©2022. Published in Landslide, Vol. 14, No. 2, December/January 2022, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
January 12, 2022 Feature
Increasing Access to Justice: The New Copyright Claims Board
Susanna Frederick Fischer
An important change in the U.S. government’s attitude toward copyright is greater attention to access to justice issues. There has been growing concern that enforcing copyrights is too expensive for ordinary Americans. Until recently, the only way to bring a claim for copyright infringement was in federal court.1 Federal court proceedings are typically very expensive. The discovery process is a particular contributor to the costs of federal litigation, but motion practice and trial costs are also prohibitively high for many litigants, even in cases with relatively small economic value.2 There has been mounting concern in the United States Copyright Office and Congress that these costs deter many copyright owners and users, including artists and small businesses, from enforcing their rights in federal court.
Need for an Alternative Forum
The cost of federal litigation is a deterrent not only to copyright owners enforcing their copyrights through infringement actions, but also to users of copyrighted works who want to obtain a judicial declaration that their intended use of a copyrighted work is noninfringing. Similarly, these costs often hinder the recipients of takedown notices under the Digital Millennium Copyright Act of 1998 from challenging the validity of these notices in court.
Concerns about access to justice barriers for copyright litigants led the Copyright Office to hold hearings in 2006 on the possibility of implementing a new system for small copyright claims outside of the federal court system.3 At the request of the House Judiciary Committee, the Copyright Office carried out a study on small copyright claims, which was completed in 2013. The Judiciary Committee asked that the study report include “specific recommendations, as appropriate, for changes in administrative, regulatory and statutory authority that will improve the adjudication of small copyright claims.”4 The report issued by the Copyright Office recommended the creation of a new entity, based in the Copyright Office, to adjudicate small copyright claims as a voluntary alternative to federal court proceedings.5
Congress agreed that access to justice concerns created a need for an alternative forum to federal court for certain copyright claims. Congress designed this alternative forum to be outside of the federal Article III court system so that it would be much cheaper than federal court and would also be more hospitable to parties acting pro se, without legal representation. Legislation to implement a new copyright small claims process was enacted on December 27, 2020, as the Copyright Alternative in Small-Claims Enforcement Act of 2020 (CASE Act), which was part of the Consolidated Appropriations Act of 2021.6
New Administrative Court for Small Claims
The new small claims adjudicative body will be called the Copyright Claims Board, or CCB for short.7 It will be an administrative court situated in the United States Copyright Office, which is part of the Library of Congress.8 The plan is for the CCB to commence operations in late December 2021, but there is provision for this to be delayed, as a result of good cause such as the COVID-19 pandemic, until June 2022.9
The CCB will have three full-time judges, who will be known as copyright claims officers.10 The librarian of Congress will appoint them after consulting with the register of copyrights.11 Two of the three copyright claims officers must have “substantial experience in the evaluation, litigation, or adjudication of copyright infringement claims.”12 The third must have experience in alternative dispute resolution.13 All must be attorneys with not less than seven years of legal experience.14 Eventually, they will serve six-year terms, but the terms starting off will be four years, five years, and six years so that they end up staggered.15 The first officers, David Carson, Monica McCabe, and Brad Newberg, were appointed on July 20, 2021.
The CCB will have jurisdiction to hear a limited universe of civil copyright claims. These will include claims for copyright infringement, declarations of noninfringement, and claims for misrepresentation for a Digital Millennium Copyright Act takedown notice.16 Jurisdiction is limited to claims based on works for which a copyright has been registered. The CCB is not permitted to hear claims that a federal court has already determined or are pending before a federal court, unless that court issues a stay and permits the CCB action to proceed.
Participation in CCB Proceedings Encouraged
In keeping with the goal that the CCB be a friendly forum for pro se litigants, it will be quite simple to start a CCB proceeding. Before or at the same time as filing a claim with the CCB, a claimant must have obtained a copyright registration or filed an application for a registration that has not been refused.17 The claimant begins the CCB process by filing one or more claims relating to the registered copyright that include a statement of material facts and a filing fee.18 The CCB then will carry out an initial review to ensure that the claim can be brought under the CASE Act.19 If the CCB determines that it has jurisdiction over the claim, it will give the claimant notification in writing.20 The claimant must then serve the respondent with a copy of the filed claim and notice according to a prescribed form.21 The claimant must file proof of service with the CCB.22
If a respondent prefers that the forum be federal court, it must affirmatively opt out of CCB proceedings.23 Opting out must be done by filing a notice within 60 days of being served with a CCB claim.24 If a respondent opts out, then the claim no longer officially exists. A claimant can now choose to bring the claim in federal court if it decides to proceed with it.
