Copyright Alternative in Small-Claims Enforcement (“CASE”) Act Regulations
| Published date | 26 March 2021 |
| Citation | 86 FR 16156 |
| Record Number | 2021-06322 |
| Section | Proposed rules |
| Court | Library Of Congress,U.s. Copyright Office |
16156
Federal Register / Vol. 86, No. 57 / Friday, March 26, 2021 / Proposed Rules
1
Public Law 116–260, sec. 212, 134 Stat. 1182,
2176 (2020).
2
See, e.g., H.R. Rep. No. 116–252, at 18–20
(2019). Note, the statute’s legislative history cited is
for H.R. 2426, 116th Cong. (2019), the CASE Act of
2019, a bill largely identical to the CASE Act of
2020.
3
U.S. Copyright Office, Copyright Small Claims
(2013) https://www.copyright.gov/docs/
smallclaims/usco-smallcopyrightclaims.pdf (‘‘Small
Claims Report’’).
4
H.R. Rep. No. 116–252, at 19.
5
17 U.S.C. 301(a); 28 U.S.C. 1338(a).
6
H.R. Rep. No. 116–252, at 17.
7
17 U.S.C. 1504(c)(1)–(3).
8
Id. 1509(b); see 28 U.S.C. 651.
9
17 U.S.C. 1503(b), 1506(a)(2); H.R. Rep. No.
116–252, at 21–22, 25–26.
10
H.R. Rep. No. 116–252, at 21–22, 33.
11
17 U.S.C. 1503(b)(2); see also id. 802(f)(1)(A)(i)
(parallel CRB provision).
12
See id. at 1503(a), 1504(a); H.R. Rep. No. 116–
252, at 17, 21.
13
17 U.S.C. 1506(g)(1), (i).
14
H.R. Rep. No. 116–252, at 21; Small Claims
Report at 97–99.
15
17 U.S.C. 1508(c)(1)(C).
Dated: March 5, 2021.
L.M. Dickey,
Rear Admiral, U.S. Coast Guard, Commander,
Fifth Coast Guard District.
[FR Doc. 2021–05154 Filed 3–25–21; 8:45 am]
BILLING CODE 9110–04–P
LIBRARY OF CONGRESS
U.S. Copyright Office
37 CFR Chapter III
[Docket No. 2021–1]
Copyright Alternative in Small-Claims
Enforcement (‘‘CASE’’) Act Regulations
AGENCY
: U.S. Copyright Office, Library
of Congress.
ACTION
: Notification of inquiry.
SUMMARY
: The U.S. Copyright Office is
issuing a notification of inquiry
regarding its implementation of the
Copyright Alternative in Small-Claims
Enforcement (‘‘CASE’’) Act. The CASE
Act establishes the Copyright Claims
Board (‘‘CCB’’), an alternative forum in
which parties may voluntarily seek to
resolve certain copyright infringement
and other claims. The Office must
establish regulations to govern the CCB
and its procedures, including rules
addressing service of notice and other
documents, waiver of personal service,
notifications that parties are opting out
of participating in the forum, discovery,
a mechanism for certain claims to be
resolved by a single CCB Officer, review
of CCB determinations by the Register of
Copyrights, publication of records,
certifications, and fees. The statute also
allows the Office to adopt several
optional regulations, including
regulations addressing claimants’
permissible number of cases, eligible
classes of works, the conduct of
proceedings, and default
determinations. The statute vests the
Office with general authority to adopt
regulations to carry out its provisions.
To assist in promulgating these
regulations, the Office seeks public
comment regarding the subjects of
inquiry discussed in this notification.
DATES
: Initial written comments must be
received no later than 11:59 p.m.
Eastern Time on April 26, 2021. Written
reply comments must be received no
later than 11:59 p.m. Eastern Time on
May 10, 2021.
ADDRESSES
: For reasons of governmental
efficiency, the Copyright Office is using
the regulations.gov system for the
submission and posting of public
comments in this proceeding. All
comments are therefore to be submitted
electronically through regulations.gov.
Specific instructions for submitting
comments are available on the
Copyright Office’s website at https://
www.copyright.gov/rulemaking/case-
act-implementation/. If electronic
submission of comments is not feasible
due to lack of access to a computer and/
or the internet, please contact the Office
using the contact information below for
special instructions.
FOR FURTHER INFORMATION CONTACT
: John
R. Riley, Assistant General Counsel, by
email at jril@copyright.gov, Brad A.
Greenberg, Assistant General Counsel,
by email at brgr@copyright.gov, or
Rachel Counts, Paralegal, by email at
rcounts@copyright.gov. They can each
be reached by telephone at 202–707–
8350.
SUPPLEMENTARY INFORMATION
:
I. Background
A. The CASE Act and the Copyright
Claims Board
On December 27, 2020, the President
signed into law the Copyright
Alternative in Small-Claims
Enforcement (‘‘CASE’’) Act of 2020.
1
The statute establishes the Copyright
Claims Board (‘‘CCB’’), a voluntary
tribunal in the Copyright Office
(‘‘Office’’) comprised of three Copyright
Claims Officers who have the authority
to render determinations on certain
copyright disputes that have a low
economic value (‘‘small copyright
claims’’). Congress created the CCB to
address the significant challenges of
litigating small copyright claims in
federal court,
2
a problem analyzed in
depth in the Office’s 2013 policy report,
Copyright Small Claims.
3
This report
included model legislation that
Congress drew on in developing the
statute, and Congress incorporated the
Office’s report and supporting materials
into the statute’s legislative history.
4
Prior to the CCB beginning operations,
jurisdiction to hear copyright
infringement suits resides exclusively in
federal courts.
5
The statute does not
displace or limit the ability to bring
copyright infringement claims in federal
court. Instead, the law provides an
alternative forum to decide small
copyright claims in a manner that is
more accessible to pro se parties and
other parties that otherwise could not
afford to litigate their claims.
6
The CCB has the authority to decide
copyright infringement claims (asserted
by copyright holders), claims seeking a
declaration of noninfringement (asserted
by users of copyrighted works or other
accused infringers), and
misrepresentation claims under 17
U.S.C. 512(f).
7
District courts can also
refer parties to have their disputes
decided by the CCB as part of their
alternative dispute resolution
programs.
8
While the statute mandates the
creation of the CCB, it does not change
the underlying copyright law with
respect to these disputes. The CCB will
employ existing case law in making its
determinations and, in the case of
conflicting judicial copyright precedents
that cannot be reconciled, the CCB
‘‘shall follow the law of the Federal
jurisdiction in which the action could
have been brought if filed in a district
court of the United States,’’ or, if the
action could have been brought in
multiple jurisdictions, the jurisdiction
that ‘‘has the most significant ties to the
parties and conduct at issue.’’
9
All CCB
determinations are non-precedential.
10
The CCB may consult with the Register
of Copyrights on general issues of law,
although, similarly to the Copyright
Royalty Board (‘‘CRB’’), it cannot do so
regarding the facts of any pending
matter or the application of law to those
facts.
11
Participation in the CCB is voluntary
for all parties.
12
In establishing the CCB,
Congress adopted a system whereby
respondents must be notified of a claim
asserted against them, and have the
opportunity to opt out of participating
in this alternative forum.
13
As with
private arbitration models, participants
may consent to participate in CCB
proceedings, waiving their ability to
have a dispute heard in federal court
including any right to a jury trial.
14
As
noted below, default determinations are
able to be reviewed and set aside by an
Article III judge, as an additional
safeguard for defaulting respondents.
15
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16
H.R. Rep. No. 116–252, at 22 (citing Stern v.
Marshall, 564 U.S. 462, 491 (2011)); 17 U.S.C.
1508(a).
17
Further, when parties elect to use the CCB’s
streamlined provisions for ‘‘smaller claims,’’
discussed below, total monetary damages are
capped at $5,000 total damages. 17 U.S.C. 1506(z).
18
Id. at 1504(e)(1)(A)(ii)(I).
19
Id. at 1504(e)(1)(A)(ii)(III).
20
Id. at 1506(y)(2).
21
Id. at 1504(e)(1)(D).
22
Id. at 1506(y)(2). ‘‘In extraordinary
circumstances,’’ the CCB can award costs and
attorneys’ fees over these limits, but only ‘‘where
a party has demonstrated a pattern or practice of
bad faith conduct’’ and ‘‘in the interests of justice.’’
Id. at 1506(y)(2)(B).
23
Id. at 1506(y)(2).
24
Id. at 1506(v)(2), (y)(2).
