In the United States, copyright cases can be prohibitively expensive to litigate because they require going to federal court. The process can take months or years while racking up thousands of dollars in attorney’s fees. But with passage of the CASE Act in late 2020, the US government moved to establish the equivalent of a small-claims court that anyone can use for copyright claims without needing a lawyer. That court is called the Copyright Claims Board (CCB), and it’s about to start accepting claims later this spring. (For more background, see our January 2021 item.)
Last week, in a webinar hosted by several organizations, panelists discussed how the CCB would operate. As webinars go, this one was well run, well presented, and geared toward people who have never had to deal with courts or lawyers. The panelists clearly understood the spirit and intent of the CASE Act and appeared committed to making the CCB work in the way it’s intended. Moreover, each panelist expressed genuine interest in educating people on copyright law and helping claimants make use of the court effectively.
The CCB consists of three Copyright Claims Officers who preside over proceedings and are final decisionmakers on claims. One of the officers, David Carson, was on the panel, and he’s been practicing copyright law for 40 years. He described the process as simple and streamlined, at least when compared to federal court. Most of the work is done online; testimony is presented in writing. While CCB hearings are possible, Carson indicated they wouldn’t be needed for every claim, and decisions may be based only on testimony and submitted documents. If the CCB conducts a hearing, it will be done by videoconference; no travel will ever be necessary. The fee to submit a claim is $40; another $60 is charged when or if the case becomes active.
Since the process doesn’t require an attorney, the CCB will help claimants understand the law as needed. One of the panelists, Whitney Levandusky, works for the Copyright Office and comes from a background of public information and education about copyright law. She will be on the front lines helping people make their case to the CCB. Still, it’s possible that some claimants will want to seek an attorney’s advice or have an attorney representing them. The CCB plans to make a list available here of pro bono clinics and resources for when claimants aren’t sure where to turn.
The CCB process is entirely voluntary. It’s an alternative to federal court, not a replacement. Anyone who is accused of infringement (a “respondent”) can opt out of CCB proceedings, and the case ends there. That’s because the US Constitution guarantees the right to have copyright claims heard in a federal court, with a jury trial, so to have a CCB case heard, the respondent has to waive those rights. If they do not waive those rights, a claimant would then have to go to federal court to pursue the matter further.
This raises an important question: why would a respondent ever agree to the CCB process? Why not just opt out? After all, a respondent might reasonably assume the claimant is using the CCB to avoid the expense of federal court or otherwise doesn’t have an attorney—and will have to abandon the case. But Terrica Carrington, VP of legal policy at the Copyright Alliance, said the CCB process offers significant limited liability as compared to federal court (a cap of $15,000 per claim or $30,000 max). If a respondent realizes they did in fact infringe, it might make sense for them to go before the CCB rather than take their chances on paying far more than $30,000. “Just because someone is using the CCB doesn’t mean they can’t afford federal court,” Carrington said.
Libraries and archives can permanently opt out of the CCB process. Such institutions have a special provision under the law to do so, and they never have to respond to CCB claims if they opt out. (Presumably this would include the Internet Archive, although this was not addressed during the panel.) The opt-out list is not yet available but will eventually be posted here.
Other important details about the CCB process:
- In order to file a claim for copyright infringement with the CCB, the claimant must first register their work with the Copyright Office. You can file a claim with the CCB while registration is pending, but CCB officers cannot issue a final decision until you have a copyright certificate.
- There is a copyright claims statute of limitations of three years from the time the infringement occurs.
- You can’t bring a case against someone who resides outside the US unless they have sued you and you’re asserting a counterclaim.
- You can bring a claim against a company like YouTube, but only if you’ve served them with a takedown notice and they have not complied.
- The CCB cannot issue injunctions. An injunction is a special court order that prevents a person from engaging in or continuing certain acts. This is another potential downside to the process. One lawyer writes this “could be very frustrating in instances where there is clear, ongoing infringement that is very harmful to the copyright owner and/or to the value of or market for the copyright(s) at issue.”
- There is a smaller claims track for cases where total damages sought do not exceed $5,000. These claims may be decided by a single copyright officer and are even more streamlined.
- If a respondent fails to pay awarded damages, the claimant must go to federal court to get relief. (Unfortunately, this seems to defeat the purpose of having used the CCB!)
- Once a claim has been decided by the CCB, the parties will not be able to file the same claims against each other in federal court.
But wait, there’s more: you can bring a claim to the CCB seeking a declaration you have not infringed copyright. So the CCB doesn’t exist just to protect copyright owners; it’s also meant to protect those who might be unfairly or unreasonably accused of copyright infringement. This may be especially useful to those who have been targeted and even harmed by unjustified DMCA takedown notices.
Bottom line: Based on the information presented during the panel, the CCB looks well suited to straightforward cases without much complexity when damages are unlikely to exceed $30,000. Carson said the CCB might be a claimant’s first encounter with the legal system, and the office is prepared for that. “We’re going to bend over backwards to give you a chance to explain your side of the case.” The CCB expects to do more “hand holding” and be involved in a way that’s not typical of federal court. He said CCB officers want to make rulings based on the merits of cases and not because of “gotchas” or inadvertently missed deadlines. For a detailed explanation of the CCB process, visit their site.
Jane Friedman has spent her entire career working in the publishing industry, with a focus on business reporting and author education. Established in 2015, her newsletter The Bottom Line provides nuanced market intelligence to thousands of authors and industry professionals; in 2023, she was named Publishing Commentator of the Year by Digital Book World.
Jane’s expertise regularly features in major media outlets such as The New York Times, The Atlantic, NPR, The Today Show, Wired, The Guardian, Fox News, and BBC. Her book, The Business of Being a Writer, Second Edition (The University of Chicago Press), is used as a classroom text by many writing and publishing degree programs. She reaches thousands through speaking engagements and workshops at diverse venues worldwide, including NYU’s Advanced Publishing Institute, Frankfurt Book Fair, and numerous MFA programs.
