15 Things You Need to Know About the Copyright Office’s New Small Claims Court

This content has been archived. It may no longer be accurate or relevant.

From Copyright Alliance:

With the U.S. Copyright Office’s new small claims court—the Copyright Claims Board (CCB)—launching on June 16, we thought we’d pass along some of the most important information that copyright owners and users should know about this new tribunal.

1. The CCB can hear three types of claims.

The CCB can hear three types of claims by copyright owners and users:

• infringement claims;
• claims for declarations of non-infringement. This type of claim might be brought when a copyright owner has alleged that someone is infringing their work and either has threatened to take action to enforce their rights (such as in a cease-and-desist letter) or has sent a DMCA takedown notice. The alleged infringer can bring a claim before the CCB to request that the CCB issue a declaration stating that the activity they are engaged in does not infringe the copyright owner’s exclusive rights;
• claims under section 512(f) of the Copyright Act for misrepresentations in a DMCA notice or counternotice. Users who received a DMCA takedown notice from a copyright owner can challenge that notice if they believe the copyright owner knowingly misrepresented that the material or activity is infringing in the notice. Similarly, a copyright owner who sent a DMCA takedown notice and then received a counternotice from the user may challenge that counternotice if they believe the user knowingly misrepresented that material or activity was removed or disabled by mistake or misidentification.

These are the only types of claims that can be brought. Ownership disputes, termination claims, trademark claims, etc., cannot be heard by the CCB. Also, the CCB cannot hear any claim or counterclaim that has been finally decided by or is pending before a federal court—unless that court has granted a stay to permit that claim or counterclaim to proceed before the CCB.

2. The CCB cannot hear claims against certain parties (under certain circumstances).

The CCB cannot hear any claim or counterclaim by or against a federal or state governmental entity. The CCB also cannot hear any claim against someone who does not reside in the United States. However, the CCB can hear a counterclaim against a foreign resident when that foreign resident has first brought a CCB claim themselves. Lastly, the CCB cannot hear any claims against an online service provider (OSP) that is referring, linking, or storing alleged infringing material on behalf of a user (as those terms are defined in the DMCA, found in 17 USC 512(b)(c) and (d)) unless the OSP has been notified of the infringement through a properly submitted takedown notice under the DMCA but fails to expeditiously remove or disable access to the material identified in the notice.

3. Participation in the CCB is voluntary.

The U.S. Constitution requires that participation in the CCB be voluntary. Thus, the person being sued (referred to as the “respondent”) can “opt out” of the proceeding. A respondent has 60 days from the date notice is served on them to opt out of a proceeding. In special circumstances, the CCB may extend the 60-day period. The opt-out form can be found here. If the respondent opts out of the CCB proceeding, the proceeding is immediately terminated. (Although the person who brings the CCB claim (referred to as the “claimant”) is still free to bring their claim as a lawsuit in federal court.) The CCB process is also voluntary for claimants. A claimant is not required to use the CCB to decide their infringement, non-infringement, or section 512(f) misrepresentation case. Parties can use other alternatives, such as bringing their claim in federal court or before a mediator.

4. A party can bring or defend a case without the need to hire an attorney.

The CCB process is intended to be much simpler and more streamlined than federal court that it will be unnecessary for the parties to hire attorneys to represent them. A party can hire an attorney if they wish, but the use of an attorney is completely optional. Interestingly, at the time this blog was drafted, attorneys were being used by claimants in a little less than half of the infringement cases. If a party feels the need for legal representation, they may also retain law school clinic students that are supervised by a licensed attorney so long as the student-representative has the client’s written consent to represent the party and has completed: (i) their first year at an American Bar Association accredited law school; (ii) training in copyright law as determined by their supervising attorney; and (iii) a review of the CCB regulations and the Copyright Alternative in Small-Claims Enforcement (CASE) Act statutory text. The CCB will provide a directory on its website of law school clinics and pro bono legal services organizations that have expressed interest in providing pro bono law student representation before the CCB.

5. The damages that the CCB can award a prevailing party are capped.

In a copyright infringement case filed in federal court, a successful plaintiff may be awarded up to $150,000 in statutory damages per work infringed. In contrast, when an infringement claim, or counterclaim, is brought before the CCB a successful claimant or counterclaimant may be awarded up to $15,000 in statutory damages per work infringed—which is 10% of the maximum damages available in federal court. Also, the total amount of damages that can be awarded in each case before the CCB is limited to $30,000, as compared to federal court, which has no limit.

6. Statutory damages are available for copyrighted works that are not timely registered.

In infringement cases before a federal court, statutory damages can only be awarded where the copyright owner has timely registered their works. Under U.S. copyright law, a copyrighted work is “timely” registered if it is registered with the U.S. Copyright Office either before the infringement starts or within three months after first publication of the work, if the infringement began after the work was first published. But in infringement cases before the CCB, statutory damages are available regardless of whether the work was timely registered. Whether the work is timely registered will impact the upper cap on damages, as the cap is significant lower for works that are not timely registered. For works not timely registered, statutory damages are limited to $7,500 per copyrighted work infringed and a total of $15,000 for all works infringed in a case that were not timely registered. This means that in a case involving only infringement claims in which all the works at issue were not timely registered, the CCB can award a no more than $15,000 for the entire case, as compared to $30,000 where all the works were timely registered.

Link to the rest at Copyright Alliance