25
Id. at 1504(e)(2)(A)(i), (e)(2)(B). This provision
also applies to parties making knowing material
misrepresentations under section 512(f). Id. at
1504(e)(2)(A)(ii).
26
Id. at 1502(b).
27
Id. at 1502(b)(3)(iii).
28
Id. at 1502(b)(3)(ii).
29
Small Claims Report at 100–101.
30
17 U.S.C. 1503(a), 1506.
31
Id. at 1503(a).
32
Id. at 1506(w), (x).
33
17 U.S.C. 1508(c); H.R. Rep. No. 116–252, at 22;
see 9 U.S.C. 10(a) (under the Federal Arbitration
Act, arbitral awards may be vacated for corruption,
fraud, undue means, evident partiality, misconduct,
or exceeding the powers delegated to the
arbitrators).
34
17 U.S.C. 1506(c)(1).
35
Public Law 116–260, sec. 212(d), 134 Stat. at
2199.
36
17 U.S.C. 1502(b)(1).
37
Id. at 1510(a)(1).
38
Id.
39
Id. at 1510(a)(2)(A).
40
H.R. Rep. No. 116–252, at 23.
If a party fails to comply with a CCB-
ordered award, the party seeking relief
will need to seek a district court order
to enforce it.
16
The CCB can award multiple types of
relief. First, the CCB can award
monetary relief of up to $30,000 per
proceeding regardless of the number of
works involved, exclusive of attorneys’
fees and costs (discussed below).
17
This
can include (1) actual damages and
profits attributable to the infringement,
or (2) statutory damages. When
awarding statutory damages, the CCB
must apply different monetary caps and
availability criteria than those applied
in federal court. Specifically, the CCB
may award up to $15,000 in statutory
damages per work infringed for works
registered within the Copyright Act’s
section 412 time limits,
18
and up to
$7,500 in statutory damages per work
infringed for non-timely registered
works (with a cap of $15,000 per
proceeding for non-timely registered
works). Additionally, when assessing
statutory damages, the CCB may not
consider or make any finding that an
infringement was willful, which
typically increase statutory damages in
federal court.
19
The CCB can only award reasonable
costs and attorneys’ fees if doing so
would be in the interests of justice.
20
Costs and attorneys’ fees are not
included in the monetary damages
caps,
21
but instead have their own
limitations. When a party engages in
bad-faith conduct, the CCB can award
reasonable costs and attorneys’ fees up
to $5,000, or $2,500 for pro se
claimants.
22
Bad-faith conduct includes
where ‘‘a party pursued a claim,
counterclaim, or defense for a harassing
or other improper purpose or without a
reasonable basis in law or fact.’’
23
Such
bad-faith conduct could include failure
to prosecute, including failure to meet
one or more deadlines or requirements
set forth in the CCB’s schedule without
justifiable cause.
24
Second, while the CCB cannot issue
injunctive relief, it can require that an
infringing party cease or mitigate its
infringing activity, but only in the event
such party agrees and that agreement is
reflected in the proceeding’s record.
25
The CCB will be comprised of three
Copyright Claims Officers and
supported by at least two Copyright
Claims Attorneys and additional
support staff.
26
One Officer must have
‘‘substantial familiarity with copyright
law and experience in the field of
alternative dispute resolution.’’
27
The
other two Officers must possess
‘‘substantial experience in the
evaluation, litigation, or adjudication of
copyright infringement claims’’ and
together must have ‘‘represented or
presided over a diversity of copyright
interests, including those of both
owners and users of copyrighted
works.’’
28
These provisions are
intended to ensure that the CCB is
comprised of copyright experts, while
‘‘ensur[ing] a balanced system sensitive
to both sides of infringement claims’’
and ‘‘undertak[ing] a holistic analysis of
infringement claims with an eye toward
the resourceful resolution of
disputes.’’
29
The Officers’ duties include ensuring
that claims, counterclaims, and defenses
are properly asserted, managing CCB
proceedings and issuing rulings,
requesting production of information
and relevant documents, conducting
hearings and conferences, facilitating
settlements, maintaining records,
providing public information, and
ultimately rendering determinations and
awarding monetary relief.
30
Copyright
Claims Attorneys will assist the Officers
in the administration of their duties and
assist the public with understanding the
CCB’s procedures and requirements.
31
After a determination is rendered, the
CCB may reconsider it for clear error of
law or fact, and parties may
subsequently seek review from the
Register of Copyrights to determine
whether the Board abused its discretion
in denying reconsideration.
32
The CCB’s
determinations may also be reviewed by
a district court ‘‘on limited but well-
established grounds that parallel
Section 10 of the Federal Arbitration
Act’’; that is, in the event of fraud,
corruption, misrepresentation, or
misconduct, or if the CCB exceeded its
authority or failed to render a final
determination concerning the subject
matter.
33
In addition, in the event of a
default determination, a district court
may vacate, modify, or correct the
determination if it is established that the
default or failure to prosecute was due
to excusable neglect.
34
Congress directed the CCB to begin
operations by December 27, 2021; the
Register of Copyrights may, for good
cause, extend that deadline by not more
than 180 days.
35
The Officers must be
appointed by the Librarian of Congress,
after consultation with the Register,
36
and the Office must hire other staff,
promulgate necessary regulations, and
establish related procedures, public
materials, and forms. It must
operationalize its administration of the
various services provided by the CCB
and other units of the Office, such as
filings, payment administration, and
mail processing. Because information
technology development is centralized
at the Library of Congress, the Library’s
Office of the Chief Information Officer
(‘‘OCIO’’) must also identify and deploy
any necessary IT resources for the CCB,
such as virtual hearing platforms and a
case management system.
Congress vested the Office with broad
regulatory authority to carry out the
statute,
37
and specified that the Register
shall ‘‘provide for the efficient
administration of the Copyright Claims
Board, and for the ability of the
Copyright Claims Board to timely
complete proceedings instituted under
this chapter, including by implementing
mechanisms to prevent harassing or
improper use of the Copyright Claims
Board by any party.’’
38
Together, the
statute and legislative history make
clear that Congress intended for the
Office to implement regulations in a
manner that ‘‘furthers the goals of the
Copyright Claims Board’’
39
and
establishes an ‘‘efficient, effective, and
voluntary’’ forum for parties to resolve
their disputes.
40
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41
Copyright Small Claims and the Copyright
Claims Board, https://copyright.gov/about/small-
claims (last visited Mar. 21, 2021).
42
See, e.g., NCTA—The internet & Tele. Ass’n &
Motion Picture Ass’n Ex Parte Letter (May 20,
2020), https://www.copyright.gov/rulemaking/
section111/ncta-mpa.pdf (regarding regulations
governing cable operators’ reporting practices under
17 U.S.C. 111); Joint Comments of Nat’l Music
Pubs.’ Ass’n & Dig. Media Ass’n Submitted in
Response to Copyright Royalty Board’s November 5,
2018, Notification of Inquiry (Dec. 10, 2018)
(regarding regulations relating to the MMA’s
enactment).
43
See, e.g., 83 FR 65747, 65753–54 (Dec. 21,
2018) (identifying guidelines for ex parte
communications in MLC and DLC designation
proceeding); 82 FR 49550, 49563 (Oct. 26, 2017)
(identifying guidelines for ex parte communications
in the Office’s ‘‘Section 1201’’ rulemaking); see
also, Ex Parte Communications,https://
www.copyright.gov/rulemaking/mma-designations/
ex-parte-communications.html (last visited Mar. 21,
2021) (ex parte guidelines for MLC and DLC
designation rulemaking); Ex Parte Communications,
https://www.copyright.gov/1201/2018/ex-parte-
communications.html (last visited Mar. 21, 2021)
(ex parte guidelines for Seventh Triennial Section
1201 Proceeding, 2018).
44
See, e.g., Nat’l Cable & Telecomms. Ass’n v.
Brand X internet Servs., 545 U.S. 967, 980 (2005)
(‘‘[A]mbiguities in statutes within an agency’s
jurisdiction to administer are delegations of
authority to the agency to fill the statutory gap in
reasonable fashion.’’) (citing Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 865–66
(1984)).
45
H.R. Rep. No. 116–252 at 22.
46
Id. (providing additional mechanisms, such as
the ability to participate in hearings virtually).
47
17 U.S.C. 1506(f)(1); H.R. Rep. No. 116–252, at
22.
48
17 U.S.C. 1506(f)(1)(B).
49
Id.
50
Id.
