Later this month, the newly formed Copyright Claims Board (CCB) will officially start accepting cases. The CCB was formed in 2020, when Congress passed the CASE (Copyright Alternative in Small-Claims Enforcement) Act. The CCB is intended to provide an efficient and cost-effective alternative forum for copyright disputes. It offers streamlined proceedings and limited damages. But many scholars fear that no one will use it because participation is voluntary and a defendant can simply opt out of a CCB case (which must be done within 60 days of service), forcing the plaintiff to file in federal court. Here’s what we know so far:
Filing fees
$40 upon filing and another $60 if the defendant does not opt out. This is cheap compared to the current $402 filing fee in federal courts.
Pre-filing Registration is Not Required
In 2019, the Supreme Court in the Fourth Estate case clarified that a plaintiff needs an actual issued copyright registration (as opposed to a pending copyright application) before an infringement case can be filed in federal court. That is not the case with the CCB, which will allow claims to be filed if the plaintiff has a pending copyright application. That said, the CCB can decide to stay the case pending the issuance of a registration. If they do that, the CCB will expedite the processing of the application for a $50 expedite fee, which is much lower than the Copyright Office’s standard $800 expedite fee.
Limits on Damages
Damages in CCB cases are capped at $15,000 per work and $30,000 per case. By comparison, actual damages are unlimited in a federal infringement action, and statutory damages can be as high as $150,000 per work. Also, in federal court, a prevailing party is entitled to recover its legal fees and costs, while in the CCB, attorney’s fees are only recoverable if a claim or defense was filed in bad faith, and even then, the fees are capped at $5.000.
Limited Discovery and Streamlined Procedures
While the details have not been fully fleshed out, the CCB claims that discovery will likely be limited to modest voluntary disclosures, there will be no written motions practice, and most cases will be decided on the papers or through an informal video hearing.
Really Small Claims
If the damages sought are under $5,000, the case can be heard by only one member of the CCB (as opposed to the standard three-member panel), and the proceedings and discovery will be even more streamlined.
Only a Limited Number of Cases Can Be Filed by Parties or Attorneys
This is rather unique. A copyright owner can only file up to 30 CCB cases per year. And a law firm cannot file more than 80 cases per year. In addition, even if the defendant ops out of the CCB case and the case does not go forward, these opt-outs still count toward these caps.
“Appeals”
CCB decisions cannot be appealed to federal court, and a plaintiff cannot re-file the same infringement case in federal court after a CCB decision. If a party is unhappy with a CCB decision, they have a couple limited options. First, a party can ask the CCB to reconsider its decision, but only if there was a clear error of law or fact that was material to the outcome, or if there was a technical or clerical error. A party can also ask the Register of Copyrights to review the decision, but that review will only be granted if the Register of Copyrights finds that the CCB abused its discretion, which means that a lot of deference will be given to CCB decisions. The Register of Copyright’s decision can be reviewed by a federal court, but again, the only issue upon review is whether the CCB abused its discretion.
In the coming days, the CCB will be publishing a handbook to flesh out the rules and details. However, it remains to be seen whether anyone will file claims in the CCB, and if they do, whether any defendants will allow the case to proceed in the CCB rather than opting out. We will be keeping a close eye on this new forum as it develops. If you have a copyright issue, please contact us to discuss your options.
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