to respond, and the claimant may then submit an optional reply.

Testimony consists of all the evidence a party wants to present. A party may introduce any witness statement they have, including their own. In many CCB cases, a party’s witness statement is the only witness statement submitted. A party may also submit a “party statement,” which is equivalent to a short brief. Although a party may cite cases in their party statement, they are not required to because the Officers apply their independent knowledge of the law. The Officers’ copyright law experience results in equal treatment of claims and defenses, including those presented by pro se parties or attorneys with less copyright experience, who might not be as familiar with copyright case law.

Once the submissions are in, the CCB typically decides the case on the papers. However, it can also hold a hearing. Any party may ask for a hearing, but whether to hold one is up to the discretion of the Officers, who can also decide to conduct a hearing on their own initiative. When deciding in a standard case, the CCB needs at least two Officers to agree on the resolution. Typically, all three Officers consider the case, but there are exceptions to this, such as if an Officer is recused or if an Officer conducted a settlement conference in the case. The CCB has been very successful in conducting settlement conferences. For case statistics, including settlement statistics, see the CCB’s Key Statistics handout.

There is a limited review process for CCB final determinations. To start, a party can request reconsideration. If that is denied, the party can request review by the Register of Copyrights. Finally, a party has the right to challenge the determination to a district court, but the CASE Act generally limits such challenges to determinations “issued as a result of fraud, corruption, misrepresentation, or other misconduct.”

Referrals from a U.S. District Court

The CASE Act provides a district court with the ability to refer appropriate copyright disputes to the CCB. Upon referral, the copyright dispute pending before the district court is stayed.

There are two main requirements for a case to qualify for referral. First, the parties need to consent to the referral, as CCB proceedings are voluntary. Second, the case must be eligible for the CCB to hear, meaning that the parties must agree that any damages would be capped at $30,000 and that only infringement, declaration of noninfringement, or DMCA misrepresentation claims will be heard by the CCB. Parties can agree to drop any other kinds of claims or keep those claims with the district court and can also lower the amount of damages demanded in their case so that it qualifies for determination by the CCB.

A copyright claim may be referred to the CCB regardless of its procedural status in the district court. As a result, the parties can agree to a referral at the pleading stage, after completion of discovery, or even after substantive motions that leave copyright claims unresolved. The CCB will work with the parties to commence their case at the appropriate point so they can quickly get to a decision on the merits. Also, a district court-referred case does not require the referred plaintiff to pay a second filing fee. After a district court has approved a referral, the parties should email the CCB (at [email protected]) for further instructions. The CCB will give the parties instructions on how to proceed, including how to open a docket in eCCB without following the standard process to file a case and pay a fee.

Once the CCB has reached a final determination in the referred case, the parties will inform the district court so that it can take any appropriate action and potentially close the case.

A Case Study

The CCB already has a track record of resolving a district court referral. In fact, the very first final determination the CCB issued was for a referral of a case from the Northern District of California, Oppenheimer v. Prutton, 21-cv-01382-NC. The court and the parties had stipulated to refer the matter even before the CCB opened its doors in 2022. The claimant also agreed to drop a claim regarding the removal of copyright management information and lowered the amount of damages demanded so that the entire dispute could be heard by the CCB.

In Oppenheimer, the parties had completed discovery before the case was referred to the CCB. Therefore, the CCB promptly moved to an initial conference with the parties where it was determined that nothing more was needed for the case to proceed. The parties then moved straight to the “Presenting Your Case” phase of the CCB proceeding. They submitted evidence, witness statements, and party statements, and a month after all papers were submitted, the CCB issued a decision in favor of the claimant, awarding $1,000 in statutory damages.

Having received the CCB’s final determination, the parties then informed the district court that they had stipulated to dismiss the matter with prejudice.

Bottom Line

The CCB offers an appealing option to resolve smaller copyright claims through a relatively quick and cost-effective process, which benefits both the parties and a busy federal court system. The CCB encourages federal courts and parties with copyright claims pending in federal courts to consider this voluntary tribunal, particularly in the context of alternative dispute resolution procedures. Ultimately, referrals to the CCB are a win-win for the courts and the parties. Find more information about the CCB and its proceedings at ccb.gov.