51
Id. at 1506(f)(2). Further, claims against online
service providers for infringement via storage of,
referral, or linking to infringing material that may
be subject to 17 U.S.C. 512(b)–(d)’s limitations on
liability must contain an additional claimant
affirmation. The claimant must affirm that they
previously notified the service provider of the
claimed infringement and the service provider
failed to remove or disable access to the material
expeditiously, in accordance with the applicable
section of 17 U.S.C. 512, or the claim will be
dismissed without prejudice. Id. at 1506(f)(1)(C)(i).
52
H.R. Rep. No. 116–252, at 31; 17 U.S.C. 1506(g).
53
17 U.S.C. 1506(g)(1).
B. Overview of the Rulemaking Process
To establish necessary and
appropriate regulations to govern the
CCB, the Office seeks public comment
on the subjects discussed below. The
Office is issuing this notification of
inquiry as the first step in promulgating
the regulations required by the statute.
The Office plans to subsequently
publish multiple notices of proposed
rulemaking, each focusing on one or
more of the regulatory categories
discussed below. The Office has
concluded that this approach will help
to efficiently and thoughtfully conduct
the relevant regulatory proceedings in
light of the scope of the statute and the
Office’s available resources. To aid the
Office’s review, it is requested that if a
submission responds to more than one
of the below categories, it be divided
into discrete sections with headings
clearly indicating the category being
discussed in each section. Comments
addressing a single category should also
have a heading that clearly indicates
which category is being discussed. The
Office also notes that it tentatively
expects to produce a CCB practice
guide, which will not be a substitute for
existing statutes, regulations, or case
law, but will provide parties, potential
parties, and the public at large with
basic information concerning the CCB
and its procedures. The Office has
already established a web page
describing the CCB, which will be
frequently updated as implementation
work proceeds.
41
The Office encourages parties to file
joint comments on issues of common
agreement.
42
The Office will also
consider holding informal meetings to
gather additional information on
discrete issues prior to publishing
notices of proposed rulemaking,
establishing guidelines for ex parte
communications. Relevant guidelines
will be issued at https://
www.copyright.gov/rulemaking/case-
act-implementation/, and will be similar
to those imposed in other Office
proceedings.
43
Any such
communications will be on the record to
ensure the greatest possible
transparency, and will supplement, not
substitute for, the written record.
While all public comments are
welcome, the Office encourages parties
to provide specific proposed regulatory
language for the Office to consider and
for others to comment upon. Similarly,
it would be helpful for commenters
replying to proposed language to offer
alternate language for consideration.
Commenters are reminded that while
the Office has regulatory authority to
implement the statute, it is constrained
by the law Congress enacted; the Office
can fill statutory gaps, but will not
entertain proposals that conflict with
the statute.
44
II. Subjects of Inquiry
A. Initiating CCB Proceedings, Notice,
and Service of Notice and Claim
As the legislative history explains, the
CCB is designed ‘‘to meet the Due
Process Clause’s guarantee of
fundamental fairness in a federal
proceeding,’’
45
including through
mechanisms providing for service of
notice and claims and waiver of service
provisions modeled after the Federal
Rules of Civil Procedure’s (‘‘FRCP’s’’)
Rule 4.
46
In many cases, service of the
notice may be the respondent’s
introduction to the nature of the dispute
and to the option to have the dispute
resolved by the CCB. As discussed
below, for a claim to become an active
proceeding, it must go through multiple
procedural safeguards, including an
initial claim review by a CCB attorney
and service of multiple notices to the
respondent, with the corresponding
opportunity to opt out of the
proceedings.
The statute provides that a claim must
first be reviewed by a CCB attorney for
sufficiency under the statute and any
relevant regulations before the claim
and notice of service is served upon a
respondent.
47
If the claim is reviewed
and found to be noncompliant, the CCB
will send the claimant a notice of
noncompliance and the claimant can
amend the claim within thirty days of
receiving the notice, without paying an
additional fee.
48
If the claim remains
noncompliant after the amended version
is refiled, the claimant can amend it
again within an additional thirty-day
period after receiving the CCB’s second
notice of noncompliance.
49
If the
claimant does not file a compliant claim
or misses either thirty-day refiling
period, the claim will be dismissed
without prejudice.
50
These rules equally
apply to counterclaims.
51
Once
approved by the CCB, the claim must be
served on the respondent and proof of
service must be filed within ninety days
of such approval ‘‘using a standardized
process and notice format established by
the Register.’’
52
1. Content of Initial Notice
To ensure that respondents are
provided with proper notice of the
claims asserted against them, along with
information enabling a non-represented
party to understand what the CCB is,
and the process required to elect to
participate or decline to do so, the
statute details certain elements that
must be included in the initial notice
accompanying the claim. In addition,
the Office is required to create a
prescribed notice form and is vested
with regulatory authority to specify
further requirements to be included.
At a minimum, the served notice must
meet several requirements prescribed by
statue. The notice must be in a form that
describes the CCB and the nature of a
CCB proceeding.
53
In addition, the
notice must include ‘‘a clear and
prominent explanation of the
respondent’s right to opt out of the
proceeding and the rights the
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H.R. Rep. No. 116–252, at 22; 17 U.S.C.
1506(g)(1).
55
17 U.S.C. 1506(g)(1).
56
Fed. R. Civ. P. 4(a)(1).
57
Admin. Off. of the U.S. Cts., Summons in a
Civil Action (June 2012) https://www.uscourts.gov/
sites/default/files/ao440.pdf (form AO 440).
58
Clerk for the Circuit Court of Cook County,
Summons (Dec. 2020), http://
www.cookcountyclerkofcourt.org/Forms/pdf_files/
CCG0001.pdf (form CCG 0001 A).
59
New Jersey Courts, Small Claims Summons
and Return of Service (Sept. 2018), https://
njcourts.gov/forms/10534_appendix_xi_a2.pdf.
60
Id.
61
Copyright Small Claims and the Copyright
Claims Board, https://copyright.gov/about/small-
claims (last visited Mar. 21, 2021).
62
17 U.S.C. 1506(h).
63
Id. at 1506(h)(1).
respondent waives if it does not.’’
54
In
particular, it must include a prominent
statement that by not opting out of a
CCB proceeding within sixty days of
receiving the notice, the respondent
‘‘loses the opportunity to have the
dispute decided by a court created
under article III of the Constitution of
the United States’’ and ‘‘waives the right
to a jury trial regarding the dispute.’’
55
The Office now solicits comment
regarding additional regulatory
requirements to help ensure that the
initial notice conveys a clear
explanation of the CCB, deadlines
associated with the pending claim, the
ability and method for the respondent to
opt out of the proceeding, and the
benefits and consequences of
participating or declining to do so. For
example, FRCP 4, which prescribes the
contents of a summons, requires a
summons to name the court and parties,
be addressed to the defendant, provide
contact information for the plaintiff,
state the time a defendant must appear,
notify the defendant that failure to
appear will result in a default judgment,
and be signed by the clerk and bear the
court’s seal.
56
The Office solicits
comments regarding whether analogous
requirements would be appropriate for a
notice to a CCB respondent.
The Office notes that a variety of
federal and state courts provide
templates for summonses, which are
succinct documents of two to three
pages. For example, the Central District
of California provides a fillable PDF that
can be digitally signed by the process
server; typical for federal court, it
references the relevant rules of civil
procedure but does not provide
explanatory information.
57
Cook
County, Illinois provides a similar form
for state proceedings, but its form
includes additional explanatory
language as well as a list of hotlines to
call for more information.
58
It begins:
You have been named a defendant in the
complaint in this case, a copy of which is
hereto attached. You are summoned and
required to file your appearance, in the office
of the clerk of this court, within 30 days after
service of this summons, not counting the
day of service. If you fail to do so, a judgment
by default may be entered against you for the
relief assked in the complaint. THERE WILL
BE A FEE TO FILE YOUR APPEARANCE. To
file your written appearance/answer YOU DO
NOT NEED TO COME TO THE
COURTHOUSE.
Further tailored to pro se participants,
the form for a small claims summons
provided by the Superior Court of New
Jersey small claims division, provides
stark warnings to respondents and
explains the small claims process.
59
It
reads:
YOU ARE BEING SUED!
IF YOU WANT THE COURT TO HEAR
YOUR SIDE OF THIS CASE, YOU MUST
APPEAR IN COURT. IF YOU DO NOT, THE
COURT MAY RULE AGAINST YOU. READ
ALL OF THIS PAGE AND THE NEXT PAGE
FOR DETAILS.
In the attached complaint, the person suing
you (who is called the plaintiff) briefly tells
the court his or her version of the facts of the
case and how much money he or she claims
you owe. You are cautioned that if you do
not come to court on the trial date to answer
the complaint, you may lose the case
automatically, and the court may give the
plaintiff what the plaintiff is asking for, plus
interest and court costs.
