Copyright Claims Board: Initiation of Proceedings and Related Procedures

53897

Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 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); S. Rep. No. 116–105, at 7–8 (2019). Note, the

CASE Act legislative history cited is for H.R. 2426

and S. 1273, the CASE Act of 2019, a bill nearly

identical to the CASE Act of 2020. See H.R. 2426,

116th Cong. (2019); S. 1273, 116th Cong. (2019). In

developing the CASE Act, Congress drew on model

legislation in the Office’s 2013 policy report,

Copyright Small Claims, https://www.copyright.gov/

docs/smallclaims/usco-smallcopyrightclaims.pdf.

Congress also incorporated the Office’s report and

supporting materials into the statute’s legislative

history. H.R. Rep. No. 116–252, at 19; S. Rep. No.

116–105, at 2.

3

H.R. Rep. No. 116–252, at 17; S. Rep. No. 116–

105, at 2–3, 9.

4

17 U.S.C. 1504(c)(1)–(3). The CCB cannot issue

injunctive relief, but can require that an infringing

party cease or mitigate its infringing activity in the

event such party agrees and the agreement is

reflected in the proceeding’s record. 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).

5

See id. at 1504(a); H.R. Rep. No. 116–252, at 17,

21; S. Rep. No. 116–105, at 3, 11.

6

H.R. Rep. No. 116–252, at 21–22, 33; S. Rep. No.

116–105, at 14.

7

86 FR 16156 (Mar. 26, 2021). Comments

received in response to the March 26, 2021 NOI are

available at https://www.regulations.gov/document/

COLC-2021-0001-0001/comment. References to

these comments are by party name (abbreviated

where appropriate), followed by ‘‘Initial NOI

Comments’’ or ‘‘Reply NOI Comments,’’ as

appropriate.

8

Public Law 116–260, sec. 212(d), 134 Stat. at

2199.

9

17 U.S.C. 1506(a)(1).

Proposed Amendments to the

Regulations

Accordingly, 26 CFR part 300 is

proposed to be amended as follows:

PART 300—USER FEES

■Paragraph 1.The authority citation for

part 300 continues to read as follows:

Authority: 31 U.S.C. 9701.

§ 300.0 [Amended]

■Par. 2. Section 300.0 is amended by

removing paragraph (b)(9) and

redesignating paragraphs (b)(10) through

(12) as paragraphs (b)(9) through (11).

■Par. 3. Section 300.4 is amended by

revising paragraphs (b) and (d) to read

as follows:

§ 300.4 Enrolled agent special enrollment

examination fee.

* * * * *

(b) Fee. The fee for taking the enrolled

agent special enrollment examination is

$99 per part, which is the cost to the

government for overseeing the

development and administration of the

examination and is in addition to the

fees charged by the administrator of the

examination.

* * * * *

(d) Applicability date. This section

applies to registrations for the enrolled

agent special enrollment examination

that occur on or after [DATE 30 DAYS

AFTER PUBLICATION OF THE FINAL

RULE IN THE Federal Register].

§ 300.9 [Removed]

■Par. 4. Section 300.9 is removed.

§§ 300.10 through 300.12 [Redesignated as

§§ 300.09 through 300.11]

■Par. 5. Redesignate §§ 300.10 through

300.12 as §§ 300.09 through 300.11.

Douglas W. O’Donnell,

Deputy Commissioner for Services and

Enforcement.

[FR Doc. 2021–21242 Filed 9–27–21; 4:15 pm]

BILLING CODE 4830–01–P

LIBRARY OF CONGRESS

Copyright Office

37 CFR Parts 201, 220, 222, 223, and

224

[Docket No. 2021–6]

Copyright Claims Board: Initiation of

Proceedings and Related Procedures

AGENCY

: U.S. Copyright Office, Library

of Congress.

ACTION

: Notice of proposed rulemaking.

SUMMARY

: The U.S. Copyright Office is

issuing a notice of proposed rulemaking

to establish procedures governing the

initial stages of a proceeding before the

Copyright Claims Board. The proposed

rule provides requirements regarding

the filing of a claim, the Board’s

compliance review of the claim, service,

issuance of notice of the claim, the

respondent’s opt-out election,

responses, and counterclaims. The

Office intends to initiate subsequent

rulemakings regarding additional

procedures.

DATES

: Initial written comments must be

received no later than 11:59 p.m.

Eastern Time on October 29, 2021.

Written reply comments must be

received no later than 11:59 p.m.

Eastern Time on November 15, 2021.

ADDRESSES

: For reasons of government

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 website at http://

copyright.gov/rulemaking/case-act-

implementation/initiating-proceedings/.

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

:

Kevin R. Amer, Acting General Counsel

and Associate Register of Copyrights, by

email at kamer@copyright.gov, or

Whitney Levandusky, Supervisory

Attorney-Advisor, by email at wlev@

copyright.gov. Both can be reached by

telephone at 202–707–8350.

SUPPLEMENTARY INFORMATION

:

I. Background

On December 27, 2020, the President

signed into law the Copyright

Alternative in Small-Claims

Enforcement (‘‘CASE’’) Act of 2020.

1

The CASE Act directs the Copyright

Office to establish the Copyright Claims

Board (‘‘CCB’’ or ‘‘Board’’), a voluntary,

alternative forum to federal court for

parties to seek resolution of copyright

disputes that have a low economic value

(‘‘small copyright claims’’).

2

The CCB’s

creation does not displace or limit a

party’s ability to bring small copyright

claims in federal court, but rather

provides a more accessible alternative

forum to decide those claims.

3

The CCB

has authority to hear copyright

infringement claims, claims seeking a

declaration of noninfringement, and

misrepresentation claims under section

512(f) of title 17.

4

Participation in the

CCB is voluntary for all parties,

5

and all

determinations are non-precedential.

6

On March 26, 2021, the Copyright Office

published a notification of inquiry

(‘‘NOI’’) inviting public comment on

various aspects of the CCB’s operations,

which the Office noted would be

established through a series of

rulemakings.

7

Congress directed that the

CCB begin operations by December 27,

2021, though the Register may for good

cause extend that deadline by not more

than 180 days.

8

The CASE Act directs the Register of

Copyrights to establish the regulations

by which the CCB will conduct its

proceedings, subject to the provisions of

chapter 15 and relevant principles of

law under title 17.

9

In this notice, the

Office proposes procedures related to

the filing of a claim, the CCB’s

subsequent review of the claim to

ensure that it complies with statutory

requirements and the Office’s

regulations (referred to in this

rulemaking as the CCB’s ‘‘compliance

review’’), service, issuance of notice of

the claim, the respondent’s opt-out

election, responses, and counterclaims.

The Office will issue proposed rules

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10

Id. at 1506(e).

11

H.R. Rep. No. 116–252, at 17; see also S. Rep.

No. 116–105, at 9–10.

12

Sen. Dick Durbin, Sen. John Kennedy & Rep.

Hakeem Jeffries Initial NOI Comments at 1 (stating

that CCB forms should be ‘‘user-friendly, with

simplified forms and guidance provided in such a

way that parties will not feel compelled to hire an

attorney to understand and assist them with the

process’’) (emphasis omitted); Am. Bar Ass’n Intell.

Prop. L. Sec. (‘‘ABA–IPL’’) Reply NOI Comments at

2; Patreon Initial NOI Comments at 2.

13

Am. Intell. Prop. L. Ass’n (‘‘AIPLA’’) Initial

NOI Comments at 2; Copyright Alliance, Am.

Photographic Artists, Am. Soc’y for Collective

Rights Licensing, Am. Soc’y of Media

Photographers, The Authors Guild, CreativeFuture,

Digital Media Licensing Ass’n, Graphic Artists

Guild, Indep. Book Pubs. Ass’n, Music Creators N.

Am., Nat’l Music Council of the United States, Nat’l

Press Photographers Ass’n, N. Am. Nature

Photography Ass’n, Prof. Photographers of Am.,

Recording Academy, Screen Actors Guild-Am. Fed.

of Television and Radio Artists, Soc’y of Composers

& Lyricists, Songwriters Guild of Am. & Songwriters

of N. Am. (‘‘Copyright Alliance, et al.’’) Initial NOI

Comments at 10; Engine Initial NOI Comments at

3; Niskanen Center Initial NOI Comments at 2.

14

Copyright Alliance, et al. Initial NOI Comments

at 11; Coalition of Visual Artists Initial NOI

Comments at 5–8; ABA–IPL Reply NOI Comments

at 2.

15

The Office has modeled the procedures

governing issuance of the initial notice on those

pertaining to issuance of a summons under Rule 4

of the Federal Rules of Civil Procedure. See H.R.

Rep. No. 116–252 at 22.

16

Id.

17

Google Initial NOI Comments at 1 (referring to

Federal Rule of Civil Procedure 12).

18

H.R. Rep. No. 116–252, at 23.

19

17 U.S.C. 1506(y).

20

See, e.g., Ben Vient Initial NOI Comments at 2;

Copyright Alliance, et al. Initial NOI Comments at

13; Univ. of Mich. Library Initial NOI Comments at

1.

21

17 U.S.C. 1506(f)(1).

22

H.R. Rep. No. 116–252, at 22.

23

17 U.S.C. 1506(f)(1)(A).

24

Id. at 1506(f)(1)(B).

related to later stages of a proceeding in

subsequent rulemakings.

A. Initiating a Claim

To initiate a proceeding before the

CCB, a claimant shall, ‘‘subject to such

additional requirements as may be

prescribed in regulations established by

the Register of Copyrights,’’ file a claim

that ‘‘(1) includes a statement of

material facts in support of the claim;

(2) is certified under [17 U.S.C.

1506(y)(1)]; and (3) is accompanied by

a filing fee in such amount as may be

prescribed in regulations established by

the Register of Copyrights.’’

10

The

legislative history states that the Office

should establish a process that is

‘‘accessible especially for pro se parties

and those with little prior formal

exposure to copyright laws.’’

11

Parties provided comments on several

matters relating to the contents of a

claim. Commenters emphasized the

need for plain language,

12

suggested that

the forms should be available, at a

minimum, in English and Spanish,

13

and encouraged the use of fillable

forms.

14

The Office agrees with these

suggestions, and intends to use plain-

language fillable forms throughout

various stages of CCB proceedings,

including for the filing of a claim.

The Office proposes that to initiate a

proceeding, a claimant must: First,

complete a claim form provided by the

CCB; second, complete an initial notice

form, also provided by the CCB; and,

finally, submit the completed forms and

required filing fee through the Board’s

electronic filing and document

management system. A claimant who is

unable to use the electronic filing and

document management system may

initiate a proceeding by using printed

forms and alternative submission

instructions. In addition to the statutory

requirements to submit the claim and

filing fee to the CCB, the Office is

proposing that the claimant be required

to submit a completed initial notice

form with the claim form. This proposal

allows a Copyright Claims Attorney to

review the initial notice and address

any issues during compliance review,

and issue the signed notice under

Copyright Office seal upon approving

the claim.

15

The proposed rule sets forth the

required information for the claim form.

It generally requires the claimant to

identify the parties, the claim asserted

under section 1504(c), and the harms

experienced as a result of the dispute

subject to the proceeding. Then, the

claimant must identify certain facts

relevant to the claim and provide a

statement describing the dispute in

more detail. The claimant will be asked

to be as detailed as possible, but, as

contemplated by Congress, the CCB will

‘‘construe liberally’’ any information in

the claim to satisfy regulatory

requirements during claim review.

16

The Office received one substantive

comment arguing that the claim should

require more than is required by notice

pleading as set forth in the Federal

Rules of Civil Procedure.

17

Such a

heightened pleading standard, however,

would go against congressional intent.

The legislative history explains that

‘‘many of the terms and processes used

in the [CASE] Act are drawn from

preexisting, related state and federal

statutory language, the Federal Rules of

Civil Procedure, and established case

law,’’ and emphasizes that the CCB is

intended to be ‘‘an efficient, effective,

and voluntary alternative’’ to

litigation.

18

As a general rule, therefore,

practice before the CCB should be less

complex than practice in the federal

courts, and certainly not more complex.