To advance access to justice by encouraging the use of the more affordable CCB process for small copyright matters, there are several incentives for a respondent not to opt out of a CCB claim. One incentive is a cap on statutory damages, which cannot exceed $15,000 per work infringed.25 In a federal court proceeding, statutory damages could be as high as 10 times that amount if a work is infringed willfully, or double that amount if the infringement is not willful.26
Another incentive that is designed to increase access to justice is to reduce the costs and time for CCB proceedings by limiting discovery and motions and making the CCB process mostly written.27 Discovery is to be limited under Copyright Office regulations, although the CCB has some discretion to permit “additional relevant discovery.”28 The CCB process is intended to make it possible for litigants to effectively represent themselves without having to incur the expense of hiring attorneys. To help litigants who are not represented by attorneys, the CCB will not be required to follow the formal rules of evidence for many types of evidence, such as documents that are relevant to the claims.29
The Copyright Office is using its rulemaking processes to develop the CCB’s operations and processes, such as discovery and motion practice, filing claims, fees, and notifications of parties that claims have been brought against them, in more detail in regulations.30 The public will be invited and encouraged to participate in this rulemaking process.31 Such public participation will further aid the goal of increasing access to justice.
Constitutionality
Some have questioned whether the CCB is constitutional. One issue is whether the CCB process violates the right to a jury trial guaranteed by the Seventh Amendment.32 In its 2013 report, the Copyright Office correctly takes the view, based on case law, that the Seventh Amendment right to a jury is an individual right that can be waived by a party.33 The CCB does not use juries, but because the use of the CCB process is voluntary for both claimants and respondents, the Seventh Amendment does not pose a constitutional bar to the CCB.
A thornier constitutional question is whether the CCB is unconstitutional because it violates separation of powers as a non–Article III court created by the legislature and situated in a federal agency, the Copyright Office, which is part of the Library of Congress, the legislative branch. It is undeniable that Congress does have the constitutional authority, in some cases, to establish adjudicative bodies outside of Article III federal courts that resolve some types of disputes. Congress has created many such bodies, including the Tax Court, the Court of Appeals for Veterans Claims, and the Copyright Royalty Board. But whether and when a non–Article III adjudicative body will violate the separation of powers is not subject to clear doctrine.
In Northern Pipeline Construction Co. v. Marathon Pipe Line Co., Justice Brennan interpreted Article III highly formalistically and narrowly in a plurality opinion.34 Justice Brennan took the position that congressional authority to create non–Article III tribunals was limited to territorial courts, military tribunals, and administrative tribunals that determined disputes between the “government and others” pursuant to the public rights doctrine.35 Under this approach, Congress would have no authority to create non–Article III bankruptcy courts, nor would it have authority to create the CCB.
But other justices have interpreted congressional power less formalistically. For example, in Commodity Futures Trading Commission v. Schor, the U.S. Supreme Court held that it was constitutional for the Commodity Futures Trading Commission, a non–Article III body, to adjudicate a common-law counterclaim.36 A significant factor in the Court’s ruling was that there had been waiver of the right to have the counterclaim heard by a federal court.37 But the Court indicated that consent itself was not enough to make the non–Article III adjudicatory body constitutional. It was also necessary to determine that the adjudicatory process that Congress had created outside of the federal court system did not threaten the separation of powers by encroaching on the authority given to the judiciary under the system of checks and balances.38 Relevant factors were
the extent to which the “essential attributes of judicial power” are reserved to Article III courts, and, conversely, the extent to which the non–Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III.39
The cases in this area “do not admit of easy synthesis,” as Justice O’Connor pointed out in Schor.40
The fact that the CCB process is not mandatory but is voluntary is a factor in favor of its constitutionality, as is the fact that the rights to be adjudicated by the CCB are set out in a federal statute created by Congress. But the constitutionality of creating a non–Article III tribunal to adjudicate copyright rights is not completely settled, and the CCB is likely to face constitutional challenge.