The summons is offered in Spanish as
well as English.
60
Because a CCB attorney must review
the claim for sufficiency before a
claimant is allowed to proceed with
service upon the respondent, the Office
is tentatively inclined to require the
inclusion of a docket number assigned
by the CCB on the notice as well as the
claim. The docket number (or similar
unique identifier) could be used by the
respondent to access information
regarding the proceeding, including
how to opt out of a proceeding. The
Office queries whether additional data
beyond inclusion of the docket number
(with ability to verify the proceeding on
a CCB website or case management
system) should be required to provide
indicia that the notice relates to an
official government proceeding.
In addition, because the CCB is
designed to be accessible to participants
who are not represented by attorneys,
the Office is tentatively planning to
require links to the Office’s public
information about the CCB to be
included on the notice.
61
The Office
solicits comments on specific
educational information that may be
helpful to include, while being mindful
that the notice must remain easy to
understand and avoid overwhelming
respondents. For example, should the
notice provide information describing
copyright or copyright infringement, as
well as potential defenses that may be
available to a respondent, such as fair
use?
The Office seeks comments on each
specific field of information that
claimants should be required to include
in the notice. In addition, the Office is
considering the content of the
prescribed notice form, and welcomes
public input. In responding, parties are
encouraged to provide specific
suggestions for language to be included
on the form to describe the CCB and the
decision facing the respondent,
including by submitting sample notice
forms if they desire.
2. CCB Respondent Notifications
(Second Notice)
In addition to the initial notice sent
by the claimant, the statute requires that
the Register promulgate regulations
‘‘providing for a written notification to
be sent by, or on behalf of, the Copyright
Claims Board to notify the respondent of
a pending proceeding.’’
62
Similar to the
initial notice, this notice must ‘‘include
information concerning the
respondent’s right to opt out of the
proceeding, the consequences of opting
out and not opting out, and a prominent
statement that, by not opting out within
60 days after the date of service . . . the
respondent loses the opportunity to
have the dispute decided by a court
created under article III of the
Constitution of the United States’’ and
‘‘waives the right to a jury trial
regarding the dispute.’’
63
This notice supplements the initial
notice served by the claimant and is
intended to facilitate understanding of
the official nature of the documents and
proceeding, encourage a respondent to
review the materials, and overall,
increase the likelihood that a
respondent engages with the asserted
claim and knowingly elects to proceed
or opt out of the CCB proceeding. The
Office seeks public input on any issues
that should be considered relating to the
second notice, including but not limited
to its content and how to ensure that
recipients understand that it is an
official Federal Government
notification. The Office also invites
suggestions regarding the format and
procedure for sending the second
notice, considering that Congress allows
such notices to be sent ‘‘by, or on behalf
of’’ the CCB. For example, should the
Office create the notice and post it on
the proceeding’s docket for the claimant
to download and deliver to the
respondent? Should the Office require it
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64
Id. at 1506(g). The copy of the claim served
must be the same as the claim that was filed with
the CCB. Id. at 1506(g)(2).
65
Id. at 1506(g)(3).
66
Id. at 1506(g)(9); H.R. Rep. No. 116–252, at 32.
67
17 U.S.C. 1506(g).
68
Id. at 1504(d)(3). The Office invites commenters
to address whether the phrase ‘‘Federal or state
Governmental entity’’ will be clearly understood by
potential claimants.
69
For a minor or an incompetent individual,
service can only be effected by ‘‘complying with
State law for serving a summons or like process on
such an individual in an action brought in the
courts of general jurisdiction of the State where
service is made.’’ 17 U.S.C. 1506(g)(4), (8).
70
See Fed. R. Civ. P. 4(e).
71
17 U.S.C. 1506(g)(4)(A).
72
Id. at 1506(g)(4)(C).
73
Id. at 1506(g)(4)(D).
74
Id. at 1506(g)(5)(A)(i).
75
Id. at 1506(g)(5)(A)(ii). If the service agent is
‘‘one authorized by statute and the statute so
requires,’’ the claimant must also mail a copy of the
notice and claim to the respondent. Id.
76
Id. at 1506(g)(5)(B).
77
Id.
78
Id.
79
See id. at 512(c)(2).
80
37 CFR 201.38.
81
DMCA Designated Agent Directory, https://
copyright.gov/dmca-directory (last visited Mar. 21,
2021).
82
From a user experience perspective,
commenters may also wish to access the Office’s
searchable database of Pre-1972 Sound Recordings.
Schedules of Pre-1972 Sound Recordings, https://
www.copyright.gov/music-modernization/pre1972-
soundrecordings/search-soundrecordings.html (last
visited Mar. 21, 2021).
83
17 U.S.C. 1506(g)(5)(B).
84
Id. at 1506(g)(6).
85
Id. at 1506(g)(6)(A)–(B).
86
Id. at 1506(g)(7)(A).
87
Id. at 1506(e), (g), (g)(6).
88
Id. at 1506(j).
to be delivered in hard copy or by email,
and how should delivery be
documented? Given the small dollar
value nature of the claims, and similar
standards for federal court, the Office is
not inclined to require physical delivery
by a method other than the U.S. Postal
Service. Similarly, if the CCB itself is
responsible for serving the second
notice, rather than generating and
providing the notice to the claimant
who would make service on the CCB’s
‘‘behalf,’’ this would require additional
Office operational resources.
3. Service of Process and Designated
Agents
After a CCB attorney has reviewed a
claim and found it suitable to proceed,
a claimant must serve notice of the
proceeding and a copy of the claim on
the respondent either via personal
service or pursuant to waiver of
personal service.
64
Personal service may
be effected by someone who is both ‘‘not
a party to the proceeding and is older
than 18 years of age’’
65
and both service
and waiver of service may only occur
within the United States.
66
Proof of
service must be filed with the CCB
within ninety days after the CCB
determines that the claim is suitable for
resolution.
67
The statute includes
separate rules of service for individuals
and corporations, partnerships, and
unincorporated associations, including
those organizations using designated
service agents. No claims can be brought
‘‘by or against a Federal or State
governmental entity.’’
68
Service on an individual
69
may be
accomplished by using procedures
analogous to those in the FRCP.
70
Service can be accomplished by
‘‘complying with State law for serving a
summons in an action brought in courts
of general jurisdiction in the State
where service is made.’’
71
Service can
also be accomplished by ‘‘leaving a copy
of the notice and claim at the
individual’s dwelling or usual place of
abode with someone of suitable age and
discretion who resides there.’’
72
Finally, service on an individual can be
accomplished by ‘‘delivering a copy of
the notice and claim to an agent
designated by the respondent to receive
service of process or, if not so
designated, an agent authorized by
appointment or by law to receive service
of process.’’
73
Like individuals, corporations,
partnerships, or unincorporated
associations can be served ‘‘by
complying with State law for serving a
summons in an action brought in courts
of general jurisdiction in the State
where service is made.’’
74
These
organizations can also be served by
delivering the notice and claim to ‘‘an
officer, a managing or general agent, or
any other agent authorized by
appointment or by law to receive service
of process in an action brought in courts
of general jurisdiction in the State
where service is made.’’
75
Under the statute, such corporations,
partnerships, or unincorporated
associations may elect to receive CCB
claim notices via a designated service
agent.
76
The Office is required to
establish regulations governing this
designated service agent option and to
‘‘maintain a current directory of service
agents that is available to the public for
inspection, including through the
internet.’’
77
The Office may charge
these organizations a fee to maintain the
designated service agent directory.
78
When commenting on aspects related
to the CCB’s service agent directory,
parties may want to review the Office’s
existing designated agent directory for
online service providers, created
pursuant to the Digital Millennium
Copyright Act (‘‘DMCA’’).
79
Under the
DMCA, the Office has promulgated
regulations setting forth requirements
for service providers to designate agents
to receive notifications of claimed
infringement,
80
and maintains a
centralized online directory of those
agents.
81
The directory allows the
public to search by service provider and
view both current and historical
designated agent information, and is
populated automatically with
information supplied by service
providers through the Office’s online
system.
82
To designate an agent in that
system, a service provider must supply
its full legal name, physical street
address, any alternate names used by
the service provider, and the name,
organization, physical mail address,
telephone number, and email address of
its designated agent. The registration
process costs $6 per designation and
must be renewed every three years.