Further, to the extent there are

statements in the claim that clearly do

not state facts upon which relief can be

granted, the CCB anticipates that the

compliance review process typically

will resolve such issues. Finally, the

claimant must certify that the

information provided in the claim form

is ‘‘accura[te] and truthful[ ]’’

19

to the

best of the certifying party’s knowledge.

The proposed rule also allows

optional documentation to be attached

to the claim form, including copies of

the works involved. While some

commenters suggested that additional

documentation should be a requirement

for filing a claim and serving notice,

20

the Office believes that requiring such

information at the initial claim stage

would discourage claimants from

initiating a proceeding and would be

more burdensome than the requirements

for litigation in the federal courts.

Documentary evidence will be a focus of

the standard requests for production

that the Office will propose in a future

rulemaking addressing discovery.

The proposed rule does not address

matters relating to the layout or

presentation of questions on the form, as

the Office seeks to preserve the

flexibility to adjust those items as

circumstances warrant. The Office

intends to make proposed forms

available in advance of the CCB’s

commencement of operations.

B. Review of the Claim by Officers and

Attorneys

1. Compliance Review

After the claimant files a claim, the

claim ‘‘shall be reviewed by a Copyright

Claims Attorney to ensure that the claim

complies with [chapter 15] and

applicable regulations.’’

21

If the

claimant is proceeding ‘‘pro se,’’ i.e.,

they are not represented by an attorney,

the claim and assertions are to be

‘‘construed liberally in favor of

adjudicating applicable claims and

defenses.’’

22

If the claim is found to comply with

the statute and regulations, the CCB

shall notify the claimant and provide

instructions to proceed with service of

the claim.

23

If the claim is found not to

comply, the CCB is required to provide

the claimant with a notice of deficiency

and an opportunity to file an amended

claim within 30 days after receiving the

notice.

24

The amended claim is then

reviewed, and the claimant is either

notified of the sufficiency of the claim

or directed to file an additional

amended complaint in that 30-day

period. This second amended complaint

is reviewed a final time, with the CCB

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25

Id. at 1506(f)(2).

26

Fed. R. Civ. P. 12(b)(6).

27

U.S. Copyright Office, Compendium of U.S.

Copyright Office Practices, Third Edition sec.

602.4(C) (3d ed. 2021).

28

Elec. Frontier Found. (‘‘EFF’’) Initial NOI

Comments at 2.

29

17 U.S.C. 1506(f)(3).

30

Id.

31

See, e.g., EFF Initial NOI Comments at 3.

32

17 U.S.C. 1506(g).

33

Id.

34

Id. at 1506(g)(1).

35

H.R. Rep. No. 116–252, at 22; see also 17 U.S.C.

1506(g)(1).

36

17 U.S.C. 1506(g)(1).

37

86 FR at 16159.

38

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); Clerk

for the Circuit Court of Cook County, Summons

(Dec. 2020), http://www.cookcountyclerkofcourt.

org/Forms/pdf_files/CCG0001.pdf (form CCG 0001

A) (as of Sept. 14, 2021, Cook County Clerk of Court

website was inaccessible); New Jersey Courts, Small

Claims Summons and Return of Service (Sept.

2018), https://njcourts.gov/forms/10534_appendix_

xi_a2.pdf.

39

86 FR at 16159.

40

Id.

41

Copyright Alliance, et al. Initial NOI Comments

at 11. However, the same comment observed that

the notice ‘‘should provide only the essential

information about the process because providing

too much information could overwhelm the

Respondent.’’ Id. at 12. Another commenter

suggested that the notice include the ‘‘legal name

of the Plaintiff, a physical address, and a telephone

number by which a live person can be called by the

Continued

either clearing the claim for service or,

upon confirmation of noncompliance by

a Copyright Claims Officer, dismissing

the claim without prejudice. The CCB

shall also dismiss without prejudice any

proceeding in which the claimant fails

to file an amended complaint within the

30-day window. Counterclaims are

subject to the same compliance

review.

25

The statute describes the compliance

review process in some detail. Here, the

Office proposes a limited number of

regulations to clarify the scope of

review. The proposed rule provides that

a Copyright Claims Attorney shall

review a claim to determine whether the

allegations ‘‘clearly do not state a claim

upon which relief can be granted.’’ This

standard echoes the standard set forth in

the Federal Rules of Civil Procedure,

26

but is meant to be less exacting than that

governing a motion to dismiss. The

Office believes that this approach is in

the best interest of all parties: The

claimant has the opportunity to state its

case; the respondent has a better

understanding of the allegations

involved in the claim and will be in a

stronger position to consider

participation; and the CCB will avoid

the administrative burden associated

with hearing overbroad or clearly

implausible claims. The Office is also

proposing to incorporate an

examination standard from the

Compendium of U.S. Copyright Office

Practices, which stipulates that while

the Office does not conduct factual

investigations, it may take

administrative notice of facts generally

known as established and may use that

knowledge during compliance review.

27

Finally, as suggested by one

commenter,

28

the proposed rule clarifies

that the CCB’s clearance of a claim for

notice is not an endorsement of the facts

and statements asserted in the claim.

2. Dismissal for Unsuitability

Under the statute, the CCB must

dismiss a claim or counterclaim without

prejudice if it ‘‘concludes that the claim

or counterclaim is unsuitable for

determination . . . including on

account of any of the following . . .

[t]he failure to join a necessary party;

. . . [t]he lack of an essential witness,

evidence, or expert testimony; [or] [t]he

determination of a relevant issue of law

or fact that could exceed either the

number of proceedings the [CCB] could

reasonably administer or the subject

matter competence of the [CCB].’’

29

The

issue of unsuitability may be taken up

by the Board at any time during the

proceedings, whether during

compliance review or thereafter.

30

The Office did receive suggestions as

to particular claims that should be

considered unsuitable.

31

At this time,

however, the proposed regulation

addresses only the procedural matter of

how the issue of unsuitability will be

addressed. The Office proposes that the

issue of unsuitability may be raised by

the Board or by any party to the

proceeding. Upon consideration of the

matter, the Board may issue an order

dismissing the claim without prejudice,

after which the claimant has an

opportunity to request reconsideration

and the respondent has an opportunity

to respond. In proposing this approach,

the Office seeks to strike an appropriate

balance between maximizing parties’

opportunity to be heard and preserving

the Board’s authority to dismiss claims

that it determines to be unsuitable for

determination.

C. Service of Initial Notice

Once the claimant receives

notification that the claim is compliant,

the claimant must, not later than ninety

days from receiving notification, file

with the CCB proof of service on the

respondent in order to proceed with the

claim.

32

To effectuate service, the

claimant ‘‘shall cause notice of the

proceeding and a copy of the claim to

be served on the respondent’’

33

as

prescribed by the statute and

regulations.

1. Content of Initial Notice

To ensure that respondents are

provided with proper notice of the

claims asserted against them, the statute

details elements that must be included

in the initial notice accompanying the

claim. In addition, the Office is required

to create a prescribed initial notice form

and is vested with regulatory authority

to specify further requirements to be

included in the notice.

At a minimum, the initial notice must

describe the CCB and the nature of a

CCB proceeding, so that pro se parties

understand the process.

34

The initial

notice must include ‘‘a clear and

prominent explanation of the

respondent’s right to opt out of the

proceeding and the rights the

respondent waives if [they] do [ ] not.’’

35

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.’’

36

In the NOI, the Office requested

comment on ‘‘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.’’

37

The Office provided examples of

various approaches by federal and state

courts,

38

and invited parties to provide

specific language to be included on the

form or sample forms.

39

The Office

asked whether the notice should

include a docket number and links to

the CCB’s website for relevant public

information, and encouraged parties to

suggest additional educational

information ‘‘while being mindful that

the notice must remain easy to

understand and avoid overwhelming

respondents.’’

40

In response, commenters suggested a

number of additional features to be

included. Some proposed that the notice

include not only information such as

the respondent’s name, phone number,

address, email address, and other

contact information, but also

information about the claim itself and

background information about the

CCB.

41

Others suggested that the notice

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Respondent during normal business hours to

discuss the claim.’’ Ryan Fountain Initial NOI

Comments at 1.

42

Anthony Davis Jr. & Katherine Luce Initial NOI

Comments at 2.

43

Patreon Initial NOI Comments at 3.

44

Copyright Alliance Initial NOI Comments at 11.

45

See, e.g., AIPLA Initial NOI Comments at 2;

Copyright Alliance, et al. Initial NOI Comments at

18.

46

See, e.g., Public Knowledge, Re:Create, Ctr. for

Democracy & Tech., R St. Inst., Org. for

Transformative Works (‘‘Public Knowledge, et al.’’)

Initial NOI Comments at 14 (‘‘The notice language

needs to describe the opt-out process clearly,

concisely, and in a manner that is comprehensible

to a lay audience.’’); Google Initial NOI Comments

at 1 (‘‘To the extent that the Office intends to give

respondents information on the possible

consequences of opting out, it will be important to

communicate the associated uncertainty in a clear

and disinterested way.’’); Authors Alliance Initial

NOI Comments at 3 (asserting among other things

that ‘‘the notice should also describe situations for

which the tribunal may not be a suitable venue for

dispute resolution’’).

47

Ben Vient Initial NOI Comments at 2.

48

Computer & Comms’s Indus. Assoc. & internet

Assoc. (‘‘CCIA & IA’’) Initial NOI Comments at 3.

49

17 U.S.C. 1506(g)(3).

50

Id. at 1506(g)(9).

51

Id. at 1506(g)(4)–(5).

52

Id. at 1504(d)(3).

53

For a minor or an incompetent individual,

service can be effectuated only 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.’’ Id. at 1506(g)(8); see also id. at

1506(g)(4).

54

See Fed. R. Civ. P. 4(e).

55

17 U.S.C. 1506(g)(4)(A).

56

Id. at 1506(g)(4)(C).

57

Id. at 1506(g)(4)(D).

58

Id. at 1506(g)(5)(A)(i).

include explanations of copyright law,

42

fair use,

43

and other defenses.

44

Multiple commenters argued that the

notice should not include elements of

infringement or defenses, but should

simply state that there are defenses

available and include a link to the

Copyright Office web page with

information about fair use and other

defenses that would be typically

raised.

45

Many agreed that the notice

should address the pros and cons of

opting out, with several noting that the

Board should do so clearly, concisely,

and in a disinterested way.

46

The Office appreciates parties’

comments on this issue and proposes

that the initial notice to the respondent

be provided in a form that includes the

information required by the statute as

well as additional basic information

about the claim and the parties. The

Office envisions a notice that, as is the

case with summonses issued by federal

courts, is clear and concise and is easy

to understand. The Office also envisions

that the notice will bear the Office’s

seal, the CCB’s logo, and other indicia

to identify it as an official document

issued by the federal government.

The Office received a number of

suggestions related to substantive claim

information that should be attached to

the notice, including evidence of

infringement

47

and a picture of the

allegedly infringing work.

48

The Office

believes that for efficiency and clarity,

substantive information should be

included in or attached to the claim,

which sets forth the facts at issue, rather

than the notice, which sets forth the

procedural implications of the claim.

The initial notice is similar to a

summons, and with a few exceptions

(such as the caption, docket number,

and names and addresses of the parties),

every notice issued by the Board will be

identical. And, for the reasons stated

above, the Office has included

documentary evidence as an optional

attachment to the claim rather than a

requirement.

The proposed rule prescribes that

claimants use an initial notice form

provided by the Board, with most of the

content prepared by the Board for use in

all initial notices. Claimants will fill in

certain information, such as the names,

addresses, and contact information for

the claimant and the respondent. The

rule does not require that the claimant

provide a telephone number or email

address in the initial notice. Although

the Office recognizes the benefits of

providing means through which the

parties may communicate to discuss the

merits of a claim and to discuss

settlement, the Office also recognizes

that such information might implicate

privacy or other interests. The Office

invites comments on this proposed

approach.

In addition to basic information about

the parties, the notice form would

require the claimant to identify the

nature of the claims being asserted—i.e.,

whether the claim is for copyright

infringement, a declaration of

noninfringement, or misrepresentation

in connection with a notification or a

counter notification served on an online

service provider under section 512 of

title 17.