Other Challenges
Even on the assumption that the CCB survives any such constitutional challenge, it is difficult to predict, before the Copyright Office finalizes the regulations governing the CCB process, whether it will succeed in its goal of improving access to justice in copyright cases. The Copyright Office plans for a more streamlined and simple process than federal court proceedings, but its simplicity will depend on the precise rules for evidence and motions that are developed.
Assuming that the regulations establish process and evidentiary regulations that are simple enough for litigants to represent themselves effectively without the cost and expense of counsel, it seems likely that the CCB process will be an attractive forum for copyright disputes between two small parties of limited means. But it is less clear that wealthy parties will agree to use the CCB process. A party with financial means has an incentive to try to subject a less wealthy opponent to the expense of federal court proceedings, in the hope of pressuring a favorable settlement. A cheaper and more streamlined process may well not override this strategic motivation to move the case into federal court. The goal of enhancing access to justice in copyright disputes for parties of limited financial means is laudable, but the CCB still faces considerable hurdles in achieving it.
Endnotes
1. 28 U.S.C. § 1338(a).
2. U.S. Copyright Off., Copyright Small Claims: A Report of the Register of Copyrights 13–14 (2013) [hereinafter Copyright Small Claims Report], https://www.copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf.
3. Id. at 5; see Remedies for Small Copyright Claims: Hearing Before the Subcomm. on Cts., the Internet & Intell. Prop. of the H. Comm. on the Judiciary, 109th Cong. (2006), https://www.govinfo.gov/content/pkg/CHRG-109hhrg26767/pdf/CHRG-109hhrg26767.pdf.
4. Letter from Hon. Lamar Smith, Chairman, U.S. House of Representatives Judiciary Comm., to Hon. Maria A. Pallante, Reg. of Copyrights & Dir., U.S. Copyright Off. (Oct. 11, 2011).
5. Remedies for Copyright Small Claims, U.S. Copyright Off., https://www.copyright.gov/docs/smallclaims (last visited Nov. 11, 2021).
6. Pub. L. No. 116-260, § 212, 134 Stat. 1182, 2176 (2020) (amending federal Copyright Act, 17 U.S.C. §§ 101 et seq., as a new chapter 15), https://www.copyright.gov/legislation/copyright-small-claims.pdf.
7. 17 U.S.C. § 1502(a).
8. Id.
9. Copyright Claims Board Frequently Asked Questions, U.S. Copyright Off., https://www.copyright.gov/about/small-claims/faq.html (last visited Nov. 11, 2021).
10. 17 U.S.C. § 1502(b)(1), (9).
11. Id.
12. Id. § 1502(b)(3)(A)(ii).
13. Id. § 1502(b)(3)(A)(iii).
14. Id. § 1502(b)(3)(A)(i).
15. Id. § 1502(b)(5).
16. Id. § 1504(c).
17. Id. § 1505. If registration is refused, the claim must be dismissed without prejudice.
18. Id. § 1506(e).
19. Id. § 1506(f)(1).
20. Id.
21. Id. § 1506(g).
22. Id.
23. Id. § 1506(i).
24. Id.
25. Id. § 1504(e)(1)(A)(ii)(I). The cap is even lower for works that are not registered, limited to $7,500 per work infringed or a total of $15,000 in one proceeding. Id. § 1504(e)(1)(A)(ii)(II). The CCB may not take willfulness into account, though it can consider whether the infringer has agreed to cease or mitigate the infringing activity. Id. § 1504(e)(1)(A)(ii)(III), (IV).
26. Id. § 504(c).
27. Coming Soon: Copyright Claims Board to Hear Small Copyright Claims, U.S. Copyright Off. (Feb. 2021), https://copyright.gov/about/small-claims/quick-facts.pdf.
28. 17 U.S.C. § 1506(n).
29. Id. § 1506(o).
30. Copyright Small Claims and the Copyright Claims Board, U.S. Copyright Off. https://www.copyright.gov/about/small-claims (last visited Nov. 11, 2021).
31. Id.
32. See U.S. Const. amend. VII (“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”).
33. Copyright Small Claims Report, supra note 2, at 27–29.
34. 458 U.S. 50 (1982) (plurality opinion).
35. Id. at 63–70.
36. 478 U.S. 833, 848–49 (1986).
37. Id. at 849–50.
38. Id. at 850.
39. Id. at 851.
40. Id. at 847.