Copyright Office Celebrates First Anniversary of Copyright Claims Board

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 provides another option for content creators and users for whom the legal costs or the amount in controversy did not make federal court litigation a viable or practicable solution. As a virtual-only tribunal, it is accessible at ccb.gov.

The CCB is a voluntary tribunal with a limited scope of claims and relief that can be granted. Under the CASE Act, the tribunal can only 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). The CCB can only grant monetary relief. Respondents may opt out after being served with a claim filed in the CCB.

To mark the CCB’s first anniversary, Associate Register of Copyrights and Director of Public Information and Education Miriam Lord (ML) sat down with the CCB’s three Copyright Claims Board Officers, David Carson (DC), Monica McCabe (MM), and Brad Newberg (BN), to talk about the Board’s work in the first year and where things are heading next.

ML: Congratulations on reaching this milestone! It’s been a year since the CCB opened its doors. If you had to write a progress report now, how would you describe the work so far and the ways in which copyright owners and users are responding to it?

BN: The CCB has been extremely well-received, and we are proud of what we have accomplished. In our first year, we have seen 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 access to a lower-cost and more efficient copyright dispute resolution for all. Parties range from individuals and small businesses to Fortune 500 companies. Claimants come from over 40 states (and Washington, D.C.) and—while only U.S. residents can be named as respondents—from over 20 countries.

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

ML: Have you been surprised by any trends you have seen in CCB claims or proceedings so far?

DC: In some respects, it is the lack of trends that is the most interesting. But we have noticed a few things that might surprise some observers. Our statistics at the end of our first year confirm the following:

• 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.
• Many people expected most of the 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, these claims are a plurality, not a majority of claims received. The majority of infringement claims we have received involve works other than photographs.
• So far, the rate of respondents opting out has been lower than anticipated. We actually have had more cases become active than we have had cases where the respondent has opted out.

ML: Let’s take a step back before we dig deeper. Can you give me a brief overview of why you think a claimant should consider using the CCB?

MM: The CCB is a voluntary alternative to federal court. It is intended to be a more accessible forum for claimants and respondents to resolve disputes because it is cheaper, faster, and more streamlined than federal court and because claimants and respondents can use it without needing a lawyer. Additionally, parties can do all of their interaction with the CCB from home, wherever that may be, because the CCB is completely virtual.

ML: You mentioned that you haven’t seen as many opt-outs as some expected. Why do you think that is, and why do you think the CCB is a good place for respondents to resolve disputes?

DC: From the outside, it’s easy to think that the CCB doesn’t have the benefits of a federal court and to dismiss it as an option, but in actuality, the CCB has so many more benefits. There are certainly some reasons for respondents to opt out of the CCB, perhaps if they absolutely think the claimant will never sue them in federal court, or if they feel they really need depositions or third-party subpoenas or discovery, which the CCB cannot offer.

But barring that, we think the CCB is the place to be for most respondents:

• There is a $30,000 cap on all the damages in a case, which is reduced to a $5,000 maximum for our smaller claims track. Moreover, the CCB is not just going to hand out maximum awards unless there is real proof that the damages should be that high. Compare those caps to federal courts, where damages can be unlimited and statutory damages are capped at $150,000 per work infringed where there is a timely registration.
• The CCB cannot consider willfulness to increase a damages award.
• You save the massive amounts of time and cost involved in federal court litigation, including federal court discovery such as depositions.
• Outside of certain jurisdictions, most federal judges have minimal experience with copyright, while the Copyright Claims Officers have decades of copyright experience, representing both plaintiffs and defendants.

ML: One of the exciting features of the CCB for users is that you do not need to have a lawyer to participate. We have seen that a majority of CCB parties represent themselves. What does the CCB do to help them navigate the process?

MM: When establishing processes and procedures for the Board, we tried our best to make them accessible to nonlawyers, as Congress intended. Examples include:

• The streamlined discovery procedures automatically eliminate many of the traps in which pro se parties could find themselves.
• 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. When a party files a claim or a response to a claim, rather than being asked to upload a complaint or answer like in federal court, eCCB provides a fillable form and walks the party through a series of questions, giving them information and tips along the way.
• The CCB has also created a detailed Handbook with more than 20 chapters that parties can reference depending on where they are in a proceeding.
• Finally, the CCB has facilitated the ability for law schools and pro bono organizations to sign up to help or represent parties before the CCB.