The notice would also include the

information required by 17 U.S.C. 1506,

including a brief description of the CCB

and its proceedings, a statement

advising the respondent of the right to

opt out of the proceeding, how to opt

out, and the consequences of doing so

(including the statements required by 17

U.S.C. 1506(g)(1)(A) and (B)). It is the

Office’s intention that the latter

statement be concise, clear, and

objective.

The notice will also direct the

respondent (as well as the claimant) to

further information that will be made

available on the Office or CCB websites

pertaining to copyright law, including

exclusive rights, infringement, and

exceptions and limitations, as well as

further information on CCB

proceedings. Information will be

provided on how to access the Board’s

electronic filing and document

management system, which will also

give respondents a means to confirm

that the notice relates to a genuine legal

proceeding.

2. Service of Process and Designated

Agents

Under the statute, any individual who

is not a party to the proceeding and is

older than 18 years of age may effectuate

service,

49

and both service and waiver

of service may only occur within the

United States.

50

Choosing how to

effectuate service, however, depends on

the nature of the respondent. The statute

includes separate rules of service for

individuals and corporations,

partnerships, and unincorporated

associations, including those

organizations using designated service

agents.

51

No claims can be brought ‘‘by

or against a Federal or State

governmental entity.’’

52

Service on an individual

53

may be

effectuated by using procedures

analogous to those in the Federal Rules

of Civil Procedure.

54

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.’’

55

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.’’

56

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.’’

57

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.’’

58

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

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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.

60

Id. at 1506(g)(5)(B).

61

Id.

62

86 FR at 16160.

63

17 U.S.C. 1506(j).

64

Amazon Initial NOI Comments at 3; CCIA & IA

Initial NOI Comments at 3; Google Initial NOI

Comments at 1.

65

Amazon Initial NOI Comments at 3; Google

Initial NOI Comments at 1–2.

66

Motion Picture Ass’n, Recording Indus. Ass’n

of Am. & Software and Info. Ass’n of Am. (‘‘MPA,

RIAA & SIIA’’) Initial NOI Comments at 5; Verizon

Initial NOI Comments at 4.

67

Copyright Alliance, et al. Initial NOI Comments

at 15–16.

68

81 FR 75695, 75698 (Nov. 1, 2016).

69

17 U.S.C. 512(c)(2) (‘‘The limitations on

liability established in this subsection apply . . .

only if the service provider has designated an agent

to receive notification of claimed infringement . . .

and by providing [the following information] to the

Copyright Office . . . .’’).

70

Id. at 1506(g)(5)(B) (‘‘A corporation,

partnership, or unincorporated association . . .

may elect to designate a service agent to receive

notice of a claim against it.’’).

71

Id. at 1506(g)(6).

72

Id. at 1506(g)(6)(A)–(B).

73

Id. at 1506(g)(7)(A).

74

Engine Initial NOI Comments at 4.

where service is made.’’

59

Under the

statute, such corporations, partnerships,

or unincorporated associations may

elect to receive CCB claim notices via a

designated service agent. 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.’’

60

The

Office may charge these organizations a

fee to maintain the designated service

agent directory.

61

In the NOI, the Office requested

comments specifically related to the

designated service agent directory. The

Office encouraged commenting parties

to review the Office’s designated agent

directory for online service providers,

created pursuant to the Digital

Millennium Copyright Act (‘‘DMCA’’),

and to discuss to what extent the Office

should use the DMCA database as a

model.

62

The Office also invited

comments on how the system should

indicate corporate parent-subsidiary

relationships, and on fees. In addition,

the Office noted its general authority to

establish additional regulations

governing service throughout a CCB

proceeding,

63

and requested comment

on any issues that should be considered

related to that authority.

The Office received a number of

comments regarding the ability of a

corporate parent to act as a designated

agent on behalf of a subsidiary. The

majority of commenters who addressed

the issue encouraged the designation of

one agent for the corporate parent and

all subsidiary firms.

64

Commenters also

recommended that service agents be

able to choose their method of service,

65

and some argued that after an eligible

entity has designated a service agent,

the only effective means of service that

should be allowed is through the

identified service agent in the

database.

66

The Office appreciates these

comments and finds them to be

generally consistent with the statutory

text. The proposed rule allows a

submitter to provide the same

designated agent information for

multiple companies, partnerships, or

unincorporated associations, but a

separate submission would be required

for each entity. A designated agent

submission is required to include

identifying information for the business,

including contact information, principal

place of business, and for corporations,

the state of incorporation, any

associated state file or registration

number, and all other states in which

the corporation is registered to do

business. Organizations may also list up

to five alternate names under which

they are doing business, i.e., trade

names. The names provided will be

used for indexing the designation, and

the business contact information will

not be on public view.

The submission must also include

contact information for the service agent

and the designating entity’s consent to

service by mail. An entity submitting a

designation may also elect to accept

service by email in addition to mail. In

such cases, the email address of the

designated service agent will be

included in the public directory.

Although some parties suggested that

the Office should require periodic

renewal of the designated agent

listing,

67

the Office has not included

such a requirement in the proposed

rule. It is true that, in the context of the

designated agent databases for online

service providers under the DMCA, the

Office implemented a renewal

requirement to ‘‘encourage effective

compliance with the requirements of [17

U.S.C.] 512(c)(2).’’

68

That provision

reflects the statutory requirement that a

service provider must designate an

agent with the Copyright Office to be

eligible for statutory safe harbor

provisions.

69

Here, designating a service

agent is not a statutory requirement for

service on a corporation, partnership, or

unincorporated association, but an

administrative convenience.

70

In

addition, the claimant may effectuate

service by alternative means. While the

Office accepts the possibility that

corporations, partnerships, or

unincorporated associations may not

keep current their designations, service

on the agent who is designated in the

directory shall be valid unless the

designating entity cancels or amends the

designation. The Office believes that

this should offer sufficient incentive to

parties to keep their designations

current.

Finally, the proposed rule provides

that if the CCB determines that a

designation does not qualify, or if it has

reason to believe the submitter does not

have authority to make the designation,

CCB staff will notify the submitter that

the designation will be removed. The

submitter will then have ten days to

respond. If the submitter does not

respond, or the CCB determines that the

response is insufficient, the entry will

be removed from the directory.

The proposed rule also provides

requirements for service of materials

filed after the initial notice and claim.

The proposed rule has a general

requirement for service through the

CCB’s electronic filing management

system or by other means of electronic

service, and establishes such service

methods as the default. Unrepresented

parties, however, may be excused from

electronic service and instead receive

service by mail or in-person delivery.

The same structure is proposed for filing

documents beyond the initial notice and

claim: parties who are excused from

using the electronic filing and document

management system may file documents

by email, mail, hand delivery, or courier

delivery.

D. Waiver of Service

As an alternative to serving notice of

the claim on a respondent, the statute

allows the claimant to request waiver of

service. The claimant must send the

request for waiver of service to the

respondent ‘‘by first class mail or by

other reasonable means,’’ and return of

the acceptance of waiver must be at no

cost to the respondent.

71

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.

72

The personal service waiver, if accepted

by respondent, does not constitute a

waiver of the respondent’s right to opt

out of the proceeding.

73

The Office received one comment

specifically addressing waiver,

expressing concern regarding the use of

‘‘intimidating or misleading

language.’’

74

The Office intends to

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17 U.S.C. 1506(h).

76

Id. at 1506(h)(1).

77

86 FR at 16159.

78

17 U.S.C. 1506(h).

79

Authors Alliance Initial NOI Comments at 4;

Niskanen Ctr. Initial NOI Comments at 4.

80

AIPLA Initial NOI Comments at 3. Copyright

Alliance, et al. Initial NOI Comments at 14.

81

17 U.S.C. 1506(aa)(1), 1507(b)(2)(A).

82

Id. at 1506(i).

83

Id.

84

86 FR at 16161.

85

See, e.g., Copyright Alliance, et al. Initial NOI

Comments at 17–18; EFF Initial NOI Comments at

2–3; Engine Initial NOI Comments at 5–6; Internet

Archive Initial NOI Comments at 1–2; MPA, RIAA

& SIIA Initial NOI Comments at 8; Public

Knowledge, et al. Initial NOI Comments at 14.

86

Engine Initial NOI Comments at 5; Niskanen

Ctr. Initial NOI Comments at 4.

87

Public Knowledge, et al. Initial NOI Comments

at 13–14.

88

Copyright Alliance, et al. Initial NOI Comments

at 12.

require a standard form provided by the

CCB for requesting waiver of service.

The form will provide the basic

information regarding the proceeding,

clarify that the form is not a formal

service of summons and does not waive

the respondent’s right to opt out of the

proceeding, and describe the effect of

agreeing or declining to waive service.

The claimant can request waiver by

mailing the request, claim, initial notice,

and envelope with postage prepaid to

the respondent. The respondent will

have thirty days from the date the

request is sent to waive service, and

may return the signed waiver form by

mail or by email, if the claimant

includes an email address in the

request. If the respondent accepts

waiver of service, and further does not

opt out, respondent will have an

additional thirty days to file a response

beyond the time for response typically

set by the CCB. If the respondent does

not waive service, the claimant must

complete service with sufficient time to

file the proof of service with the CCB.

E. Second Notice

In addition to the notice served by the

claimant on the respondent, the CCB is

required to issue a second notice to the

respondent if the respondent has not

already opted out or filed a response.

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.’’

75

Similar to the claimant’s

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.’’

76

This second

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.

In the NOI, the Office sought

comment on the second notice,

including ‘‘its content and how to

ensure that recipients understand that it

is an official Federal Government

notification.’’

77

The Office also

requested input on the method of

service—specifically, whether the

second notice should be sent ‘‘by or on

behalf of’’ the CCB, whether the second

notice should be posted to the online

filing system or delivered by mail or

email, and how delivery should be

documented.

78

Commenters suggested that the

second notice should be substantially

the same as the first, with a prominent

warning that this is the second and final

notice with an explanation of the impact

of not opting out.

79

Parties also

recommended that the CCB issue the

second notice via U.S. mail.

80

The

Office agrees with these comments and

proposes that the second notice closely

mirror the initial notice, specifically

with regard to the description of the

CCB, the consequences of opting out,

the process of opting out, and accessing

legal assistance. The Office proposes to

issue the second notice by mail, but also

to deliver a second copy via email to the

designated service agent of a respondent

that is a corporation, partnership, or

unincorporated association that has

indicated in the designated service

agent directory that it will accept email

service.

The Office has also proposed that the

second notice be issued no later than

twenty days after the claimant files

proof of service or waiver of service.

The CCB will not issue a second notice

if the respondent has opted out. The

Office anticipates that the respondent

will have at least thirty days between

the receipt of the second notice and the

end of the opt-out period, given that the

claimant has seven days to file proof

after effectuating service or obtaining

waiver, and the Office will issue the

second notice no more than twenty days

after that. Delays in the claimant’s filing

of proof of service or waiver may

constitute good cause for extending the

opt-out or response period.

F. Opt-Out Procedures

Once the respondent receives notice

of the claim, the respondent has sixty

days to opt out of the proceeding before

the CCB, although the CCB can extend

that period in the interests of justice,

such as for a delay in the receipt of a

second notice due to a claimant’s failure

to file proof of service in a timely

manner.

81

If a respondent does not

timely opt out, the proceeding will

become active and the respondent will

be bound by the CCB’s determination.

82

If the respondent does opt out, the

proceeding will be dismissed without

prejudice.

83

The Office solicited general input

regarding opt-out, in particular, the form

and process of a written opt-out

notice.

84

Commenters were consistent

that the opt-out process should be quick

and easy to exercise, and that

respondents should be provided both

online and mail options for opting out.

85

Parties proposed different approaches

for the online opt-out process.

Suggestions included the creation of a

QR code,

86

a button on the CCB home

page,

87

and providing a verification key

code for security.

88

The Office

appreciates parties’ comments on this

issue and proposes an opt-out

notification form that asks for the docket

number of the claim, identifying

information regarding the respondent,

and a signed affirmation that the person

affirming is the respondent identified in

the claim (or a representative of that

respondent) and that the respondent

will not be participating in the CCB

proceeding. This notification can be

submitted either online using a form on

the CCB’s website or through the mail,

or via hand delivery or commercial

courier. The Office has included the

suggestion that an online opt-out be

accompanied by a verification code

provided in the initial notice and

second notices, and will continue to

consider the remaining suggestions

regarding online opt-out as it develops

its form, website, and online filing

system. The CCB will include in the

initial and second notice instructions

for completing opt-out election online,

as well as by using a paper opt-out form.