Commenters are encouraged to
discuss whether and to what extent the
Office should look to its DMCA
designated agent regulations with
respect to implementing the statute’s
service agent directory. The Office is
interested in comments on whether and
how a corporate parent should identify
its progeny and how to make the
database easy to update, search, and
use. Further, and as noted in the section
on fees below, the Office requests
parties’ comments on the appropriate
fee to ‘‘cover the costs of maintaining
the directory.’’
83
The statute also allows a respondent
to waive personal service by returning a
signed form to the CCB. The claimant
must provide this form to the
respondent ‘‘by first class mail or by
other reasonable means’’ and return of
the form must be at no cost to the
respondent.
84
The claimant’s waiver
request must be in writing, include a
notice of the proceeding and a copy of
the claim, state the date the request was
sent, and provide the respondent thirty
days to respond.
85
The personal service
waiver does not constitute a waiver of
the respondent’s right to opt out of the
proceeding.
86
The Office may establish additional
regulations governing commencing
proceedings, personal service, and the
personal service waiver request.
87
The
statute requires the Office to enact
regulations for service of any documents
submitted or relied upon in a CCB
proceeding, other than the notice of the
proceeding and the copy of the claim.
88
The Office seeks public input on any
issues that should be considered
relating to the CCB’s service
requirements, including but not limited
to waiver and the service of documents
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89
Id. at 1506(aa)(1), 1507(b)(2)(A).
90
Id. at 1506(i).
91
Id.
92
Id.
93
See Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 107 (2012);
see also Lindh v. Murphy, 521 U.S. 320, 330 (1997)
(describing ‘‘negative implications raised by
disparate provisions’’).
94
17 U.S.C. 1506(aa)(2).
95
Id. at 1506(aa)(4).
96
Id. at 1506(aa)(3).
97
Id. at 1507(b)(2).
98
Id. at 1506(a)(1), 1510(a)(1).
99
H.R. Rep. No. 116–252, at 23.
100
17 U.S.C. 1506(n).
101
Id. at 1506(n)(1).
other than the initial notice and claim.
To facilitate efficiency of
communication with respect to claims
brought by parties outside the United
States, the Office inquires whether
foreign claimants should be required to
designate a domestic service agent and
to provide such information to
respondents.
B. Opt-Out Provisions
Generally, respondents who do not
wish to have a claim heard by the CCB
can opt out of proceedings on a case-by-
case basis. The statute includes two
additional opt-out provisions: a blanket
opt-out for libraries and archives who
do not wish to participate in any CCB
proceedings and a separate opt-out for
parties who receive notice that they are
class members in a pending class action
involving the same transaction or
occurrence as the CCB proceeding. The
Office is directed to establish
regulations to govern these opt-out
actions.
89
1. Respondent’s Opt-Out
As outlined above, after being
properly served, respondents may opt
out of a CCB proceeding by providing
written notice to the CCB within sixty
days of the date of service, although the
CCB can extend that 60-day period in
the interests of justice.
90
If a respondent
does not opt out in a timely manner, the
proceeding will become active and the
respondent will be bound by the CCB’s
determination as provided for in section
1507(a).
91
If the respondent does opt
out, the proceeding will be dismissed
without prejudice.
92
The Office seeks
public input on any issues that should
be considered relating to the
respondent’s written opt-out notice,
including the content of a notice and the
methods that a respondent may use to
execute that notice (e.g., paper or
electronic).
In addition, the Office solicits
comments regarding whether it should
create a publicly accessible list of
entities or individuals who have opted
out of using the CCB in prior
proceedings, as well as any other
considerations relevant to whether the
CCB should reflect a system to recognize
entities or individuals that wish to
consistently opt out of CCB proceedings.
On the one hand, Congress did not
establish a blanket opt-out for any
entities other than libraries and
archives, and in that case, it did so
expressly by statute. This suggests that
the Office lacks authority to adopt other
blanket opt-outs by regulation.
93
On the
other hand, the Office understands that
entities intending to consistently opt out
may appreciate efficiency or at least a
way to publicize their intentions, and
that potential copyright owner
claimants may also wish to avoid
incurring filing fees as a result of
serving claims upon entities who
consistently opt out.
2. Library and Archives Opt-Outs
The statute requires the Office to
promulgate regulations for libraries and
archives to ‘‘set forth procedures for
preemptively opting out of proceedings
before the Copyright Claims Board’’ and
‘‘compile and maintain a publicly
available list of the libraries and
archives that have successfully opted
out.’’
94
For purposes of this provision,
‘‘the terms ‘library’ and ‘archives’ mean
any library or archives, respectively,
that qualifies for the limitations on
exclusive rights under [17 U.S.C.]
108.’’
95
Office regulations cannot
require a library or archives to pay a fee
to opt out of a CCB proceeding or
require renewal of the opt-out
decision.
96
The Office seeks public input on any
issues that should be considered
relating to the library and archives opt-
out regulations, including whether a
library or archive should be required to
prove or certify its qualification for the
limitations on exclusive rights under 17
U.S.C. 108, and thus for the blanket opt-
out provision, and how to address
circumstances where a library or
archives ceases qualifying. In particular,
given the prevalence of libraries and
archives being located within larger
entities, including but not limited to
colleges and universities or
municipalities, the Office invites
suggestions addressing which entities,
principals, or agents may opt out on
behalf of a library or archive, as well as
any associated certifications. The Office
also seeks input related to transparency
and functionality considerations with
respect to its publication of the list of
libraries and archives that have opted
out. Finally, the Office is interested in
whether it should include a regulatory
provision that specifies that this opt out
extends to employees operating in the
course of their employment.
3. Class Action Opt-Outs
Any party to an active proceeding
before the CCB who receives notice of
a pending class action arising out of the
same transaction or occurrence as the
proceeding before the CCB, in which the
party is a class member, shall either
seek to dismiss the CCB proceeding or
opt out of the class action proceeding,
‘‘in accordance with regulations
established by the Register of
Copyrights.’’
97
The Office seeks public
input on any issues that should be
considered relating to regulations
governing dismissal or opt-outs related
to class action proceedings, including
specific proposed regulatory language.
C. Additional CCB Practice and
Procedures
The Office also requests comment on
specific practice and procedural issues:
Discovery, defaults, certifications for the
various filings made by participants,
and procedures for ‘‘smaller claims.’’ As
noted, the statute provides the Office
with broad flexibility to regulate CCB
proceedings.
98
In this regard, the Office
heeds Congress’s observation that
‘‘[w]hile principles of federal procedure
are relevant to the CASE Act, the Act is
not intended to simply mimic federal
practice’’ and that the Office should
‘‘tak[e] advantage of the grant of
regulatory authority to create rules and
procedures most appropriate to create
an efficient dispute resolution forum
that also affords due process
protections.’’
99
In addition to those
specific areas, the Office welcomes
comment on other CCB practices and
procedures.
1. Discovery
The statute allows for limited
discovery in CCB proceedings.
Discovery may include ‘‘the production
of relevant information and documents,
written interrogatories, and written
requests for admission,’’ as established
by Office regulations.
100
If a party makes
a request for additional, limited
discovery and has demonstrated good
cause for that request, the CCB ‘‘may
approve additional relevant discovery,
on a limited basis, in particular matters,
and may request specific information
and documents from participants in the
proceeding and voluntary submissions
from nonparticipants, consistent with
the interests of justice.’’
101
If a party
does not ‘‘timely provide discovery
materials in response to a proper request
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102
Id. at 1506(n)(3).
103
H.R. Rep. No. 116–252, at 17.
104
Small Claims Report at 13.
105
See, e.g., Commonwealth of Massachusetts,
Trial Court of the Commonwealth, Small Claims
Standards sec. 5:02, (Nov. 2001), https://
www.mass.gov/doc/small-claims-standards/
download (‘‘Discovery is not routinely available’’).
106
17 U.S.C. 1506(n)(2).
107
See, e.g., 37 CFR 303.5(k) (rules governing
exclusion or redaction of personally identifiable
information); Protective Order, Determination of
Rates and Terms for Digital Performance of Sound
Recordings and Making of Ephemeral Copies to
Facilitate Performances (Web V), No. 19–CRB–
0005–WR (2021–2025) (June 24, 2019), https://
app.crb.gov/document/download/4012.
108
17 U.S.C. 1506(u) (The respondent’s failure to
appear or participate ‘‘can be demonstrated by the
respondent’s failure, without justifiable cause, to
meet 1 or more deadlines or requirements set forth
in the [CCB’s proceeding] schedule.’’).
109
Id. at 1506(u)(1).
110
Id.
111
Id. at 1506(u)(2).
112
Id. at 1506(u)(3).
113
Id. at 1506(u)(4).
114
Id. at 1508(c)(1)(C).
