Copyright Claims Board Sides with Defaulting Party in Judgement

Back in April, I wrote a profile on Joe Hand Promotions (JHP), the Copyright Claims Board’s (CCB) most prolific filer.

JHP is the company that handles commercial and retail licenses for sporting pay-per-view events including boxing, UFC, WWE and AEW. They are where bars, restaurants and theaters turn to license such events to show to their customers.

The company has a 20+ year history of litigation, targeting businesses that have failed that showed events they license without a license. Though they have, at times, drawn criticism for their aggression, they’ve also been very successful, securing victories all over the country.

However, in April, they were adding a new venue to their list, targeting such businesses through the CCB, the new copyright small claims court system.

They have, overall, have had great success. To date, they have filed 32 different claims with the CCB and only six remain active as of this writing. Of the 26 that they have closed, 14 have been settled, seven more were voluntarily withdrawn, two were dismissed (one due to a lack of service and one due to an opt out) and three have reached a final judgement.

In those final judgements, the CCB has followed a clear pattern. In many cases, JHP filed the claim against both the business and against individuals involved in the alleged infringement. However, though it has been quick to find the businesses involved liable for copyright infringement, in both cases for an amount around $3,000, it has not found the individuals liable.

This came to light in a major way in the most recent final determination. This one in case 23-22B-0071, which was originally filed against two individuals, Lynette G. Giglio and Mary A. Dawson. The claims against Gigilo were alleged to be operators of the Bottoms Up Bar & Grill in Marysville, CA, which the accused of illegally showing a bowing event put on by Top Rank Promotions and TGB Promotions.

However, the bar itself was not named in the claim and, instead, just the two individuals were included in the claim. The claim against Gigilo was withdrawn shortly before the determination and, on final determination, the CCB ruled that Dawson should not be held liable either, despite the fact it was a default judgement and Dawson had not provided any evidence or participated in the case in any way.

The reason, according to the CCB, was that there was no evidence linking Dawson personally to the alleged infringement. The determination reads, “As the Board has stated in its prior determinations where Joe Hand has brought claims against individual respondents, the Board will not find liability on the part of the individuals unless evidence is submitted specifically linking the individuals to the infringement at issue.”

The case represents the first time the CCB has ruled fully in favor of the respondent in a final determination. That said, in the two other cases where Joe Hand Promotions cases have reached a final determination, the board also dismissed claims against the individuals.

Though the case is, ultimately, only a minor setback for JHP in their efforts to use the CCB, the ruling should go a long way to calm some fears around the CCB, namely that it would be used to browbeat individual respondents.

Why This Matters

In the run up to the launch of the CCB, there was a broad concern that the board would become a haven for “copyright trolls” and other repeat filers who target individuals.

That, objectively, did not happen. The vast majority of the cases have involved small rightsholders filing cases against alleged small infringers, exactly as the CCB was intended to be used. Though JHP is by far the most frequent claimant before the CCB, they have only filed 32 claims and almost all have, primarily, targeted businesses.

However, in situations where JHP did file claims against individuals, such as the case against Dawson, the CCB has been quick to demand evidence that they were directly responsible for the alleged infringement. Without that, they’ve dismissed the claims, even when the defendant didn’t participate in the CCB process.

And that has been a theme for me as a watcher of the CCB. Though the CCB is not a court and should not be treated like one, it has taken its work equally as seriously as any judge in a federal court. This has included protecting respondents who don’t or can’t participate in the process, ensuring that federal law and case law history is being followed closely and that the right of parties are being respected.

While I wouldn’t describe JHP or its use of the CCB vexatious or problematic, the actions of the CCB have helped ensure that only the liable parties are held accountable.

Though there are many reasons to criticize the CCB, a lack of due diligence is not one of them.

What This Means for Filers

For potential filers with the CCB, this means one very simple thing: Do not take the CCB’s rules or procedures lightly and make sure that your case is an actual infringement under copyright law.

To be clear, the CCB is more approachable to a layperson than a federal court, both from a time, cost and complexity standpoint. The board has a much more informal process for filing cases, gathering evidence and finding facts.

However, that doesn’t mean that the CCB isn’t performing the same examinations that a regular court does. It looks at both the evidence and the law equally intensely and makes its decisions based on the same principles.

This, for serious filers, should be good news. However, it’s bad news for those that would seek to misuse it or file sloppy cases that misunderstand the law or the CCB’s procedures. As we saw in November, the CCB will not hesitate to bar attorneys and/or claimants for repeatedly violating the board’s rules.

For all the concern that the CCB would become a haven for copyright trolls or for bad faith copyright actions, the board has gone to great lengths to protect respondents from problematic claims, even when the responded didn’t participate in the process.

Bottom Line

In many ways, JHP is the perfect example of how and why the CCB is working well. The organization has been able to bring forth a large, but still reasonable, number of copyright claims (especially compared to companies that more broadly considered to be be “copyright trolls”) and has seen broad success, either winning or settling most of its cases.

However, even amongst that success, the CCB has worked hard to ensure that the correct parties are held liable while still protecting JHP’s rights.

While this realistically was always the most likely outcome of the CCB, especially if it was going to have any longevity, the concerns raised about the boad had many, including myself, being mindful of whether it would come to fruition.

In the end, this final judgement against JHP is proof that the future many had feared for the CCB did not come to fruition and shows that the board largely achieved its goal of being a more approach able and afforadble way to resolve minor copyright disputes.