The proposed rule clarifies various

issues related to the scope and effect of

opting out. In particular, the rule

requires that each respondent to a

proceeding independently opt out, and

that an opt-out will be effective against

duplicate claims but not unrelated

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86 FR at 16161.

90

For example, a claimant could file a federal

lawsuit after the respondent opts out of a CCB

claim. The statute contemplates that the parties

could agree to a CCB proceeding in lieu of further

litigation. See 17 U.S.C. 1504(d)(2).

91

86 FR at 16161.

92

17 U.S.C. 1504(c)(5).

93

Id. at 1506(g)(7)(B).

94

Id. at 1506(i). A proceeding is deemed active

when ‘‘proof of service has been filed by the

claimant and the respondent does not submit an

opt-out notice to the [CCB] within [the] 60-day

period.’’ Id.

95

Id. at 1506(k).

96

Fed. R. Civ. P. 12(h).

97

H.R. Rep. No. 116–252, at 22.

98

17 U.S.C. 1504(c)(4)(B)(i).

99

Id. at 1504(c)(4)(B)(ii).

100

Id. at 1506(f)(2).

101

Id. at 1506(f)(3).

102

Fed. R. Civ. P. 13(a).

claims. The Office recognized that

‘‘Congress did not establish a blanket

opt-out for any entities other than

libraries and archives,’’

89

and yet the

Office also recognizes that the result of

an opt-out is a dismissal without

prejudice, leaving a claimant open to

file substantially the same claim again.

The proposed rule is crafted in light of

the Office’s inability to impose a blanket

opt-out, but still seeks to avoid

subjecting a respondent to refiled

claims.

Not included in this proposed rule is

a specific mechanism for a respondent

to revoke an opt-out for a particular

claim. The Office recognizes that there

may be situations where respondents

may wish to change their minds and opt

in to a proceeding that was previously

filed with the CCB and dismissed due

to a prior opt-out election.

90

The Office

welcomes comment on whether the

regulatory text should include a

provision permitting a respondent to

give the CCB notice of an intention to

participate after an initial opt-out, and,

if so, any suggestions for regulatory

language to govern this process.

The Office also solicited comments

regarding whether it should create a

publicly accessible list of entities or

individuals who have opted out of

particular proceedings.

91

At present,

given the limited time before the

anticipated commencement of CCB

operations and the need to focus on

establishing the core proceedings of the

CCB, the proposed rule does not provide

for a public list of prior opt outs. The

Office may, however, revisit this issue

in the future.

G. Response

A respondent who decides not to opt

out of the proceeding must file a

response to the claim with the CCB. The

response may include ‘‘legal or

equitable defense[s] under this title or

otherwise available under law’’

92

in

response to the claim. A respondent

who timely waives service has an

additional thirty days to file a response

in addition to any deadlines set forth by

the CCB.

93

The statute is otherwise

silent as to the timing of a response

filing, and a proceeding is considered

active prior to the filing of any

response.

94

Given that a scheduling

order must be sent out ‘‘upon

confirmation that a proceeding has

become an active proceeding’’

95

—i.e.,

upon the filing of proof of service and

the passing of the opt-out window—the

Office understands this requirement to

mean that any response timeline is to be

set forth after the proceeding becomes

active and should be included in the

scheduling order. Accordingly, the

scheduling order issued by the CCB

‘‘upon confirmation that a proceeding

has become an active proceeding’’ will

include a thirty-day deadline from the

date of the scheduling order for filing

the response. If the respondent has

waived service, thereby availing itself of

an extra thirty days to respond to the

claim, the order will require that the

response be filed within sixty days of

the date of the scheduling order.

The Office proposes that to respond to

a claim, the respondent must complete

the appropriate form provided by the

CCB and submit the completed form

through the Board’s electronic filing and

document management system. If a

respondent is unable to use the

electronic filing and document

management system, it may submit a

response by following alternative

submission instructions provided in the

form or by the CCB. In addition to

identifying information and

certification, the form will ask for short

statements from the respondent

disputing the facts of the claim and

describing the dispute or the reasons

claimant’s claim has no merit from its

point of view. As discussed below, the

respondent will be able to raise

counterclaims. For infringement claims,

the form will allow the respondent to

identify relevant defenses. In contrast to

the Federal Rules of Civil Procedure,

96

however, the proposed regulation does

not provide that a defense that is not

asserted in a response is waived by the

respondent. At this early stage of the

proceeding, such a rigid application of

pleading requirements would impose an

unjustifiable burden on respondents,

especially those who are representing

themselves. A subsequent rulemaking

will address the appropriate stage at

which defenses must be raised.

The proposed rule also allows

optional documentation to be attached

to the response form, including copies

of the works involved in the claim. In

requesting this information, the Office is

seeking to provide respondents with the

opportunity to meaningfully respond

during the initial stage of the

proceeding.

For the response, the Office is

particularly interested in comments on

an appropriate presentation of possible

defenses available to the respondent,

any instructional or educational

material that would assist the

respondent in constructing its response,

and any other suggestions that would

enhance the respondent’s ability to be

meaningfully heard and the claimant to

be on notice of defenses.

97

With respect

to defenses, the Office seeks comment

on whether providing a list of defenses

(or a link to lists of defenses) that are

commonly pleaded in copyright

infringement suits would be productive

at this, or any, stage in the case, and

how to ensure that a respondent

understands the defenses available and

only asserts those that are applicable.

H. Counterclaims

The CCB may also hear counterclaims

that either ‘‘arise[ ] under section 106 or

section 512(f) and out of the same

transaction or occurrence that is the

subject of a claim of infringement, . . .

a claim of noninfringement, . . . or a

claim of misrepresentation,’’

98

or

‘‘arise[ ] under an agreement pertaining

to the same transaction or occurrence

that is the subject of a claim of

infringement . . . if the agreement

could affect the relief awarded to the

claimant.’’

99

Any asserted counterclaim

is subject to the same compliance

review applicable to an initial claim

100

and is subject to dismissal for

unsuitability.

101

The Office proposes that the

information required to assert a

counterclaim should closely mirror the

information required to assert a claim. A

counterclaim must be filed at the time

of the response, unless the Board, for

good cause, permits it to be asserted

later in the proceeding. This approach

resembles the general requirement of

asserting a compulsory counterclaim in

federal court.

102

In proposing this

approach, the Office is seeking to

maintain an efficient, orderly procedure

that provides parties sufficient notice as

to the issues involved in the proceeding.

The requirements for responding to a

counterclaim largely mirror the

requirements for responding to a claim,

including that a failure to file a response

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17 U.S.C. 1506(f)(2) (stating that when the

Copyright Claims Attorney finds a counterclaim to

be compliant, ‘‘the counterclaimant and such other

parties shall be so notified’’).

104

Id. at 1504(c)(4).

105

Id. at 708.

106

Id. at 1501(1).

107

Id. at 1506(e)(3).

108

Id. at 1510(c).

109

The statutory fee for filing suit in a federal

district court is $350, 28 U.S.C. 1914(a), and an

additional fee of $52 is charged as an administrative

fee by the Judicial Conference of the United States.

Id.

110

17 U.S.C. 1506(e).

111

Id. at 1506(x).

112

Id. at 1501(c).

113

H.R. Rep. No. 116–252, at 17; S. Rep. No. 116–

105, at 9–10.

114

S. Rep. No. 116–105, at 4 n.4.

115

17 U.S.C. 1506(e)(3).

116

Id. at 1506(i) (‘‘If proof of service has been

filed by the claimant and the respondent does not

submit an opt-out notice to the Copyright Claims

Board within that 60-day period, the proceeding

shall be deemed an active proceeding.’’).

117

See, e.g., Maryland Courts, District Court of

Maryland Cost Schedule DCA–109, (rev. 2018),

https://www.courts.state.md.us/sites/default/files/

import/district/forms/acct/dca109.pdf (assessing

$18.00 for a small claims cross claim); Superior

Court of California, Statewide Civil Fee Schedule

(2014), https://www.courts.ca.gov/documents/

filingfees.pdf (assessing fees for the answer or other

first paper filed by a party other than plaintiff).

118

17 U.S.C. 1506(g)(5)(B).

119

86 FR 16160.

120

37 CFR 201.3(c)(23).

121

Booz Allen Hamilton, 2017 Fee Study Report

26 (2017), https://www.copyright.gov/rulemaking/

feestudy2018/fee_study_report.pdf.

will constitute default. The triggering

event for responding to a counterclaim,

however, is the notification by a

Copyright Claims Attorney that the

counterclaim is compliant,

103

rather

than the issuance of a scheduling order.

When a respondent files a counterclaim,

a Copyright Claims Attorney must

conduct the same compliance review

that occurs after the filing of an initial

claim. If the counterclaim is found to be

compliant, the Board will provide

notification of compliance, which will

begin the counterclaim respondent’s

thirty-day period to respond. The Board

then will issue a new scheduling order

updating the prior due dates as

appropriate.

The proposed rule does not provide a

mechanism for the respondent to the

counterclaim to opt out of the

proceeding. The Office encourages

comment on this issue, including as to

whether such a process is permitted

under the statute. The Office notes that

Congress did not set forth a procedure

for opting out of a counterclaim, in

contrast to the detailed procedure set

forth for the respondent’s initial ability

to opt out. It also is noteworthy that

Congress has limited allowable

counterclaims to those arising from the

same transaction or occurrence, and has

further limited such claims to those

implicating copyright or an agreement

affecting the relief to be awarded to the

claimant.

104

Accordingly, there arguably

should be no surprise for the claimant

when a counterclaim is asserted. For

example, a claimant who brings an

action before the CCB seeking a

declaration of noninfringement of a

work could reasonably expect a

counterclaim for infringement of that

same work. As the claimant has already

voluntarily submitted to, and in fact

requested, the CCB to take up the

general issue at hand, having an opt-out

procedure for counterclaims potentially

could constitute an inefficient use of

time and resources.

I. Fees

The Register has general authority to

set fees for Copyright Office services,

105

and is specifically directed to set certain

fees related to CCB proceedings.

106

Here, the Office sets forth proposed fees

relating to the CCB rules included in

this notice. The Office will propose

additional fees in subsequent

rulemakings for the services addressed

in those proceedings.

1. Fee for Filing a Claim

To commence a proceeding before the

CCB, a claim must be accompanied ‘‘by

a filing fee in such amount as may be

prescribed in regulations established by

the Register of Copyrights.’’

107

The

Office is given upper and lower limits

to the filing fees it may assess: ‘‘the sum

total of’’ filing fees must not be less than

$100 or exceed the ‘‘cost of filing an

action in a district court of the United

States,’’

108

currently $402.

109

The

Office understands the ‘‘sum total of’’

filing fees to consist of the two filing

fees indicated in the statute: The filing

fee for the initial claim

110

and the filing

fee to request review of a final

determination by the Register.

111

The

amount of fees must ‘‘further the goals

of the Copyright Claims Board.’’

112

The Office proposes an initial claim

filing fee of $100 in the interest of

facilitating access to the CCB. Given

Congress’s goal of ensuring that the CCB

be accessible to the widest constituency

possible,

113

the Office believes it is

appropriate to keep the fee at the

statutory minimum.

The Senate Report proposed in a

footnote that the Office consider a two-

tiered fee structure, with an initial fee

assessed when the claim is filed and a

second fee assessed after the claim

becomes active.

114

After consideration,

the Office has not included such a

framework in the proposed rule. First, it

is not clear that the Office has the

statutory authority to split fees in this

way. While the statute expressly

provides for a fee to initiate a claim,

115

it does not require a separate fee for a

proceeding to become active.

116

Furthermore, if the Office were to

establish a system in which it charged

less than $100 for the first tier, and the

claimant did not move on to the second

tier, the total filing fees would not reach

the statutory floor. The Office invites

comment on these issues.

For similar reasons, the Office does

not currently propose a fee for a

counterclaim. In contrast to the

statutory provisions relating to a claim,

the CASE Act contains no express

authorization for the Office to charge

fees for a counterclaim. The Office also

notes that fees for counterclaims are not

required in federal district court,

although some state courts do assess

such fees.

