History of the CCB and the CASE Act
Acknowledging the hurdles that parties with smaller 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. Although proceedings are entirely virtual, the CCB is housed within the U.S. Copyright Office (Office) at the Library of Congress in Washington, D.C. However, 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 (Officers), the authors of this article, 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’s staff includes three copyright claims attorneys—who help the Officers with certain aspects of a proceeding and answer procedural questions from participants—and two additional supporting staff members.
The CCB’s work prior to its June 2022 launch also included creating a user-friendly electronic filing system from scratch, helping draft the CCB’s regulations and internal standard operating procedures, and crafting a handbook to guide participants through all aspects of a CCB proceeding.
The CCB began its operations on June 16, 2022. The 1,000-plus cases filed since its launch 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 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 process 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 Millenium Copyright Act (DMCA) takedown notice or counter-notice. It also can handle counterclaims fitting those categories.
The CCB does not have jurisdiction outside of those claims. As such, parties cannot add ancillary claims even if the copyright claim is the crux of the matter. If a plaintiff tried to add a contract claim or a trademark claim to their copyright claim, the CCB would be required to reject the entire case. For cases that are filed directly with the CCB—as opposed to cases referred by district courts—the CCB has a compliance process to give claimants three chances to submit a claim that is compliant with copyright law, the CASE Act, and CCB regulations.
How Are CCB Cases Streamlined?
The CCB is intended to provide some of the benefits of a traditional small claims court to litigants with smaller copyright claims. The parties, called claimants and respondents, can expect due process similar to federal court, and, of course, federal copyright law is used to decide CCB cases. But CCB procedures are streamlined, which lowers the time commitment and expense of the parties. Importantly, while parties may be represented by an attorney, the CCB is designed to be manageable by parties who choose to represent themselves.
A noticeable difference between the CCB and federal court relates to the CCB’s filing system. The CCB created eCCB, its electronic filing system, which is meant to be more user-friendly than PACER. eCCB 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 the other parties. Even within the CCB’s limited motion practice, parties typically input information directly into eCCB’s online forms. The parties also may attach evidence or additional documentation to their filings.
Since the CCB’s 2022 launch, the Officers have become very familiar with dealing with pro se parties and attorneys who may not have the same level of copyright experience as those who specialize in copyright. They use conferences to explain procedures to the parties and guide them from stage to stage in the process. The CCB website provides a list of pro bono law clinics and organizations that may be willing to help parties.
One of the biggest benefits to participants at the CCB is that all conferences and appearances before the CCB are conducted over Zoom. Parties or their attorneys do not need to use valuable time and money traveling to a courthouse. The distance between the locations of the claimant and the respondent is no barrier. The CCB’s jurisdiction, however, is based on the respondent’s being a U.S. resident (whether an individual or company) and not a federal or state government entity.
Note that while most cases simply require the application of general copyright law, the CCB will use the law of the applicable circuit (which may be from where the case was referred—or in its nonreferred cases, the law of the circuit with the most ties to the case), if there is a split among the circuits on an issue of substantive copyright law.
The CCB’s discovery process is significantly streamlined compared to federal court proceedings. 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 and document requests.
Therefore, if a claimant or respondent wants evidence from a third party, they need to get it voluntarily.
To make the discovery process even easier, the CCB’s Officers and staff created standard interrogatories and document requests. This discovery covers everything the parties will need in the vast majority of cases. These standardized requests save the parties a tremendous amount of time and even the playing field between pro se and represented parties. Parties do not have to wonder what to ask for, nor can they object to the discovery requests. The interrogatories are provided as fillable forms, making it simple for the parties to respond.
While parties may ask permission to seek additional discovery, such requests must be narrowly tailored to the issues at hand. The parties are required to try and work out any differences related to additional discovery or a failure to properly respond to the CCB’s standard discovery. If necessary, the CCB will hold a conference when a dispute arises that cannot be resolved among the parties.
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. In a standard case, once testimony is ordered, 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, including any witness statements they have, including from themselves. In many CCB cases, a party’s witness statement is the only witness statement submitted. A party also may 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 ensuring equal treatment of claims and defenses, including those presented by pro se parties or attorneys who have less copyright experience and might not be as familiar with copyright caselaw.
Once the submissions are in, the CCB typically decides the case on the papers. However, it also can 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 decide to conduct a hearing on their own initiative. When making a determination 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. Settlement procedures require that the Officer who runs the settlement conference be recused unless they are needed to break a tie between the other two Officers so that the parties can be more candid at the conference.
There is a limited appeals process for CCB final determinations. To start, a party can request reconsideration. If that is denied, the party can appeal to the register of copyrights, who considers the appeal using an abuse of discretion standard. Finally, a party has the right to appeal the determination to a district court, but the CASE Act generally limits appeals 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 qualifying copyright disputes to the CCB. The CCB explicitly qualifies as an alternative dispute resolution (ADR) process under section 651 of Title 28. 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 nonqualifying 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, Case No. 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. We encourage you to consider this voluntary tribunal, particularly in the context of ADR 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. The Office encourages anyone with questions about the CCB and the federal district court referral process to reach out to the CCB at [email protected].