115
H.R. Rep. No. 116–252, at 24.
116
17 U.S.C. 1506(u)(1).
117
See H.R. Rep. No. 116–252, at 24–25.
118
17 U.S.C. 1506(v)(1).
119
Id. at 1506(v)(2).
120
Id.
121
Id. at 1506(v)(2), (y)(2).
for materials that could be relevant to
[disputed] facts’’ after being provided
notice and an opportunity to respond
and upon good cause shown, the CCB
may ‘‘apply an adverse inference with
respect to disputed facts’’ against that
party.
102
Congress limited discovery in CCB
proceedings to ‘‘ensure that the
proceedings are streamlined and
efficient.’’
103
As described by the
Office’s Copyright Small Claims report,
discovery in the federal courts is the
‘‘primary reason for the length of federal
court litigation’’ and is associated with
‘‘often substantial costs and potential for
abuse by exploitative litigants.’’
104
While some discovery may often be
necessary in a CCB proceeding, the
Office is mindful that additional
discovery could compromise the value
and efficiency gained by using the CCB,
in lieu of using the federal courts. The
Office further notes that some state
small claims systems adopt
presumptions against any discovery at
all.
105
The Office seeks public input on any
issues that should be considered
relating to discovery in CCB
proceedings, including but not limited
to a limit on the number of
interrogatories and requests for
admission allowed without leave, what
constitutes ‘‘good cause’’ to request
additional information, standards for
determining when information is
confidential, and which provisions of
FRCP Rule 26 should or should not be
imported or adapted into the CCB’s
regulations. For example, are there
circumstances where a Rule 26(f)
conference is appropriate, and if so,
should the Office require the use of a
specific template that sets out proposed
deadlines and allows parties to fill in
blanks? In cases where discovery
extends to production of electronically
stored information (‘‘ESI’’), should the
CCB create rules specifically relating to
ESI? In responding, commenters are
encouraged to direct the Office to any
practices or model rules of specific
jurisdictions, and describe how their
functioning may be worth emulating or
avoiding.
2. Protective Orders
Any documents or testimony that
contain confidential information can be
subject to a protective order issued by
the CCB, upon the request of a party and
for good cause shown.
106
In considering
issues related to discovery, commenters
are encouraged to address to the CCB’s
handling of confidential information
(including the redacting of such
information) and the issuance of
protective orders. For example, should
the CCB adopt a default model
protective order that the parties can
enter into, with appropriate adaptations
as needed? In addressing this topic,
commenters may wish to review the
Copyright Royalty Board’s
confidentiality and redaction
regulations and recent protective
orders,
107
or provide the Office with
model rules from jurisdictions that may
prove useful.
3. Respondent’s Default and Claimant’s
Failure To Prosecute
Where a proceeding becomes
‘‘active,’’ i.e., the respondent has not
timely opted out of the CCB process,
and the respondent ‘‘has failed to
appear or has ceased participating in the
proceeding,’’ the CCB may enter a
default determination.
108
To obtain a
default determination, the claimant
must ‘‘submit relevant evidence and
other information in support of the
claimant’s claim and any asserted
damages.’’
109
The CCB must then
evaluate this evidence, including any
other requested submissions, and
determine if those materials are
sufficient to support a finding in the
claimant’s favor and, if so, any
appropriate relief and damages.
110
If the CCB determines that a default
judgment is proper, it must prepare a
default determination and provide a
written notice to all the respondent’s
addresses reflected in the CCB’s
proceeding records, including email
addresses, giving the respondent thirty
days to submit an opposition to the
proposed default determination.
111
If
the respondent timely responds to the
CCB’s notice, the CCB must consider the
response when issuing its
determination, which is then not
considered a ‘‘default.’’
112
If the
respondent does not respond to the
notice, the CCB ‘‘shall proceed to issue
the default determination as a final
determination,’’ although the CCB
‘‘may, in the interests of justice, vacate
the default determination.’’
113
A federal
court can also vacate the default
determination ‘‘if it is established that
the default . . . was due to excusable
neglect.’’
114
As Congress made clear, the statute
‘‘establishes a strong presumption
against default judgments’’ and provides
greater protections against default than
in the federal courts.
115
The statute also
gives the Office the authority to
supplement the statutory default rules
by establishing additional requirements
that must be met before the CCB can
enter a default determination.
116
The
Office seeks public input on any issues
that should be considered relating to a
respondent’s default, including but not
limited to regulations regarding proof of
damages in a default proceeding.
117
The statute also contains rules
regarding a claimant’s failure to
complete service and failure to
prosecute. If a claimant does not
complete service on a respondent
within ninety days of the CCB
approving the claim, the CCB will
dismiss the proceeding without
prejudice.
118
After a proceeding
becomes active, if a claimant fails to
meet one or more deadlines or
requirements set forth in the CCB’s
schedule without justifiable cause, the
CCB may dismiss the claimant’s
claims.
119
The CCB must first provide
the claimant written notice that it has
missed a deadline and a thirty-day
period to respond to the notice, and
must consider the claimant’s response,
if any, before dismissing the claims.
120
As noted above, failure to prosecute can
constitute bad-faith conduct, potentially
subjecting the claimant to pay the
respondent’s costs and attorneys’
fees.
121
4. Smaller Claims
The Office is required to promulgate
regulations for a single CCB Officer to
hear and resolve ‘‘smaller claims,’’ i.e.,
claims involving $5,000 or less
(exclusive of any attorneys’ fees and
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Id. at 1506(z).
123
H.R. Rep. No. 116–252, at 17.
124
17 U.S.C. 1506(z).
125
See H.R. Rep. No. 116–252, at 23.
126
Fed. R. Civ. P. 5, 5.2, 6, 7, 7.1, 8, 10–13, 15,
16.
127
See, e.g., Superior Court Rules—Small Claims
(DC 2017) http://www.dccourts.gov/sites/default/
files/2017-05/Superior%20Court%20Rules%20
of%20Procedure%20for%20the%20
Small%20Claims%20and%20Conciliation%20
Branch.pdf; see also DC Small Claims and
Conciliation Branch Handbook, http://
www.dccourts.gov/sites/default/files/matters-docs/
Small_Claims_Handbook_Revised_May_2015.pdf.
128
See, e.g., 37 CFR 201.4(c)(4)–(5) (recordation-
related certifications), 210.10(j) (section 115
cumulative statements of account certification),
210.27(i) (section 115 monthly reports of usage
certification for blanket licensees), 210.29(g)
(Mechanical Licensing Collective’s section 115
royalty statement certification).
129
See, e.g., id. at §§201.4(d)(4) (redaction of
personal identifying information), 201.17(e)(14)
(statements of account submitted by cable systems),
201.38(c)(2) (DMCA designated agent attestation).
130
Id. at §210.34.
131
Id. at part 205.
132
See id. at parts 2, 7, 11, 42.
133
17 U.S.C. 1506(o); Small Claims Report at 126;
see e.g., District of Columbia Courts, Small Claims
Mediation 2 (Sept. 2017), https://www.dccourts.gov/
sites/default/files/Small%20Claims%20
Mediation%2009-17.pdf (the DC small claims
mediation program is expressly not subject to the
Federal Rules of Evidence). Cf. Fed. R. Evid. (2020).
134
17 U.S.C. 1506(o).
135
Id. at 1506(o)(2).
136
Id.
137
See, e.g., Fed. R. Evid. (2020).
138
17 U.S.C. 1506(t)(3).
139
Id. at 1503(a)(1)(I); 1508(b).
140
Id. at 1506(t)(3).
141
See eCRB, https://app.crb.gov/; Public Access
to Court Electronic Records, https://
pacer.uscourts.gov/.
costs).
122
Congress expects that these
smaller claim proceedings will
‘‘otherwise have the procedural
protections of any other claim before the
Copyright Claims Board,’’
123
and that a
determination issued under the smaller
claims provisions will ‘‘have the same
effect as a determination issued by the
entire Copyright Claims Board.’’
124
The
Office seeks public input on any issues
that should be considered relating to
smaller claims proceedings, including
but not limited to any regulations that
will increase the efficiency of the single-
Officer proceeding while retaining the
CCB’s standard procedural protections.
5. Other Rules of Practice and
Procedure; Evidentiary Rules
While the discussion above identifies
a number of filings and procedures
related to the operation of the CCB from
initiation of claims through the Board’s
rendering of determinations, it is not
comprehensive. The Office solicits
suggestions, including specific
proposals, regarding other procedural
rules that would be helpful to the CCB’s
goal of establishing an efficient dispute
resolution forum while respecting due
process protections.