117

The Office welcomes

comment on this matter as well.

2. Fee for Designated Service Agents

As part of its authority to maintain a

directory of service agents, the Office

‘‘may require . . . corporations,

partnerships, and unincorporated

associations designating . . . service

agents to pay a fee to cover the costs of

maintaining the directory.’’

118

As

discussed in the NOI,

119

the designated

service agent directory will be similar in

nature to the Office’s existing DMCA

designated agent directory. The fee for

adding an entry to the DMCA

designated agent directory is $6.

120

This

amount was selected, despite an

estimated $52 operating cost, in part

due to the elastic nature of demand for

the DMCA directory.

121

The Office

anticipates that the demand for the CCB

designated service agent directory will

be similarly elastic, if not more, given

that participation in the designated

service agent directory is not a statutory

requirement. The proposed rule

accordingly sets a $6 fee for designation

of a service agent for CCB purposes. The

Office believes that setting the fee at this

low level will encourage participation

by corporations, partnerships, and

unincorporated associations, which in

turn will produce a robust database that

benefits claimants and respondents

alike.

List of Subjects

37 CFR Part 201

Copyright, General provisions.

37 CFR Part 220

Claims, Copyright, General.

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37 CFR Part 222

Claims, Copyright.

37 CFR Part 223

Claims, Copyright.

37 CFR Part 224

Claims, Copyright.

Proposed Regulations

For the reasons stated in the

preamble, the U.S. Copyright Office

proposes to amend Chapter II,

Subchapters A and B, of title 37 Code

of Federal Regulations to read as

follows:

Subchapter A—Copyright Office and

Procedures

PART 201—GENERAL PROVISIONS

■1. The authority citation for part 201

continues to read as follows:

Authority: 17 U.S.C. 702.

■2. In § 201.3, revise the section

heading and add paragraph (g) to read

as follows:

§ 201.3. Fees for registration, recordation,

and related services, special services, and

services performed by the Licensing

Section and the Copyright Claims Board.

* * * * *

(g) Copyright Claims Board fees. The

Copyright Office has established the

following fees for specific services

related to the Copyright Claims Board:

T

ABLE

4

TO

P

ARAGRAPH

(g)

Copyright claims board fees Fees

($)

(1) Filing a claim before the Copyright Claims Board ......................................................................................................................... 100

(2) Designation of a service agent by a corporation, partnership, or unincorporated association under 17 U.S.C. 1506(g)(5)(B),

or amendment of designation .......................................................................................................................................................... 6

(3) [Reserved] ...................................................................................................................................................................................... ........................

Subchapter B—Copyright Claims Board and

Procedures

■3. Add part 220 to read as follows:

PART 220—GENERAL PROVISIONS

Sec.

220.1 Definitions.

Authority: 17 U.S.C. 702, 1510.

§ 220.1. Definitions.

For purposes of this subchapter:

An initial notice means the notice of

a proceeding that accompanies a claim

or counterclaim in a Copyright Claims

Board proceeding as described in 17

U.S.C. 1506(g).

A second notice means the notice of

a proceeding sent by the Copyright

Claims Board as described in 17 U.S.C.

1506(h).

■4. Add part 222 read as follows:

PART 222—PROCEEDINGS

Sec.

222.1 [Reserved]

222.2 Initiating a proceeding; the claim.

222.3 Content of initial notice to

respondent.

222.4 Second notice by or on behalf of the

Board.

222.5 Service; designated service agents.

222.6 Waiver of service.

222.7 Response.

222.8 Counterclaim.

222.9 Response to counterclaim.

Authority: 17 U.S.C. 702, 1510.

§ 222.1 [Reserved]

§ 222.2 Initiating a proceeding; the claim.

(a) Initiating a proceeding. A claimant

may initiate a proceeding before the

Copyright Claims Board by submitting

the following information through the

electronic filing system—

(1) A claim, using a form provided on

the Copyright Claims Board’s website;

(2) A completed initial notice, using

the form provided on the Copyright

Claims Board’s website; and

(3) The filing fee set forth in 37 CFR

201.3.

(b) Electronic filing requirement.

Except as provided, otherwise in this

paragraph, to submit the claim and

filing fee, the claimant must be a

registered user of the Board’s electronic

filing system. A claimant who is unable

to use the electronic filing system and

submits the certification provided for in

37 CFR 222.5(e)(2)(ii) may initiate a

proceeding by using printed forms and

alternate submission instructions

provided by the Copyright Claims

Board.

(c) Contents of the claim. The claim

shall include:

(1) A caption, providing the name(s)

of the claimant(s) and respondent(s);

(2) Identification of the claims

asserted against the respondent(s),

which shall consist of at least one of the

following:

(i) A claim for infringement of an

exclusive right in a copyrighted work

provided under 17 U.S.C. 106;

(ii) A claim for a declaration of

noninfringement of an exclusive right in

a copyrighted work provided under 17

U.S.C. 106; or,

(iii) A claim under 17 U.S.C. 512(f) for

misrepresentation in connection with—

(A) A notification of claimed

infringement; or

(B) A counter notification seeking to

replace removed or disabled material;

(3) The name(s) and address(es) of the

claimant(s);

(4) The name(s) and address(es) of the

respondent(s);

(5) For a claim asserted under

paragraph (b)(2)(i) of this section—

(i) Whether the claimant is the legal

or beneficial owner of rights in a work

protected by copyright and, if there are

any co-owners, their names;

(ii) The following information for

each work at issue in the claim:

(A) The title of the work;

(B) The author(s) of the work;

(C) If a copyright registration has

issued for the work, the registration

number and effective date of

registration;

(D) If an application for copyright

registration has been submitted but a

registration has not yet issued, the

service request number (SR number)

and application date; and

(E) The work of authorship’s category,

as set forth in 17 U.S.C. 102 for each

work at issue, or, if the claimant is

unable to determine the applicable

category, a brief description of the

nature of the work.

(iii) A statement describing the facts

relating to the alleged infringement,

including, to the extent known:

(A) Which exclusive rights as set forth

in 17 U.S.C. 106 are at issue;

(B) The beginning date of the alleged

infringement;

(C) The name(s) of the person(s) or

organization(s) alleged to have infringed

the work;

(D) The facts leading the claimant to

believe the work has been infringed;

(E) Whether the alleged infringement

has continued up to the date the claim

was filed, or, if it has not, the date the

alleged infringement ceased;

(F) Where the alleged act(s) of

infringement occurred; and

(G) If the claim of infringement is

asserted against an online service

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provider as defined in 17 U.S.C.

512(k)(1)(B) for infringement by reason

of the storage of or referral or linking to

infringing material that may be subject

to the limitations on liability set forth in

subsection 17 U.S.C. 512(b), (c), or (d),

an affirmance that the claimant has

previously notified the service provider

of the claimed infringement in

accordance with 17 U.S.C. 512(b)(2)(E),

(c)(3), or (d)(3), as applicable, and that

the service provider failed to remove or

disable access to the material

expeditiously upon the provision of

such notice;

(6) For a claim asserted under

paragraph (b)(2)(ii) of this section—

(i) The name of the party who is

asserting that the claimant has infringed

a copyright;

(ii) The following information for

each work alleged to have been

infringed, to the extent known to the

claimant:

(A) The title;

(B) If a copyright registration has

issued for the work, the registration

number and effective date of

registration;

(C) If an application for copyright has

been submitted, but a registration has

not yet issued, the service request

number (SR number) and registration

application date; and

(D) The work’s category, as set forth

17 U.S.C. 102, or, if the claimant is

unable to determine which category is

applicable, a brief description of the

nature of the work;

(iii) A brief description of the activity

at issue in the claim, including:

(A) Any exclusive rights as set forth

in 17 U.S.C. 106 that may be implicated;

(B) The beginning and ending dates of

the activities at issue;

(C) Whether the activities at issue

have continued to the date the claim

was filed;

(D) The name(s) of the person(s)

involved in the activities at issue; and

(E) Where the activities at issue

occurred;

(iv) A brief statement describing the

reasons why the claimant believes that

no infringement occurred, including any

relevant history or agreements between

the parties and whether any exceptions

and limitations as set forth in 17 U.S.C.

107 through 122 are implicated;

(7) For a claim asserted under

paragraph (b)(2)(iii) under this section—

(i) The sender of the notification of

claimed infringement;

(ii) The recipient of the notification of

claimed infringement;

(iii) The date the notification of

claimed infringement was sent;

(iv) If a counter notification was sent

in response to the notification—

(A) The sender of the counter

notification;

(B) The recipient of the counter

notification;

(C) The date the counter notification

was sent; and

(D) A description of the counter

notification;

(v) The words in the notification or

counter notification that allegedly

constituted a misrepresentation;

(vi) An explanation of why the

identified words allegedly constituted a

misrepresentation; and

(vii) An explanation of how the

alleged misrepresentation caused harm

to the claimant(s);

(8) A statement describing and

estimating the monetary harm suffered

by the claimant(s) as a result of the

alleged activity. For claims of

infringement, this statement may

address the copyright owner’s actual

damages and the profits received by

respondent(s) that are attributable to the

alleged infringement;

(9) Whether the claimant requests that

the proceeding be conducted as a

‘‘smaller claim’’ under 17 U.S.C. 1506(z)

and 37 CFR part 226, and would accept

a limitation on total damages of $5,000

if the request is granted; and

(10) A certification under penalty of

perjury that the information provided in

the claim is accurate and truthful to the

best of the certifying party’s knowledge.

The certification shall include the

typed, printed, or handwritten signature

of the claimant(s), and if the signature

is handwritten it shall be accompanied

by a typed or printed name.

(d) Additional matter. The claimant

may also include, as attachments to or

files accompanying the claim:

(1) A copy of the certificate of

copyright registration for a work that is

the subject of the proceeding;

(2) A copy of the allegedly infringed

work. This copy may also be

accompanied by additional information,

such as a hyperlink, that shows where

the allegedly infringed work has been

posted;

(3) A copy of the allegedly infringing

material. This copy may also be

accompanied by additional information,

such as a hyperlink, that shows any

allegedly infringing activity;

(4) A copy of the notification of

claimed infringement that is alleged to

contain the misrepresentation;

(5) A copy of the counter notification

that is alleged to contain the

misrepresentation; and

(6) Any other exhibits that play a

significant role in setting forth the facts

of the claim.

§ 222.3 Content of initial notice to

respondent.

(a) Content of initial notice. The

initial notice to the respondent shall be

prepared using a form made available by

the Copyright Claims Board that shall—

(1) Include on the first page a caption

that identifies the parties and includes

the docket number assigned by the

Board;

(2) Be addressed to the respondent;

(3) Identify the claimant and provide

a mailing address and other contact

information for the claimant or, if the

claimant is represented by counsel, the

claimant’s counsel;

(4) Advise the respondent that a legal

proceeding has been commenced by the

claimant(s) in the Board against the

respondent;

(5) Identify the nature of the claims

asserted against the respondent, which

shall consist of at least one of the

following:

(i) A claim for infringement of an

exclusive right in a copyrighted work

provided under 17 U.S.C. 106;

(ii) A claim for a declaration of

noninfringement of an exclusive right in

a copyrighted work provided under 17

U.S.C. 106 ; and

(iii) A claim under 17 U.S.C. 512(f) for

misrepresentation in connection with a

notification of claimed infringement or

a counter notification seeking to replace

removed or disabled material;

(6) Describe the Board, including that

it is a three-member tribunal within the

Copyright Office that has been

established by law to resolve certain

copyright disputes in which the total

monetary recovery does not exceed

$30,000;

(7) State that the respondent has the

right to opt out of participating in the

proceeding, and that the consequence of

opting out is that the proceeding will be

dismissed without prejudice and the

claimant will have to determine

whether to file a lawsuit in a federal

district court;

(8) State that if the respondent does

not opt out within 60 days from the day

the respondent received the initial

notice, the consequences are that the

proceeding will go forward and the

respondent will—

(i) Lose the opportunity have the

dispute decided by the federal court

system, created under Article III of the

Constitution of the United States; and

(ii) Waive the right to have a trial by

jury regarding the dispute;

(9) State that the notice is in regard to

an official government proceeding and

provide information on how to access

the docket of the proceeding in the

Board’s electronic filing system;

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(10) Provide information on how to

become a registered user of the Board’s

electronic filing system;

(11) State that parties may represent

themselves in the proceeding, but note

that a party may wish to consult with

an attorney or with a law school clinic,

and provide reference to pro bono (free)

resources which may be available and

are listed on the Board’s website;

(12) Include the name, address, email

address, and telephone number of the

claimant(s) or, if a claimant is

represented by counsel, of the

claimant’s counsel;

(13) Indicate where other pertinent

information concerning proceedings

before the Board may be found on the

Board’s website;

(14) Provide direction on how a

respondent may opt out of the

proceeding, either online or by mail;

and

(15) Include any additional

information that the Board may

determine should be included.

