Need-to-Knows of the New Copyright Claims Board for Small-Value Copyright Claims

The Copyright Claims Board is a new forum for copyright holders to pursue straightforward, low-economic-value claims related to copyright infringement. The CCB may be an attractive option for copyright owners who are priced out of or hesitant to pursue copyright infringement claims in the traditional federal court setting, as it generally is easier to navigate for self-represented parties and independent creators. The CCB is made up of a panel of three Copyright Claims Officers with knowledge and/or expertise in copyright law, and the Officers are supported by copyright attorneys and other legal professionals. All CCB proceedings are handled remotely, making this forum accessible nationwide.

This article will address the need-to-knows of this new “small claims” copyright court.

1. Limited Copyright Claims Only

The CCB only hears limited claims related to copyright law. The first claim is copyright infringementⁱ, whereby the claimant asserts the respondent used the copyrighted material unlawfully. The second type of claim is copyright noninfringementⁱⁱ, whereby a party accused of copyright infringement can ask the CCB to determine that no infringement has occurred or will occur by their actions. The third and last type of claim is misrepresentationⁱⁱⁱ, whereby the claimant asserts that the respondent made a false statement (i.e., misrepresentation) as to the content in a takedown notice or counter-notice to an online service provider that resulted in the copyright content being removed or reposted.

2. The Statute of Limitations Applies

Even though the CCB is not federal court, the federal statute of limitations for copyright infringement claims still applies. The federal statute of limitations for asserting copyright infringement claims is three years from the date the copyright infringement first took place.^iv

However, just because the infringement took place more than three years in the past does not immediately prevent a claimant from filing a claim in the CCB. The CCB will interpret the statute of limitations differently based on the place that has the most ties to the claim.^v If your claim is nearing or past the three-year mark, we recommend contacting a copyright attorney to help you determine whether your claim may still be viable.

3. Copyright Filing Required

To file a claim in the CCB, the claimant must either have a copyright registration for the work at issue in the claim or have a copyright application filed with the U.S. Copyright Office.^vi More information on filing a copyright application with the U.S. Copyright Office can be found here.

4. No Attorney Needed

Any party in the CCB does not need an attorney to represent them or assist them in navigating the proceedings. The CCB is designed to be user-friendly so that parties can navigate the proceedings independently. However, parties are not prevented from retaining an attorney to handle the proceedings on their behalf. The CCB has set up various mechanisms to make the proceedings user-friendly, including having a Copyright Claims Officer attend the parties’ conferences and requiring a standard set of discovery requests for the parties to use.

5. “Small” and “Smaller” Claims Only

The CCB hears “small” and “smaller” copyright claims only. The “small” claims, otherwise known as the Standard Proceeding, allow for damages up to $30,000 per proceeding, but no more than $15,000 per work infringed. This $30,000 cap can be reached through multiple claims, such as five separate claims of $6,000 each, or it can be two separate claims of $15,000 each. No matter how you slice it, $30,000 is the maximum damages that will be awarded.

The CCB also hears “smaller claims,” known as the Smaller Claim Proceeding, that allow for damages of up to $5,000 per proceeding.^vii Because the CCB is meant to be an efficient process for resolving copyright claims, the Smaller Claim Proceedings will be swifter and more streamlined than the Standard Proceedings.

6. The Fees Are Reasonable

Being a budget-friendly forum, the CCB charges a mere $40 filing fee for the claim. If the proceeding continues in the Active Phase, such as in the event of a respondent opting in or failing to opt out, then a secondary fee of $60 is required.

In the event a party wants a review of the decision, there is a $300 fee to request the Register of Copyrights to review the final determination of the CCB.^viii

7. Limitations on Filed Proceedings

The CCB limits how many proceedings can be filed by a claimant, sole practitioner/legal counsel, or law firm in any 12-month period. A claimant, including a business’ parent company, subsidiaries, or other affiliates, is limited to 30 proceedings. A sole practitioner or legal counsel associated with a law firm is limited to 40 proceedings, while a law firm is limited to 80 proceedings.^ix

The CCB considers a filing to be any filing of a proceeding even if the filing is noncompliant, dismissed, or the respondent opts out. In the event a filer exceeds their respective limit, the claim will be dismissed without prejudice.

8. Types of Respondents

The CCB is an inclusive forum, but it does not include everyone. Specifically, the CCB cannot hear claims against foreign respondents or government or state entities. The CCB limits the type of respondents that can be sued by requiring each respondent’s U.S. address to file the claim.

