Suppose you have not registered your copyright in a book with the U.S. Copyright Office until someone has infringed your copyright by copying substantial portions of your book. Let’s also suppose you can prove that the alleged infringer has infringed your work and you can prove that the infringement caused you lost sales, lost opportunities to license, or diminution in the value of the copyright in the amount of $20,000. Can you sue the alleged infringer for actual damages for the copyright infringement without going to federal court? The answer to this question is YES!
The U.S. Congress has established the Copyright Alternative in Small-Claims Enforcement Act of 2020 (CASE Act) to provide an alternative forum to federal court before the Copyright Office called the Copyright Claims Board (CCB) for resolving certain copyright disputes that involve up to $30,000 (called “small claims”). The use of the CCB is voluntary and both parties must agree to participate. The CCB provides advantages over federal court because certain copyright disputes may be resolved before a panel of copyright experts as opposed to a jury or a federal judge. The CCB proceeding is a streamlined proceeding and a less-expensive alternative compared to federal court.
The CCB consists of three Officers appointed by the Librarian of Congress on the recommendation of the Register of Copyrights. You do not need to travel to Washington, DC to participate because the CCB proceedings are conducted electronically and remotely. However, you are not permitted to file the same copyright claim or counterclaim in both the CCB and federal court.
How do you bring a claim before the CCB? The copyright owner must either (1) have a registration from the Copyright Office on the work alleged to be infringed or (2) have submitted a copyright application to register the work alleged to be infringed either before or simultaneously with the filing of their copyright claim. If your application is refused registration, the CCB will dismiss your claim without prejudice so that you can refile it again in federal court.
Before the CCB, monetary damages may be obtained if the amount is $30,000 or less. Like federal court, the copyright owner who brings a successful copyright infringement claim can choose to recover either statutory damages (without proving actual damages) or actual damages and profits based on lost sales, lost opportunities to license, diminution in the value of the copyright, and/or the profits made from the infringement. While the CCB cannot issue an “injunction” as they do in federal court, the CCB can require an infringer to stop engaging in further infringement. The CCB can, however, include in its determination a requirement that the accused infringer modify certain activities if that party has agreed to do so.
If your total damages do not exceed $5,000 before the CCB, how can a copyright owner proceed? The copyright owner may request consideration under the CCB’s “Smaller Claims” procedures. Under the “Smaller Claims”, the damages, exclusive of attorneys’ fees and costs, must be under $5,000 and these Smaller Claims will be decided by a single Copyright Claims Officer. While there are not three Officers, the decision will have the same effect as one issued by the full CCB. Under the Smaller Claims, the proceedings are even more streamlined than the typical cases before the CCB.
Do you need an attorney to bring a claim before the CCB? The answer is NO! You do not need an attorney to file or respond to a claim with the CCB because these proceedings have been designed to be clear and usable by persons without legal training. However, either party has the option to be represented by or consult with an attorney.
During the CCB proceeding, there will be some limited discovery than in federal court. The discovery process in a CCB proceeding is streamlined and the discovery period will be relatively brief. The scope of discovery includes written interrogatories and document requests. During the proceeding, if the CCB orders a respondent to pay damages, and it fails to do so, the copyright owner can ask a federal district court to take action to require payment.
If you disagree with a CCB determination, you can obtain a review through several avenues. Depending on the reasons for your disagreement, you will be able to ask the CCB, the Register of Copyrights (the Director of the Copyright Office), or a federal court to review the determination.
Based on the establishment of the CCB and the above scenario, you should file a claim before the CCB to recover actual damages for infringement of the copied portions of your book. However, you will still need to file a copyright application to register your copyright on the book with the U.S. Copyright Office before you can bring a claim before the CCB. Although registration of a U.S. copyright typically takes nine months, you can expedite the registration by requesting “Special Handling” when you apply for your copyright registration. Once the U.S. Copyright Office receives a request for Special Handling and it is approved, the copyright application is processed typically within five working days. However, the U.S. Copyright Office makes no guarantee that the copyright application can be processed within this time frame.
In summary, the CCB allows a copyright owner to recover damages up to $30,000 based on actual damages or statutory damages if you can prove infringement of your copyright. Although you are not entitled to an injunction, you can enforce your award of actual damages in a federal district court if the accused infringer does not pay the award. Therefore, if you have a claim for less than $30,000, you can still recover actual damages for copyright infringement without going to federal court.