(b) Following notification from the

Board pursuant to section 17 U.S.C.

1506(f)(1)(A) to proceed with service of

the claim, the respondent shall cause

the initial notice, the claim, the paper

opt-out notification form, and any other

documents required by the direction of

the Board to be served with the initial

notice and the claim, upon each

respondent as prescribed in 37 CFR

222.5(a) and 17 U.S.C. 1506(g). The

copy of the claim that is served shall be

the copy that is, at the time of service,

available on the Board’s electronic filing

system.

§ 222.4 Second Notice by or on behalf of

the Board.

(a) Content of second notice. The

second notice to the respondent shall:

(1) Include on the first page a caption

identifying the parties and the docket

number;

(2) Be addressed to the respondent,

using the address that appeared in the

initial notice;

(3) Include the claimant identification

and contact information from the initial

notice;

(4) Advise the respondent that a legal

proceeding has been commenced by the

claimant(s) in the Copyright Claims

Board against the respondent;

(5) Identify the nature of the claims

asserted against the respondent, which

shall consist of at least one of the

following:

(i) A claim for infringement of an

exclusive right in a copyrighted work

provided under 17 U.S.C. 106;

(ii) A claim for a declaration of

noninfringement of an exclusive right in

a copyrighted work provided under 17

U.S.C. 106; and

(iii) A claim under 17 U.S.C. 512(f) for

misrepresentation in connection with—

(A) A notification of claimed

infringement; or

(B) A counter notification seeking to

replace removed or disabled material.

(6) State that the respondent has the

right to opt out of participating in the

proceeding, and that the consequence of

opting out is that the proceeding will be

dismissed without prejudice and the

claimant will have to determine

whether to file a lawsuit in a federal

district court;

(7) State that if the respondent does

not opt out within 60 days from the day

the respondent received the initial

notice, the consequences are that the

proceeding will go forward and the

respondent will—

(i) Lose the opportunity have the

dispute decided by the federal court

system, created under Article III of the

Constitution of the United States; and

(ii) Waive the right to have a trial by

jury regarding the dispute;

(8) Provide information on how to

access the docket of the proceeding in

the Board’s electronic filing system;

(9) Provide information on how to

become a registered user of the Board’s

electronic filing system;

(10) State that parties may represent

themselves in the proceeding, but note

that a party may wish to consult with

an attorney or with a law school clinic,

and provide reference to pro bono (free)

resources which may be available and

are listed on the Board’s website;

(11) Include the name, address, email

address, and telephone number of the

claimant(s) or, if a claimant is

represented by counsel, of the

claimant’s counsel;

(12) Indicate where other pertinent

information concerning proceedings

before the Board may be found on the

Board’s website;

(13) Provide direction on how a

respondent may opt out of the

proceeding, either by online or by mail;

and

(14) Include any additional

information that the Board may

determine should be included.

(b) Timing of second notice. The

Board shall issue the second notice in

the manner prescribed by 37 CFR 222.5

no later than 20 days after the claimant

files proof of service or a completed

waiver of service with the Board unless

the respondent has already submitted an

opt-out notification pursuant to 37 CFR

223.1.

§ 222.5 Service; designated service

agents.

(a) Service of initial notice, claim, and

similar documents issued by the Board

upon each party in accordance with

paragraph (d)(3) of this section.

(ii)(A) The Board shall serve the

second notice required under 17 U.S.C.

1506(h), along with a copy of the paper

opt-out notification form, by sending

them via certified mail to the

respondent at the address provided—

(1) In the designated service agent

directory, if the respondent is a

corporation, partnership, or

unincorporated association that has

designated a service agent; and

otherwise

(2) By the claimant in the claim.

(B) The Board shall also serve the

second notice by email if an email

address for the respondent has been

provided in the designated service agent

directory or by the claimant.

(2) Service by a party. Unless these

regulations or the Board provides

otherwise, each party to a proceeding

shall serve on every other party each of

the following documents in the manner

prescribed in paragraph (d)(3) of this

section:

(i) Any document filed by the

respondent other than an opt-out

notification;

(ii) Any document filed by the

claimant following the service of the

initial notice and the claim;

(iii) A discovery document required to

be served on a party;

(iv) A party submission filed with the

Board pursuant to 17 U.S.C. 1506(m);

(v) A written notice of appearance or

any similar document; and

(vi) Any other document permitted to

be filed by the Board.

(3) Service of other documents: How

made.—(i) Service on whom.

(A) If a party is represented by an

attorney or authorized representative,

service under this rule must be made on

the attorney or authorized

representative unless the Board orders

service on the party.

(B) If a party is not represented,

service under this rule must be made on

the party.

(ii) Service in general. (A) A

document is served under this

paragraph by sending it to a registered

user by filing it with the Board’s

electronic filing system or sending it by

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other electronic means that the person

to be served consented to in writing. For

these service methods, service is

complete upon filing or sending,

respectively, but is not effective if the

filer or sender learns that it did not

reach the person to be served.

(B) A party who is not represented by

counsel and who submits a certification

pursuant to 37 CFR 222.5(e)(2)(ii) and

serves that certification upon the other

parties by one of the methods set forth

in paragraphs (d)(1), (2), or (3) of this

section may be excused from serving

documents and receiving service of

documents electronically by the means

set forth in paragraph (d)(3)(ii)(A) of this

section. Service of a document by or

upon such a person shall be

accomplished by—

(1) Mailing it to the person’s last

known address, in which event service

is complete upon mailing it to the

person;

(2) Emailing it to the person, if the

person has consented to receive service

by email;

(3) Handing it to the person;

(4) Leaving it at the person’s office

with a clerk or other person in charge

or in a conspicuous place in the office;

(5) Leaving it at the person’s dwelling

or usual place of abode with someone of

suitable age and discretion who resides

there.

(e) Filing—(1) Required filings and

certificate of service. Other than service

of the initial notice and claim, any

document that is required to be served—

together with a certificate of service in

cases where a certificate of service is

required—must be filed with the Board

within a reasonable time after service,

but no later than thirty days after service

was completed. Notwithstanding the

above, unless the Board orders

otherwise, discovery requests and

responses must not be filed unless they

are used in the proceeding, as needed,

in relation to discovery disputes or

submissions on the merits.

(2) How filing is made—in general. (i)

A document is filed by submitting it

electronically to the Board’s electronic

filing system.

(ii) A party who is not represented by

counsel may be excused from the

requirements set forth in 37 CFR

222.5(e)(1) by submitting a statement to

the Board certifying under penalty of

perjury that the party is unable to use

the Board’s electronic filing system or

that doing so would cause an undue

hardship. The party must submit this

statement on a form obtained from the

Board. A party who submits such a

statement may, file a document by—

(A) Email, to an email address as

directed by the Board;

(B) Mail, by placing it in an envelope

addressed to Copyright Claims Board,

Library of Congress, James Madison

Memorial Building, 101 Independence

Avenue SE, Washington, DC 20559–

6000 or P.O. Box 71380, Washington,

DC 20024–1380, with postage prepaid,

and depositing it with the United States

Postal Service or major commercial

carrier, such as UPS or FedEx, for

delivery;

(C) Hand delivery by a private party

between the hours of 8:30 a.m. and 5:00

p.m. to the Copyright Office Public

Information Office, Room LM–401 in

the James Madison Memorial Building

of the Library of Congress, in an

envelope addressed as follows:

Copyright Claims Board, U.S. Copyright

Office, Library of Congress, James

Madison Memorial Building, 101

Independence Avenue SE, Washington,

DC 20559; or,

(D) Hand delivery by a commercial

courier (excluding FedEx, UPS, and

similar courier services); the envelope

must be delivered to the Congressional

Courier Acceptance Site (CCAS) located

at Second and D Street NE, Washington,

DC, addressed as follows: Copyright

Claims Board, Library of Congress,

James Madison Memorial Building, 101

Independence Avenue SE, Washington,

DC 20559–6000.

(3) Certificate of service. (i) Except as

provided in paragraph (e)(2) of this

section, every document filed with the

Board and required to be served upon

all parties must be accompanied by a

certificate of service signed by (or on

behalf of) the party making the service.

(ii) For any filing that occurs after the

filing of a response, no certificate of

service is required when a document is

served by filing it with the Copyright

Claims Board’s electronic filing system.

§ 222.6 Waiver of service.

(a) Content of waiver of service

request. The request for waiver of

service form shall:

(1) Bear the name of the Copyright

Claims Board;

(2) Include on the first page and

waiver page the caption identifying the

parties and the docket number;

(3) Be addressed to the respondent;

(4) Contain the date of the request;

(5) Notify the respondent that a legal

proceeding has been commenced by the

claimant(s) in the Board against the

Respondent;

(6) Advise that the form is not a

summons or official notice from the

Board;

(7) Request that respondent waive

formal service of summons by signing

the enclosed waiver;

(8) State that a waiver of personal

service shall not constitute a waiver of

the right to opt out of the proceeding.

(9) Describe the effect of agreeing or

declining to waive service;

(10) Include a waiver of personal

service provided by the Board for

respondent to sign that includes:

(i) An affirmation that the respondent

is waiving service;

(ii) An affirmation that waiving

service does affect respondent’s ability

to opt out of the proceeding;

(iii) An affirmation that respondent

understands the requirement to opt out

within 60 days of receiving the request;

(iv) The name, address, email address,

and telephone number of the

respondent; and

(v) The typed, printed, or handwritten

signature of the respondent, and if the

signature is handwritten it shall be

accompanied by a typed or printed

name.

(b) Delivery of request for waiver of

service. A claimant may request that a

respondent waive personal service as

provided by 17 U.S.C. 1506(g)(6) by

delivering, via first class mail, the

following to the respondent:

(1) A completed waiver of personal

service form provided on the Board’s

website;

(2) The documents described in 37

CFR 222.3, including the initial notice

and the claim; and

(3) An envelope, with postage prepaid

and addressed to the claimant.

(c) Completing waiver of service. The

respondent may complete waiver of

service by returning the signed waiver

form in the postage prepaid envelope to

claimant by mail or, if the claimant also

provides an email address to which the

waiver of personal service form may be

returned, by means of an email to which

a copy of the signed form is attached.

Waiving service does affect respondent’s

ability to opt out of proceedings.

(d) Timing of completing waiver. The

respondent has 30 days from the date on

which the request was sent to return the

waiver form.

§ 222.7 Response.

(a) Filing a response. A respondent

who does not opt out within 60 days

after receiving the initial notice shall

begin participation before the Board by

submitting a response through the

electronic filing system using the

response form provided by the Board,

and serving the response form in the

manner set forth in 37 CFR 222.5(d).

Except as provided in this paragraph, to

submit the response, the respondent

must be a registered user of the

electronic filing system. A respondent

who is unable to use the electronic

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filing system and submits the

certification provided for in 37 CFR

222.5(e)(2)(ii) may file a response by

using printed forms and alternate

submission instructions provided by the

Board.