125
Because the CCB
is designed to be simpler and less
formal than federal courts, the Office
encourages plain language suggestions
and urges commenters to consider what
rules are necessary to codify by
regulation and in what areas it is
advisable for CCB Officers to retain
discretion and flexibility.
In particular, the Office solicits
comment regarding whether to propose
adopting additional provisions of the
FRCP on areas germane to the CCB’s
operations, with potential modifications
to simplify them and make them more
accessible. For example, commenters
may consider addressing rules such as:
Serving and filing pleadings and other
papers (Rule 5); privacy protections for
filings made with the court (Rule 5.2);
computing and extending time for
motion papers (Rule 6); pleadings
allowed (Rule 7); disclosure statement
(Rule 7.1); general and special rules of
pleadings (Rule 8); form of pleadings
(Rule 10); signing pleadings, motions,
and other papers; representations to the
Court, sanctions (Rule 11); defenses and
objections (Rule 12); counterclaim and
crossclaim (Rule 13); amended and
supplemental pleadings (Rule 15); and
scheduling and management (Rule
16).
126
Beyond the Federal Rules,
commenters are strongly encouraged to
consider whether other rules or
adjudicatory bodies may offer useful
models. Most notably, various state
court systems operate small claims
courts, which may contain helpful
language or approaches for the CCB to
model.
127
Federal courts, too, often have
model rules for their districts, including
rules tailored to pro se representations.
Comparable agency tribunals may also
offer useful analogues. For example, the
Copyright Royalty Board’s regulations
are codified at 37 CFR parts 350 through
355. Several Office regulations also
address related issues such as
certifications
128
and attestations,
129
confidentiality,
130
waiver, service of
process upon the Office, and production
of information by the Office.
131
In
addition, the U.S. Patent and Trademark
Office has promulgated rules governing
procedures and practices with respect to
operation of the Trademark Trial and
Appeals Board as well as the Patent
Trial and Appeals Board.
132
Like other small claims tribunals, CCB
proceedings are not subject to formal
rules of evidence.
133
The CCB can
consider relevant documentary and
other nontestimonial evidence as well
as relevant testimonial evidence.
134
The
testimonial evidence must be submitted
under penalty of perjury and is
normally limited to parties’ and non-
expert witnesses’ statements.
135
In
exceptional cases, the CCB may permit
expert witness testimony for good
cause.
136
In addition to rules of
procedure, the Office encourages parties
to comment upon issues relevant to
evidentiary rules.
137
In responding, the Office invites
commenters to propose specific
regulatory language so that this
notification may crystallize areas of
agreement and disagreement among the
commenting parties.
D. Public Access to Records and
Proceedings; Certifications; Case
Management System Considerations
The CCB will make its final
determinations available on a publicly
accessible website.
138
The CCB is also
required to certify official records of its
proceedings, including for review and
confirmation of CCB determinations by
a district court.
139
Additionally, the
Office must establish regulations
regarding publication of other CCB
determination records and information,
‘‘including the redaction of records to
protect confidential information that is
the subject of a protective order.’’
140
To maintain and publish the CCB’s
records, the Office has requested that
the OCIO provide the CCB with an
electronic filing and case management
system. The Office intends for this
system to provide capabilities
comparable to existing case
management systems, such as, those
operated in existing small claims courts,
the Copyright Royalty Board’s eCRB
platform, or the federal courts’ case
management/electronic case files
system, called PACER.
141
The system
would provide a mechanism to publish
CCB orders and determinations and
other information, as well as written
submissions to the CCB, including
claims and responses, on a public-facing
website.
In addition to specifically soliciting
information regarding issuance of
protective orders noticed above, the
Office seeks public input on other issues
relating to the CCB’s provision of access
to records and proceedings to the
general public, as well as certification of
records and determinations.
E. Register’s Review of CCB’s Denial of
Reconsideration
The CCB’s determinations are subject
to reconsideration or amendment by the
CCB itself, if a party submits a written
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142
17 U.S.C. 1506(w).
143
Id. at 1506(x).
144
Id.
145
Id.
146
Id. at 1506(e)(3).
147
Id. at 1506(x).
148
Id. at 1506(g)(5)(B).
149
Id. at 1506(aa)(3).
150
Id. at 1510(c); see H.R. Rep. No. 116–252, at
28 n.1.
151
17 U.S.C. 708(a). Section 708 contains other
requirements for setting certain fees, such as a
requirement to conduct a fee study for Congress or
limitations on fees for filing statements of account
in connection with certain statutory licenses that do
not appear to apply to CCB fees.
152
Copyright Office Fees, Notice of Proposed
Rulemaking, 83 FR 24054, 24055 (May 24, 2018).
153
17 U.S.C. 1504(g).
154
H.R. Rep. No. 116–252, at 31.
155
See, e.g., Cal. Civ. Proc. Code 116.231; Mich.
Comp. Laws 600.8407(2).
156
17 U.S.C. 1510(c).
157
Id. at 1504(g).
158
Id. at 1504(e)(1)(D).
159
Id. at 1506(f)(1).
160
Id. at 1506(e)(2), (y)(1).
161
Id. at 1506(y)(2); see also id. at 1510(a)(1)
(directing the Office to establish regulation
‘‘implementing mechanisms to prevent harassing or
improper use of the Copyright Claims Board by any
party’’).
162
The Office is also committed to providing
clear, accessible guidance to the public about the
CCB’s rules and procedures, outside of its
regulations.
request within thirty days of the final
determination.
142
Where the CCB denies
a party’s request for reconsideration of
a final determination, that party can
request that the Register review the
determination. Such review ‘‘shall be
limited to consideration of whether the
Copyright Claims Board abused its
discretion in denying reconsideration of
the determination.’’
143
A request must
be accompanied by ‘‘a reasonable filing
fee,’’ to be established by regulation.
144
After other parties have had an
opportunity to address the
reconsideration request, the Register
must either ‘‘deny the request for
review, or remand the proceeding to the
Copyright Claims Board for
reconsideration of issues specified in
the remand and for issuance of an
amended final determination.’’
145
The
Office seeks public input on any issues
relating to the Register’s review,
including any potential regulatory
provisions addressing the substance of
the request, e.g., inclusion of the reasons
the party believes the CCB abused its
discretion, post-review procedures, and
the amount of a reasonable filing fee.
F. Fees
The statute requires the Office to
establish multiple fees associated with
CCB proceedings. These include fees to
commence a CCB proceeding,
146
whether before the full CCB or a single
Officer, fees to initiate the Register’s
review of the CCB’s denial of
reconsideration,
147
and fees to ‘‘cover
the costs’’ associated with maintaining
the service agent directory.
148
As noted above, there shall be no fee
imposed upon libraries or archives
filing a blanket opt-out of proceedings
with the CCB.
149
The statute further
states that ‘‘[t]he sum total of . . . filing
fees’’ must be ‘‘not less than $100, may
not exceed the cost of filing an action in
a district court of the United States’’
(currently $400), and ‘‘shall be fixed in
amounts that further the goals of the
Copyright Claims Board.’’
150
The Office
tentatively interprets these monetary
limits as referring to the collective costs
associated with fees paid by claimants
to initiate proceedings, given the
provision’s comparison to costs of filing
an action in district court. For example,
the Office does not believe a fee
associated with an entity filing a notice
of service agent needs to fall under this
cap, since it would be paid by a
different entity than a claimant and
would not be associated with a
particular proceeding.
The statute’s fee-setting provisions
augment the general fee-setting
authority provided to the Office in
section 708 of the Copyright Act, which
authorizes the Register to fix fees for
certain services, including CCB services,
based on the cost of providing them.
151
The Office has previously interpreted
this requirement to permit it to ‘‘use fee
revenue from some services to offset
losses from others for which the fees are
kept low to encourage the public to take
advantage of the service.’’
152
As with
most of its services, the Office intends
to intake fees for the CCB via pay.gov.
The Office seeks public input on any
issues that should be considered
relating to CCB fees, including with
respect to the amounts for specific fees.
It is also interested in comments
evaluating whether fees to commence a
proceeding should be staggered to
require an initial fee and an additional
fee once the proceeding is active (i.e.,
obligating claimants with proceedings
that are likely to proceed to a
determination to bear greater costs than
claimants where respondents opt out),
whether fees for consideration and
determination by a single CCB Officer
should be lower than fees for standard
CCB proceedings, or any other related
topics.
G. Permissible Number of Cases
The Office has the power to limit ‘‘the
permitted number of proceedings each
year by the same claimant . . . in the
interests of justice and the
administration of the Copyright Claims
Board.’’
