Copyright Office Issues Final Rule on Several Aspects of Smaller Claim CCB Proceeding

On January 16, the U.S. Copyright Office published a final rule in the Federal Register amending agency regulations on small infringement claims filed at the Copyright Claims Board (CCB). Responding to comments from both the legal and copyright industries, the Copyright Office’s final rule addresses disputes to the form of CCB proceeding chosen by claimants, as well as the discretion of CCB officers in penalizing evidentiary violations. As drafted, the Office’s final rule on smaller claim proceedings will become effective on February 15.

The Copyright Office first published its final rule on active proceedings and post-determination procedures at the CCB in May 2022. While the Copyright Alternative in Small-Claims Enforcement (CASE) Act establishing the CCB allows for claims up to $15,000, aspects of the May 2022 rule provided streamlined proceedings for smaller damages claims under $5,000. Smaller claim proceedings at the CCB feature limited discovery, prohibit expert testimony and informal initial and merits conferences instead of formal hearings.

Although the May 2022 rule was issued by the Copyright Office as final, the Office also requested further public comments on the regulations as drafted. The agency’s update to the final rule this week, which focuses on language found in 37 CFR §§ 220, 222 and 226, follows comments submitted separately by the Copyright Alliance and the New York Intellectual Property Law Association (NYIPLA).

Copyright Alliance Sought Clarified Language Around Evidentiary Violations

The Copyright Alliance’s suggestions centered around clarifications to regulatory language that allows claimants to change their form of proceeding during the period between the claimant’s filing and service of the initial notice to the respondent. The Copyright Alliance, which represents artists’ interests in copyright matters, was concerned that proposed regulatory wording would allow claimants to change from a standard claim to a smaller claim, but not vice versa. The organization also sought clarified language regarding remedies following a party’s violation of evidentiary rules, as the current wording seemed to exclude remedies for evidentiary submissions not served on or provided by other parties.

In both cases, the Copyright Office agreed to minor adjustments to Section 226, which regulates smaller claim proceedings, based on the Alliance’s suggestions. Although the Office clarified that claimants can switch their form of proceeding prior to the initial notice, the agency declined to extend those changes to other regulatory language given the references to election procedures in the CCB Handbook. In clarifying that presiding officers can issue the same remedies for failures to submit evidence and submissions of evidence undisclosed to another party, the Office noted that appropriate remedies for either violation were not limited to the imposition of adverse inferences.

Copyright Office Declines Additional Briefing Prior to Merits Conferences

In its comments on the Copyright Office’s final rule, NYIPLA raised concerns related to concurrent standard and smaller claim proceedings, which would increase both the costs and complexity of proceedings before a tribunal originally enacted as a cost-effective alternative to U.S. district court. The lawyers’ association was also opposed to regulatory language that would create a concurrent standard proceeding when a smaller claims respondent files a counterclaim exceeding $5,000 in damages. NYIPLA also recommended allowing parties to submit written responses as a form of rebuttal to position statements that parties may file before a merits conference.

The Copyright Office did incorporate NYIPLA’s suggestion that the CCB should hold conferences with parties to determine whether respondent counterclaims over $5,000 should result in separate proceedings or a consolidated proceeding using either standard or smaller claims procedural. However, the Office declined to make the other changes proposed by NYIPLA. Forcing the consolidation of cases in response to larger counterclaims would frustrate the voluntary nature of CCB proceedings, the agency concluded. Similarly, the Office concluded that the additional briefing proposed by NYIPLA would increase the filing burden on parties as well as case timelines in opposition to the intent behind creating the smaller claims process.

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