(b) Content of response. The response

shall include:

(1) A caption identifying the parties

and the docket number assigned by the

Board;

(2) The name, address, phone number,

and email of each respondent filing the

response;

(3) A short statement, if applicable,

disputing any facts asserted in the

claim;

(4) For claims brought under 17

U.S.C. 1504(c)(1), a statement describing

in detail the dispute regarding the

alleged infringement, including any

defenses as well as any reason why the

Respondent believes there was no

copyright infringement, including

whether any exceptions and limitations

as set forth in 17 U.S.C. 107 through 122

that are implicated;

(5) For claims brought under 17

U.S.C. 1504(c)(2), a statement describing

in detail the dispute regarding the

alleged infringement, including reasons

why the respondent believes there was

copyright infringement;

(6) For claims brought under 17

U.S.C. 1504(c)(3), a statement describing

in detail the dispute regarding the

alleged misrepresentation and an

explanation of why the respondent

believes the identified words do not

constitute misrepresentation;

(7) Any counterclaims; and

(8) A certification under penalty of

perjury that the information provided in

the response is accurate and truthful to

the best of the certifying party’s

knowledge. The certification shall

include the typed, printed, or

handwritten signature of the

respondent(s), and if the signature is

handwritten it shall be accompanied by

a typed or printed name.

(c) Additional matter. The respondent

may also include, as attachments to or

files that accompany the Response:

(1) A copy of the certificate of

copyright registration for a work that is

the subject of the proceeding;

(2) A copy of the allegedly infringed

work. This copy may also be

accompanied by additional information,

such as a hyperlink, that shows where

the allegedly infringed work has been

posted;

(3) A copy of the allegedly infringing

material. This copy may also be

accompanied by additional information,

such as a hyperlink, that shows any

allegedly infringing activity;

(4) A copy of the notification of

claimed infringement that is alleged to

contain the misrepresentation;

(5) A copy of the counter notification

that is alleged to contain the

misrepresentation; and

(6) Any other exhibits that play a

significant role in setting forth the facts

of the response.

(d) Timing of response. The

respondent has 30 days from the

issuance of the scheduling order to

submit a response. If the respondent

waived service, the respondent has an

additional 30 days to submit the

response.

(e) Failure to file response. A failure

to file a response within the required

timeframe will constitute a default

under 17 U.S.C. 1506(u), and the Board

will begin proceedings in accordance

with 37 CFR 227.

§ 222.8 Counterclaim.

(a) Asserting a counterclaim. Any

party can assert a counterclaim falling

under the jurisdiction of the Board

that—

(1) Arises out of the same transaction

or occurrence as the initial claim; or

(2) Arises under an agreement

pertaining to the same transaction or

occurrence that is subject to an initial

claim of infringement, if the agreement

could affect the relief awarded to the

claimant.

(b) Electronic filing requirement. A

party may submit a counterclaim

through the electronic filing system

using the response form or counterclaim

form provided by the Board, and serving

the counterclaim as provided in § 222.5.

Except as otherwise provided in this

paragraph, to submit the counterclaim,

the respondent must be a registered user

of the electronic filing system. A

respondent who is unable to use the

electronic filing system and submits the

certification provided for in 37 CFR

222.5(e)(2)(ii) may submit a

counterclaim by using printed forms

and alternate submission instructions

provided by the Board.

(c) Content of counterclaim. The

counterclaim shall include:

(1) The name of the party against

whom the counterclaim is asserted;

(2) An identification of the

counterclaim, which shall consist of at

least one of the following:

(i) A claim for infringement of an

exclusive right in a copyrighted work

provided under 17 U.S.C. 106;

(ii) A claim for a declaration of

noninfringement of an exclusive right in

a copyrighted work provided under 17

U.S.C. 106; and

(iii) A claim under 17 U.S.C. 512(f) for

misrepresentation in connection with—

(A) A notification of claimed

infringement; or

(B) A counter notification seeking to

replace removed or disabled material.

(3) For a counterclaim asserted under

paragraph (b)(2)(i) of this section—

(i) Whether the counterclaimant is the

legal or beneficial owner of rights in a

work protected by copyright and, if

there are any co-owners, their names;

(ii) The following information for

each work at issue in the claim:

(A) The title of the work;

(B) The author(s) of the work;

(C) If a copyright registration has

issued for the work, the registration

number and effective date of

registration;

(D) If an application for copyright has

been submitted but a registration has

not yet issued, the service request

number (SR number) and registration

application date; and

(E) The work’s category, as set forth in

17 U.S.C. 102, or, if the counterclaimant

is unable to determine which category is

applicable, a brief description of the

nature of the work;

(iii) A statement describing the facts

relating to the alleged infringement,

including, to the extent known:

(A) Which exclusive rights as set forth

in 17 U.S.C 106 are at issue;

(B) The beginning date of the alleged

infringement;

(C) The name(s) of the person(s) or

organization(s) alleged to have infringed

the work;

(D) The nature of the alleged

infringement;

(E) Whether the alleged infringement

has continued up to the date the claim

was filed, or, if it has not, the date the

alleged infringement ceased;

(F) Where the alleged act(s) of

infringement occurred; and

(G) If the claim of infringement is

asserted against an online service

provider as defined in 17 U.S.C.

512(k)(1)(B) for infringement by reason

of the storage of or referral or linking to

infringing material that may be subject

to the limitations on liability set forth in

subsection 17 U.S.C. 512(b), (c), or (d),

an affirmance that the counterclaimant

has previously notified the service

provider of the claimed infringement in

accordance with 17 U.S.C. 512(b)(2)(E),

(c)(3), or (d)(3), as applicable, and that

the service provider failed to remove or

disable access to the material

expeditiously upon the provision of

such notice;

(4) For a counterclaim asserted under

paragraph (b)(2)(ii) of this section—

(i) The name of the party who is

asserting that the counterclaimant has

infringed a copyright;

(ii) The following information for

each work alleged to have been

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infringed, if that information is known

to the counterclaimant:

(A) The title;

(B) If a copyright registration has

issued for the work, the registration

number and effective date of

registration;

(C) If an application for copyright has

been submitted, but a registration has

not yet issued, the service request

number (SR number) and registration

application date; and

(D) The work’s category, as set forth

17 U.S.C. 102, or, if the counterclaimant

is unable to determine which category is

applicable, a brief description of the

nature of the work;

(iii) A brief description of the activity

at issue in the claim, including:

(A) Any exclusive rights as set forth

in 17 U.S.C. 106 that may be implicated;

(B) The beginning and ending dates of

the activities at issue;

(C) Whether the activities at issue

have continued to the date the claim

was filed;

(D) The name(s) of the person(s)

involved in the activities at issue; and

(E) Where the activities at issue

occurred;

(iv) A brief statement describing the

reasons why the counterclaimant

believes that no infringement occurred,

including any relevant history or

agreements between the parties and

whether any exceptions and limitations

as set forth in 17 U.S.C. 107 through 122

are implicated;

(5) For a counterclaim asserted under

paragraph (b)(2)(iii) of this section—

(i) The sender of the notification of

claimed infringement;

(ii) The recipient of the notification of

claimed infringement;

(iii) The date the notification of

claimed infringement was sent;

(iv) If a counter notification was sent

in response to the notification—

(A) The sender of the counter

notification;

(B) The recipient of the counter

notification;

(C) The date the counter notification

was sent; and

(D) A description of the counter

notification;

(v) The words in the notification or

counter notification that allegedly

constituted a misrepresentation;

(vi) An explanation of why the

identified words allegedly constituted a

misrepresentation; and

(vii) An explanation of how the

alleged misrepresentation caused harm

to the counterclaimant(s);

(6) A statement describing the harm

suffered by the counterclaimant(s) as a

result of the alleged activity. For claims

of infringement, this statement may

include a description of the profits

attributable to the alleged infringement

received by the counterclaimant(s)

against whom the counterclaim is

asserted.

(7) A statement describing the

relationship between the initial claim

and the counterclaim; and

(8) A certification under penalty of

perjury that the information provided in

the counterclaim is accurate and

truthful to the best of the certifying

party’s knowledge. The certification

shall include the typed, printed, or

handwritten signature of the

counterclaimant(s), and if the signature

is handwritten it shall be accompanied

by a typed or printed name.

(d) Additional matter. The

counterclaimant may also include, as

attachments to or files that accompany

the counterclaim:

(1) A copy of the certificate of

copyright registration for a work that is

the subject of the proceeding;

(2) A copy of the allegedly infringed

work. This copy may also be

accompanied by additional information,

such as a hyperlink, that shows where

the allegedly infringed work has been

posted;

(3) A copy of the allegedly infringing

material. This copy may also be

accompanied by additional information,

such as a hyperlink, that shows any

allegedly infringing activity;

(4) A copy of the notification of

claimed infringement that is alleged to

contain the misrepresentation;

(5) A copy of the counter notification

that is alleged to contain the

misrepresentation; and

(6) Any other exhibits that play a

significant role in setting forth the facts

of the counterclaim.

(e) Timing of counterclaim. A

counterclaim must be served and filed

at the time of the response unless the

Board, for good cause, permits a

counterclaim to be asserted at a

subsequent time.

§ 222.9 Response to counterclaim.

(a) Filing a response to a

counterclaim. Within 30 days following

the Board’s issuance of notification that

a counterclaim is compliant in

accordance with 37 CFR part 224, a

claimant against whom a counterclaim

has been asserted (‘‘counterclaim

respondent’’) shall serve a response to

the counterclaim in the manner set forth

in 37 CFR 222.5(d) and shall file the

response to the counterclaim with the

Board in the manner set forth in 37 CFR

222.5(e).

(b) Content of response to a

counterclaim. The response to a

counterclaim shall include:

(1) A caption identifying the parties

and the docket number;

(2) The name, address, phone number,

and email address of each counterclaim

respondent filing the response;

(3) A short statement, if applicable,

disputing any facts asserted in the

counterclaim;

(4) For counterclaims brought under

17 U.S.C. 1504(c)(1), a statement

describing in detail the dispute

regarding the alleged infringement,

including any defenses as well as any

reason why the counterclaim

respondent believes there was no

infringement of copyright, including

any exceptions and limitations as set

forth in 17 U.S.C. 107 through 122 that

are implicated;

(5) For counterclaims brought under

17 U.S.C. 1504(c)(2), a statement

describing in detail the dispute

regarding the alleged infringement,

including reasons why the counterclaim

respondent believes there is

infringement of copyright;

(6) For counterclaims brought under

17 U.S.C. 1504(c)(3), a statement

describing in detail the dispute

regarding the alleged misrepresentation

and an explanation of why the

counterclaim respondent believes the

identified words do not constitute

misrepresentation; and

(7) A certification under penalty of

perjury that the information provided in

the response to the counterclaim is

accurate and truthful to the best of the

certifying party’s knowledge. The

certification shall include the typed,

printed, or handwritten signature of the

Counterclaim Respondent(s), and if the

signature is handwritten it shall be

accompanied by a typed or printed

name.

(c) Additional matter. The

counterclaim respondent may also

include, as attachments to or files that

accompany the counterclaim response:

(1) A copy of the certificate of

copyright registration for a work that is

the subject of the proceeding;

(2) A copy of the allegedly infringed

work. This copy may also be

accompanied by additional information,

such as a hyperlink, that shows where

the allegedly infringed work has been

posted;

(3) A copy of the allegedly infringing

material. This copy may also be

accompanied by additional information,

such as a hyperlink, that shows any

allegedly infringing activity;

(4) A copy of the notification of

claimed infringement that is alleged to

contain the misrepresentation;

(5) A copy of the counter notification

that is alleged to contain the

misrepresentation; and

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(6) Any other exhibits that play a

significant role in setting forth the facts

of the counterclaim response.

(d) Failure to file counterclaim

response. A failure to file a

counterclaim response within the

required timeframe will constitute a

default under 17 U.S.C. 1506(u), and the

Board will begin proceedings in

accordance with 37 CFR 227.

PART 223—OPT-OUT PROVISIONS

■5. The authority citation for part 223

continues to read as follows:

Authority: 17 U.S.C. 702, 1510.

■6. Revise § 223.1 to read as follows:

§ 223.1 Respondent’s opt-out.

(a) Effect of opt-out on particular

proceeding. A respondent may opt out

of a proceeding before the Board

pursuant to 17 U.S.C. 1506(i) following

the procedures set forth in this

regulation. A respondent’s opt out will

result in the dismissal of the claim

without prejudice.

(b) Content of opt-out notification.