153
As described by Congress,
this power ‘‘functions as both a docket
management tool . . . and as protection
against abusive conduct.’’
154
The Office
expects the CCB to exercise this power,
and notes the likelihood that any initial
limitation may be revisited after the
CCB has established its workflows and
can better evaluate its expected
workload. The Office seeks public input
on any issues that should be considered
relating to the initial limitation of the
permitted number of proceedings each
year by the same claimant in CCB
proceedings, including whether the
limitation should be based on a
claimant’s filings or active claims, other
small claims tribunals’ experiences with
comparable limitations,
155
and how
such a limitation may best be designed
to prevent abusive conduct while
preserving access for good-faith
claimants.
H. Conduct of Parties and Attorneys
The statute has several provisions to
preemptively deter frivolous, vexatious,
or otherwise improper conduct,
including the claim filing fee,
156
the
ability for the Office to limit the number
of claims an entity can bring each
year,
157
the total monetary recovery
limitation,
158
and the provision that a
notice of a claim may be sent only after
being reviewed by the CCB for statutory
and regulatory compliance.
159
The
statute also requires the Office to
establish regulations requiring parties to
certify that statements made in CCB
proceedings are accurate and
truthful.
160
Further, the statute contains
provisions to address bad-faith conduct,
including by awarding costs and
attorneys’ fees and barring repeat
offenders from initiating claims before
the CCB for twelve months.
161
These
provisions demonstrate that Congress
went to great lengths to address
potential problems concerning bad-faith
claimants. The Office is committed to
thoughtful implementation of these
provisions to deter both bad-faith
conduct and misuse of CCB proceedings
by those who have a genuine
misunderstanding of the law.
162
The
Office seeks public input on any issues
that should be considered relating to
parties’ certification requirements and
bad-faith conduct, including how the
CCB can verify that filings do not
contain fraudulent information,
procedures for reporting bad-faith
conduct, and whether the Office should
prohibit attorneys who have been
suspended from the practice of law from
participating in CCB proceedings. For
example, the U.S. Patent and Trademark
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163
See, e.g., 35 U.S.C. 32 (authorizing the Patent
and Trademark Office Director to ‘‘suspend or
exclude . . . from further practice . . . any person,
agent or attorney shown to be in competent or
disreputable’’); 37 CFR 11.19(b) (grounds for
disciplining or disqualifying practitioners); see also
37 CFR 1.56, 1.97 and 1.98, 41.128, 42.11 and 42.12;
U.S. Patent and Trademark Office, Scam
Prevention, https://www.uspto.gov/patents/basics/
using-legal-services/scam-prevention (including
general information to the public and a link to a
publically available complaint form).
164
17 U.S.C. 1505(d). Before the CCB renders a
determination in any infringement dispute, the
work at issue must be registered by the Office and
the other parties in the proceeding must have an
opportunity to address the registration certificate.
But the statute allows a party to file a claim with
the CCB before the Office has issued a registration,
as long as ‘‘a completed application, a deposit, and
the required fee for registration’’ have been
delivered to the Office. Id. at 1505(a)(1).
165
Id. at 1504(t)(4).
166
Id. at 1504(c).
Office has adopted various rules with
respect to the operation of the Patent
Trial and Appeals Board and the
Trademark Trial and Appeals Board, as
well as for attorneys and entities
prosecuting applications before the
agency. Those rules address various
issues, such as conduct and discipline,
duties of candor, fraud prevention, and,
if necessary, sanction, suspension,
exclusion or censure.
163
Commenters
are encouraged to suggest other models
(including any adopted by state small
claims courts), as well as to offer
regulatory language tailored to the CCB
specifically.
I. Other Subjects
While this notification outlines a
variety of issues relevant to
implementation of the CCB, the Office
welcomes input on any issues not
specifically identified that commenters
believe are appropriate and within the
Office’s regulatory authority.
Commenters should be aware that apart
from this notification, the Office intends
to separately publish a proposed rule
regarding a process to expedite a
registration decision for an unregistered
work at issue before the CCB,
164
as well
as a conforming technical edit to the
Office’s FOIA regulations.
165
In some cases, the Office may defer
exercising its regulatory authority until
a later date. For example, the Office has
the authority to limit claims regarding
particular classes of works (e.g., musical
works, audiovisual works, architectural
works, etc.) that the CCB can hear.
166
While the Office welcomes any
suggestions regarding this authority
now, it may delay exercising it until a
later date, including potentially after the
CCB is operational.
Dated: March 23, 2021.
Regan A. Smith,
General Counsel and Associate Register of
Copyrights.
[FR Doc. 2021–06322 Filed 3–25–21; 8:45 am]
BILLING CODE 1410–30–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 38
RIN 2900–AR00
Veterans Legacy Grants Program
AGENCY
: Department of Veterans Affairs.
ACTION
: Proposed rule.
SUMMARY
: The Department of Veterans
Affairs (VA) proposes regulations to
establish the Veterans Legacy Grants
Program (VLGP). VA would establish
grant application procedures and
evaluative criteria for determining
whether to issue funding to eligible
entities to conduct cemetery research
and produce VLGP educational
materials. Educational materials would
relate the histories of Veterans interred
in national, State, or Tribal Veterans’
cemeteries and would promote
community engagement with those
histories.
DATES
: Comments must be received on
or before May 25, 2021.
ADDRESSES
: Comments may be
submitted through www.Regulations.gov
or mailed to: Director, Legislative and
Regulatory Service (42E), Department of
Veterans Affairs, 810 Vermont Avenue
NW, Washington, DC 20420. Comments
should indicate that they are submitted
in response to ‘‘RIN 2900–AR00—
Veterans Legacy Grants Program.’’
Comments received will be available at
regulations.gov for public viewing,
inspection, or copies.
FOR FURTHER INFORMATION CONTACT
:
Bryce Carpenter, Educational Outreach
Programs Officer, National Cemetery
Administration, Department of Veterans
Affairs, 810 Vermont Avenue NW,
Washington, DC 20420, (202) 461–5362.
(This is not a toll-free telephone
number.)
SUPPLEMENTARY INFORMATION
: In Public
Law 116–107, sec. 1 (Jan. 17, 2020)
(codified at 38 U.S.C. 2400 note),
Congress authorized VA to establish a
grant program to conduct cemetery
research and produce educational
materials for the VLGP. VA proposes to
add new 38 CFR 38.710 through 38.785
to implement this new grant authority.
The mission of the National Cemetery
Administration (NCA) is to honor
Veterans and their eligible family
members with final resting places and
lasting tributes, thus ensuring that ‘‘No
Veteran Ever Dies.’’ In 2016, the
Veterans Legacy Program (VLP) was
established to support NCA’s mission to
ensure ‘‘No Veteran Ever Dies’’ through
contract awards to educational entities
to conduct cemetery research and
produce educational tools for the public
to utilize and learn about the histories
of Veterans interred in VA national
cemeteries, as well as VA grant-funded
State and Tribal Veterans’ cemeteries.
By engaging educators, students,
researchers, and the public, VLP
enabled NCA to share the stories of
those who served and build an
understanding and appreciation of the
reasons national cemeteries are
considered national shrines. Through
contract awards from 2016 to 2020, VLP
funded research for 19 projects, which
produced more than 573 Veteran
biographies, 17 documentary films
about Veterans, and 6 Veterans’
cemetery walking tours. Additionally,
under VLP contracts issued to date, VLP
will have engaged almost 9,000
kindergarten through high school
students, more than 200 undergraduate
students, nearly 40 graduate students,
more than 50 scholars, and more than
300 teachers.
As the VLP program grew, VA sought
authority to award grants to entities
rather than request contract proposals
from educational institutions to carry
out this mission-critical function. Public
Law 116–107, sec. 1 (codified at 38
U.S.C. 2400 note), enacted in early 2020,
authorizes VA to make such grants.
Under that authority, this proposed rule
would establish regulations to govern
VA’s funding of VLP projects through
more effective and efficient grant
awards that would be administered by
the VLGP. The proposed regulations
address the purpose and use of grant
funds and set out the general process for
awarding a grant, as well as criteria for
evaluating grant applications, priorities
related to the award of a grant, and other
general requirements and guidance for
administering the VLGP.
Section 38.710 sets forth the purpose
of the VLGP, which is to fund projects
for research related to national, State, or
Tribal Veterans’ cemeteries, to present
such research through site hosting and
other digital technologies, and to
produce educational materials that
teach about the history of Veterans
interred in those cemeteries. Grants may
also fund projects that promote
community engagement with the
histories of Veterans interred in those
locations.
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