While the copyright claims attorneys cannot give legal advice, parties can email [email protected] for procedural questions and help navigating the process.

BN: 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.

Claims that are found noncompliant receive an order, typically giving specific details on how the claim is deficient and what the claimant would need to do to fix the claim. The claimant is given two chances beyond the initial claim filing to make corrections. In the first year, more than 50 previously “noncompliant” claims were amended and later found compliant through this process.

ML: On the flip side, where have you found that parties have the most difficulty navigating in CCB proceedings? Where are they doing better than you had anticipated?

MM: 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.

I should note that, at this point, most of our experience has been with claimants since, as we are still just a year in, most of our proceedings have not yet reached the active phase, where the respondent begins to participate.

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 works at issue because, as the adage says, a picture can be worth a thousand words. Our Handbook is also a great resource for pro se claimants navigating this process on their own. And many noncompliant claims become compliant after we have provided guidance in the compliance review process.

DC: 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 when they are sued in court, and the Board has noticed that navigating the rules regarding service can be difficult for nonlawyers. Because the rules 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. We have had to dismiss more claims for failure to serve the respondent than we had anticipated.

BN: When it gets to the merits, parties should pay more 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, our awards are likely to reflect the lack of evidence. We’ve taken note of this, 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.

ML: Earlier you mentioned compliance review. A lot of CCB claims never make it out of compliance review. Is this a negative indicator for the long-term effectiveness of the Board?

BN: Actually, it serves as a positive indicator of the CCB’s effectiveness: it shows that the system is working. The CCB is not here to let any claim go through regardless of its flaws. The purpose of our work and processes is to get to a fair and efficient resolution for the parties.

Sometimes, a claimant might file a claim that just doesn’t follow the rules, such as suing a foreign respondent, not having a copyright registration or application for registration, or filing a claim that does not involve copyright law. It is our job to weed things like that out, and we have also done our best to give more instruction on eCCB and in the Handbook to lower the frequency of such claims.

Sometimes, the claimant could have a claim if they gave more information, but the claimant is not familiar with the legal process and does not realize that both the respondent and the CCB need to understand the claim. The compliance review process allows us to give the claimant that sort of feedback. Some claimants are able to fix their claims accordingly, and some realize that their dispute might not be appropriate for the CCB. And that’s okay.

ML: Are there things you wish parties at the CCB would do differently?

MM: Many parties are doing just fine. It’s clear that they have done their homework and they understand what they are doing. But we’ve also seen others who may be plunging into the process without reviewing the materials or our dedicated website, ccb.gov. We created these resources, like our comprehensive Handbook, to help parties navigate our process. We would urge every party, at every step of the process, to review the chapter that addresses what to do at that step before they take that step.

ML: Let’s turn to the role lawyers play in CCB proceedings. As stated earlier, parties do not need a lawyer to participate in a CCB proceeding, but if they do avail themselves of legal representation, what role can lawyers play in the proceedings?

DC: In about 30% of our cases, at least one party is represented by a lawyer. It is true that you don’t need a lawyer to file or respond to a CCB claim, but that doesn’t mean it doesn’t help to have one. For many cases, a cost-benefit analysis would lead to the conclusion that it makes no sense to pay for a lawyer to represent you before the CCB, but quite a few parties have reached a different conclusion.

The CCB may also be a good training ground for first- and second-year lawyers who may not yet be ready to litigate in federal court but can still provide valuable representation to CCB claimants and respondents, perhaps on a pro bono or reduced-fee basis. And, even if a lawyer doesn’t formally represent a party, they can assist a party in drafting claims, responses, and testimony and otherwise provide advice to a party in a CCB proceeding. Just having a lawyer available to answer a self-represented party’s questions can make a difference.

ML: Before the CCB even opened, there was concern that the tribunal might only be used by the same few attorneys and claimants over and over again using potentially abusive practices. Have you seen that happening?