The respondent’s opt-out notification

shall include:

(1) The docket number assigned by

the Board and contained in either the

initial notice served by the claimant or

the second notice;

(i) The respondent’s name;

(ii) The respondent’s address;

(2) The respondent’s affirmation that

the respondent will not appear before

the Board with respect to the claim

served by the claimant;

(3) A certification under penalty of

perjury that the individual completing

the notification is the respondent

identified in the claim served by the

claimant; and

(4) The typed, printed, or handwritten

signature of the respondent, and if the

signature is handwritten, it shall be

accompanied by a typed or printed

name.

(c) Process of opting out. Upon being

properly served with a notice and claim,

a respondent may complete the opt-out

process by—

(1) Completing and submitting the

online opt-out notification form

identified in the initial notice and

second notice and made available on the

Board’s website. An online opt-out is

not complete unless a confirmation code

provided with the initial notice or

second notice is included in the

submission; or,

(2) Completing the paper opt-out

notification form included with the

initial notice and second notice and

delivering it to the Board, by one of the

methods described in 37 CFR

222.5(e)(ii)(A) through (D).

(d) Timing of opt-out. The respondent

has 60 days from the date of service or

waiver of service to provide notice of its

opt-out election. When the last day of

that period falls on a weekend or a

Federal holiday, the ending date shall

be extended to the next Federal work

day.

(1) When opting out via the online

form under paragraph (c)(1) of this

section, the respondent’s opt out

notification must be completed by

midnight Eastern Time on the last day

of the opt out period.

(2) When opting out under paragraph

(c)(2) of this section, the respondent’s

opt out notification must be

postmarked, dispatched by a

commercial carrier, courier, or

messenger, or hand delivered to the

Office no later than the 60 day deadline.

(e) One opt-out per respondent. In

claims involving multiple respondents,

each respondent who elects to opt out

must separately complete the opt-out

process.

(f) Confirmation of opt-out. When a

respondent has completed the opt-out

process, the Board will notify all parties

to the proceeding.

(g) Effect of opt-out on refiled claims.

If the claimant attempts to refile a claim

against the same respondent(s), covering

the same acts and the same theories of

recovery after the respondent’s initial

opt-out notification, the Board will

apply the prior opt-out election and

dismiss the claim.

(h) Effect of opt-out on unrelated

claims. The respondent’s opt-out for a

particular claim will not be construed as

an opt-out for claims involving different

acts or different theories of recovery.

■7. Add part 224 to read as follows:

PART 224—REVIEW OF CLAIMS BY

OFFICERS AND ATTORNEYS

Sec.

224.1 Compliance review.

224.2 Dismissal for unsuitability.

Authority: 17 U.S.C. 702, 1510.

§ 224.1 Compliance review.

(a) Compliance review by Copyright

Claims Attorney. Upon the filing of a

claim or counterclaim with the Board, a

Copyright Claims Attorney shall review

the claim for compliance as provided in

this section.

(b) Substance of compliance review.

The Copyright Claims Attorney shall

review the claim or counterclaim for

compliance with all legal and formal

requirements for a claim or

counterclaim before the Board,

including:

(1) The provisions set forth under this

subchapter;

(2) The requirements set forth in 17

U.S.C. 1504(c), (d), and (e)(1); and

(3) Whether the allegations in the

claim or the counterclaim clearly do not

state a claim upon which relief can be

granted.

(c) Issuing finding. Upon completing

a compliance review, the Copyright

Claims Attorney will notify the party

that submitted the document in

accordance with 37 CFR 222.5 and 17

U.S.C. 1506(f) by—

(1) Informing the claimant or

counterclaimant that the claim or

counterclaim has been found to comply

with the applicable statutory and

regulatory requirements and instructing

the claimant to proceed with service

under 37 CFR 222.5 and 17 U.S.C.

1506(e); or

(2) Informing the claimant or

counterclaimant that the claim or

counterclaim, respectively, does not

comply with the applicable statutory

and regulatory requirements and

identifying the noncompliant issue(s)

according to the procedure set forth in

17 U.S.C. 1506(f).

(d) Clearance is not endorsement. The

finding that a claim or counterclaim

complies with the applicable statutory

and regulatory requirements does not

constitute a determination as to the

validity or of the allegations asserted or

other statements made in the claim or

counterclaim.

(e) No factual investigations. For the

purpose of the compliance review, the

Copyright Claims Attorney shall accept

the facts stated in the claim or

counterclaim materials, unless they are

contradicted by information provided

elsewhere in the materials or in the

Board’s records. The Copyright Claims

Attorney will not conduct an

investigation or make findings of fact;

however, the Copyright Claims Attorney

may take administrative notice of facts

or matters that are well known to the

general public, and may use that

knowledge during review of the claim or

counterclaim.

§ 224.2 Dismissal for unsuitability.

(a) Review by Copyright Claims

Attorney. During the review of the claim

under 37 CFR 224.1, the Copyright

Claims Attorney shall review the claim

or counterclaim for unsuitability on

grounds set forth in 17 U.S.C. 1506(f)(3).

If the Copyright Claims Attorney

concludes that the claim should be

dismissed for unsuitability, the

Copyright Claims Attorney shall

recommend to the Copyright Claims

Board that the Board dismiss the claim

and shall set forth the basis for that

conclusion.

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(b) Dismissal by the Board for

unsuitability. (1) If, upon

recommendation by a Copyright Claims

Attorney as set forth in paragraph (a) of

this section or at any other time in the

proceeding upon the suggestion of a

party or on its own initiative, the Board

determines that a claim or counterclaim

should be dismissed for unsuitability

under 17 U.S.C. 1506(f)(3), the Board

shall issue an order stating its intention

to dismiss the claim without prejudice.

(2) Within 30 days following issuance

of an order under paragraph (b) of this

section, the claimant or counterclaimant

may request that the Board reconsider

its determination. The respondent or

counterclaim respondent may file a

response within 30 days following

service of the claimant’s request.

(3) Following the expiration of the

time for the respondent or counterclaim

respondent to submit a response, the

Board shall render its final decision

whether to dismiss the claim for

unsuitability.

Dated: September 15, 2021.

Kevin R. Amer,

Acting General Counsel and Associate

Register of Copyrights.

[FR Doc. 2021–20303 Filed 9–28–21; 8:45 am]

BILLING CODE 1410–30–P

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 13

RIN 2900–AR11

Fiduciary Bond

AGENCY

: Department of Veterans Affairs.

ACTION

: Proposed rule.

SUMMARY

: The Department of Veterans

Affairs (VA) proposes to amend its

regulations that govern fiduciary

activities. More specifically, the

proposed amendments would revise

specific procedures to exempt a VA-

appointed fiduciary who is also serving

as a court-appointed fiduciary from

posting multiple bonds and to also

exempt a VA-appointed fiduciary that is

also a State agency with existing, State-

mandated liability insurance or a

blanket bond from having to obtain an

additional bond payable to the Secretary

of Veterans Affairs.

DATES

: Comments must be received by

VA on or before November 29, 2021.

ADDRESSES

: Comments may be

submitted through

www.Regulations.gov. Comments

should indicate that they are submitted

in response to RIN 2900–AR11—

Fiduciary Bond. Comments received

will be available at www.regulations.gov

for public viewing, inspection or copies.

FOR FURTHER INFORMATION CONTACT

:

David Klusman, Lead Program Analyst,

Pension and Fiduciary Service (21PF),

Veterans Benefits Administration,

Department of Veterans Affairs, 810

Vermont Ave. NW, Washington, DC

20420; (202) 632–8863. (This is not a

toll-free number).

SUPPLEMENTARY INFORMATION

: VA

administers a fiduciary program for

beneficiaries who, as a result of injury,

disease, the infirmities of advanced age,

or being less than 18 years of age,

cannot manage their own VA benefits.

Under this program, VA oversees these

vulnerable beneficiaries, and appoints

and oversees fiduciaries who manage

these beneficiaries’ benefits. VA’s

current statutory authority for this

program is in 38 U.S.C. chapters 55 and

61.

VA is authorized to issue payments to

and supervise fiduciaries acting on

behalf of beneficiaries under 38 U.S.C.

5502. In 2004, Congress amended 38

U.S.C. chapters 55 and 61 to add new

provisions which, among other things,

authorize VA to conduct specific

investigations regarding the fitness of

individuals to serve as fiduciaries and

reissue certain benefits misused by

fiduciaries. In relevant part, the law

provides that any certification of a

person as a fiduciary shall be made on

the basis of ‘‘the furnishing of any bond

that may be required by the Secretary.’’

38 U.S.C. 5507(a)(3). On its face, this

statutory language provides VA with

authority to decide whether to require a

bond.

Under certain circumstances, if a

fiduciary misuses benefits, the law

requires that the Secretary pay the

beneficiary an amount equal to the

amount of benefits that were misused.

38 U.S.C. 6107. In 2018, VA amended

its fiduciary program regulations to

implement current law. Fiduciary

Activities, 83 FR 32716 (July 13, 2018).

As stated above, in some cases,

fiduciaries are required to obtain a

surety bond in order to protect the

beneficiaries’ benefits. However, there is

conflicting information in VA

regulations pertaining to bond

requirements for fiduciaries.

Specifically, 38 CFR 14.709 provides

that VA’s general policy is to require a

surety bond that follows State laws and

court rules from a court-appointed

individual fiduciary. Further, the

regulation indicates approved

alternative methods to a corporate

surety bond and authorizes the

acceptance of a lesser degree of

protection of funds under certain

circumstances. However, 38 CFR

13.230, which was promulgated in 2018

when VA amended its fiduciary

program regulations, requires that any

bond furnished by a fiduciary ‘‘[c]ontain

a statement that the bond is payable to

the Secretary of Veterans Affairs.’’ 38

CFR 13.230(d)(3)(ii). VA’s final rule that

amended 38 CFR part 13 went into

effect on August 13, 2018. 83 FR 32716.

When it was promulgated, VA explicitly

stated that ‘‘[w]e intend to issue uniform

rules for all VA-appointed fiduciaries,

such as allowable fees, surety bond

requirements and appropriate

investments, to include fiduciaries who

also serve as court-appointed guardians

for beneficiaries.’’ Id. at 32727. The rule

noted that ‘‘VA’s fiduciary regulations

will result in a gradual discontinuance

of the current practice of recognizing a

court-appointed guardian or fiduciary

for purposes of receiving VA benefits on

behalf of a VA beneficiary’’ and that,

‘‘VA will establish a national standard

for appointing and overseeing

fiduciaries.’’ Id. at 32735. VA noted in

the final rule that, ‘‘[b]ased on our

experience in administering the

program, the risks of not requiring all

fiduciaries, with the [general] exception

of spouses, to furnish a surety bond

significantly outweigh any burden on a

prospective fiduciary.’’ Id. at 32727. VA

set forth a number of factors that weigh

in favor of requiring a bond: (1) It serves

as a screening tool for VA to use in

confirming qualification for

appointment—in other words, if a

fiduciary cannot obtain a bond because

the bonding company considers the risk

of fund exploitation too high, VA will

not appoint the prospective fiduciary;

(2) it is consistent with VA’s oversight

obligations, which include deterring

fiduciary misuse of benefits; and (3) it

puts a fiduciary on notice that he or she

is liable to a third party for any payment

on the bond. Id. With the 2018

amendment, VA also promulgated

additional bond requirements under

§ 13.230(d) in order to protect a

beneficiary’s interests if a fiduciary

misuses funds, including a requirement

that the bond be payable to the

Secretary. More recently, in January

2021, Congress enacted Public Law 116–

315, which amended 38 U.S.C. 6107(b),

to require VA to reissue misused funds

to all beneficiaries, regardless of

whether VA negligence was involved.

Under current § 13.410(c), VA must

attempt to recoup any misused benefits,

either from the surety company or, if no

bond is in place, from the fiduciary

directly. VA then must reissue any

recouped benefits to the beneficiary’s

fiduciary successor to the extent they

VerDate Sep<11>2014 17:01 Sep 28, 2021 Jkt 253001 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 E:\FR\FM\29SEP1.SGM 29SEP1

lotter on DSK11XQN23PROD with PROPOSALS1

Published date	29 September 2021
Citation	86 FR 53897
Record Number	2021-20303
Section	Proposed rules
Court	Copyright Office,Library Of Congress

Copyright Claims Board: Initiation of Proceedings and Related Procedures

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