9. Participation Is Optional

Participation in a CCB proceeding is optional. Respondents have 60 days to “opt out” of the proceedings once they are served. When a respondent chooses not to participate in a CCB proceeding, the respondent’s opt-out ends the proceedings. However, the respondent must formally opt out of the proceedings within the 60-day window by filling out the required form on the CCB’s online platform, eCCB. Otherwise, failing to opt out in the time frame allowed will automatically opt in the respondent, allowing the proceedings to continue.

Further, libraries and archives can preemptively opt out of any proceedings before a claim is filed against them. In the event a claimant wants to file a claim against a library or archive, they should review the list of libraries and archives that have already preemptively opted out here.

There are pros and cons for both parties when a respondent opts in or opts out. Because the CCB is a budget-friendly forum, a respondent who opts in will spend a fraction of the cost that they would otherwise spend defending themselves in federal court. Further, because the decision of the CCB is binding and the damages are limited to $30,000, a respondent who opts in will at worst owe $30,000 of damages to the claimant, or at best successfully litigate their side and prevent the claimant from relitigating the same claim in federal court. Of course, the downside to opting in is granting consent to the proceeding and agreeing to be held liable for damages, if any, that the CCB awards. However, the CCB will not consider whether an act of copyright infringement was willful, which prevents an award of willful infringement damages. Such damages can reach up to $150,000 per work in federal court.^x

On the other hand, opting out of CCB proceedings forces the claimant to decide to either forgo legal action or refile the claim(s) in federal court, which can be cost-prohibitive. For example, in 2020 the average copyright infringement case in federal court from filing the claim through the discovery stage (not including the trial) cost approximately $150,000.^xi

However, if the respondent opts out and the claimant pursues legal action in federal court, the claim for damages can significantly increase. While federal court does not have a damages cap, the U.S. Copyright Act allows for statutory damages up to $150,000 per work infringed^xii, which is a stark contrast to the CCB’s $30,000 per proceeding^xiii damages cap. Moreover, in federal court, parties can sue for attorneys’ fees and costs, which can increase the amount owed by the non-prevailing party.

10. The Decisions Are Binding

Decisions rendered by the CCB are binding, except in certain situations where the decision can be appealed or reviewed. This means that once a decision is reached in the claim, it cannot be re-litigated in federal court.

11. Attorneys’ Fees

In comparison to federal court, the prevailing party is not immediately allowed to pursue attorneys’ fees at the CCB. Instead, each party is required to pay their own legal fees, except where a party acts in bad faith. In the event a party acts in bad faith, including acting in a dishonest, intentionally misleading, or abusive way, the CCB can award attorneys’ fees up to $5,000. However, the CCB also has the discretion to award attorneys’ fees in excess of $5,000 in extraordinary cases, such as a pattern or practice of bad faith conduct.^xiv

12. Enforcing Damages

If the CCB issues a decision ordering a party to pay damages, the prevailing party can get a federal court to enforce that judgment in the event the party refuses to pay the damages awarded.^xv

While no substantive decisions have come out of the CCB yet, we are sure to see some exciting new developments with this alternative copyright forum in 2023.

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ⁱ https://ccb.gov/handbook/Infringement-Claim.pdf

ⁱⁱ https://ccb.gov/handbook/NonInfringement-Claim.pdf

ⁱⁱⁱ https://ccb.gov/handbook/Misrepresentation-Claim.pdf

^iv 17 USC §507(b)

^v https://ccb.gov/handbook/Infringement-Claim.pdf

^vi https://www.copyright.gov/title37/221/37cfr221-1.html (37 CFR § 221.1)

^vii https://ccb.gov/handbook/Smaller-Claims.pdf

^viii https://ccb.gov/about/; https://copyrightalliance.org/faqs/fees-bringing-defending-case-ccb/

^ix https://www.copyright.gov/title37/233/37cfr233-2.html; 37 CFR § 233.2

^x https://ccb.gov/handbook/Infringement-Claim.pdf (page 6)

^xi See AIPLA, 2021 REPORT OF THE ECONOMIC SURVEY 64 (2021) (the median cost of litigation of a copyright infringement case for less than $1 million at risk).

^xii 17 U.S.C. § 504(c)(2)

^xiii https://ccb.gov/handbook/Smaller-Claims.pdf

^xiv https://ccb.gov/faq/

^xv https://ccb.gov/faq/