BN: No, we haven’t. The overwhelming majority of our claimants have filed only one or two claims. In part out of concern for this possible behavior, our regulations limit a claimant to no more than 30 proceedings in a 12-month period, and only one claimant has reached (or even come close to) that limit. Attorneys and law firms also have limits on the number of claims they can bring in a 12-month period, but only a small number of attorneys have filed multiple claims. We have seen no evidence that they are engaging in abusive activities and tactics before the Board.

ML: Some lawyers, law school clinics, or other pro bono organizations may be available to provide legal assistance or representation to claimants and respondents at the CCB. How big a role have law school clinics and pro bono organizations played in CCB proceedings?

MM: Currently, we have three law school clinics listed in our clinic directory and seven 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 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.

ML: What is the CCB team doing to continue to encourage participation by law school clinics and pro bono organizations?

MM: That’s a good question because outreach is key to increasing participation of law school clinics and pro bono organizations.

We have held two large roundtables for law school clinic and pro bono organization directors to provide general information and to answer questions. We follow up with emails to these organizations as well.

In addition, we have held a customized webinar for almost every participating organization or clinic. These webinars are intended to educate and answer questions for law students and attorneys to whom CCB cases would be referred. We have also provided webinars to those clinics considering whether to be a part of the clinic directory.

Thus far, our outreach to law schools has been mostly to schools with established IP clinics, but we are working to expand our reach to schools with other kinds of clinics, such as Access to Justice clinics.

ML: In the first year, what types of claims are being brought at the CCB, and are we seeing any specific trends?

DC: While the majority of claims brought before the CCB have been infringement cases, parties are also taking advantage of the CCB’s ability to handle claims for declarations of noninfringement and for misrepresentations in connection with false takedown notices or counter-notices. In fact, more than 60 claims filed before the CCB have contained a misrepresentation claim.

In addition to the already streamlined procedures before the CCB, the statute offers claimants an opportunity to choose a “smaller claims” track when they file a claim. In exchange for the claimants’ willingness to accept a $5,000 cap on potential damages, instead of the typical $30,000 limit, claimants get an even more streamlined process. Approximately 40% of all claimants have chosen this option.

ML: What types of works are involved in the proceedings being brought before the CCB, and are you seeing any trends so far?

BN: Pictorial, graphic, and sculptural works (which include photographs) are the most common works allegedly infringed, but that plurality is only approximately 40% of all infringement claims. That means the other 60% of infringement claims run the gamut of all types of works, with audiovisual works at about 20%, and musical works, sound recordings, and literary works each representing about 10%. Even within the category of pictorial, graphic, and sculptural works, there are a variety of works at issue besides photographs, such as illustrations and three-dimensional works.

ML: Some respondents at the CCB may also be corporations, LLCs, or associations. What can these larger entities do to ensure they get notice of the claims brought against them?

BN: Those companies can sign up for our Designated Service Agent Directory (DSAD). This is separate from any preexisting copyright agent a company might have for things like takedown notices under the DMCA. If a company is on our DSAD list, a claimant must serve the designated service agent for service to be effective. 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.

ML: How does the CCB’s default process differ from that in federal court?

DC: 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 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 to be applicable.

Respondents who are in default are given several opportunities to reengage. 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.

ML: Do you think the CCB is achieving the goal of providing a more affordable and streamlined system that delivers authoritative resolutions of copyright disputes?

DC: Yes, we do. The costs of federal court 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 this far, trial. For most cases, the CCB’s streamlining of these aspects of a copyright dispute removes 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.

ML: How does the CCB facilitate settlements?

MM: The CCB has worked well to facilitate settlements between parties. The CCB is aware of at least 15 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 also has some settlement conferences coming up on the schedule, so this number is certain to increase as more cases move to the next phase.

As mentioned earlier, the number of respondents opting out has been fewer than expected, which may mean that many respondents are viewing the CCB as a chance to get their disputes resolved fairly at a much lower cost than they could find in federal court.

ML: Finally, where can someone in a CCB proceeding—or considering whether to participate in a CCB proceeding—go to get more information on how to file or respond to a CCB claim?

MM: Great question! Parties can find a plethora of CCB information at our website, ccb.gov. There they can find our detailed Handbook to help them through all the aspects of a CCB proceeding, more information about the CCB and copyright, and key information about potential pro bono assistance with their claims.

Find more information about the Copyright Office at copyright.gov.