Following up on our initial report last year on the possible creation of a Copyright Claims Board, we can now confirm the creation of that Board. The Consolidated Appropriations Act signed into law by President Trump on December 27, 2020 incorporates the CASE Act, establishes this new Copyright Claims Board (CCB) within the Copyright Office. A summary of this new law and the Board's operations are explained below.
Purpose: In creating the CCB, Congress carried out a long-pending recommendation from the Copyright Office that copyright owners be given a streamlined, cost-efficient means of enforcing their rights without having to bring an action in federal court (which otherwise generally has exclusive jurisdiction over the copyright infringement claims).
Description of the CCB: The CCB will consist of three "Copyright Claims Officers" who will be appointed by the Librarian of Congress and will operate within the Copyright Office. The CCB will have jurisdiction over copyright infringement claims, claims seeking a declaration of noninfringement, certain claims arising under the notice and takedown provisions of the DMCA, and related defenses and counterclaims. Representation by counsel is not required to bring a case before the CCB and the amount of damages that the CCB can award in an infringement proceeding is capped at $30,000. Attorneys' fees (up to $5,000) may be awarded upon a showing of bad faith conduct (with higher awards in "extraordinary" circumstances. The CASE Act also authorizes the Copyright Office to adopt regulations allowing a single Copyright Claims Officer to consider claims that do not exceed $5,000.
Opt-Out: Recourse to the CCB is voluntary and parties against whom an action is brought before the CCB have 60 days to "opt out" and thereby force the claimant to pursue relief in federal court.
CCB Decisions: The CCB is directed to apply the law of the federal jurisdiction in which the action could have been brought and to resolve conflict of laws issues based on the jurisdiction determined to have the most significant ties to the subject matter of the claim. CCB decisions may not be relied on as precedent in subsequent cases before either the CCB itself or federal courts. The CCB has authority to address copyright "trolls" who repeatedly file frivolous or harassing claims by barring such claimants from bringing claims for 12 months.
Appellate Review: Parties seeking to challenge a CCB decision may first seek reconsideration from the CCB and, if denied, may request that the Register of Copyrights review the decision for abuse of discretion. Under limited circumstances, such as where the CCB's determination was the result of fraud or other misconduct, or the CCB exceeded its authority, an order be sought from a federal district court vacating or modifying the CCB's decision.
Implications/Criticism: Proponents of the legislation include small copyright owners who would benefit from the reduced expense of pursuing their rights before the CCB rather than federal court, although the "opt-out" provision may undercut that benefit or deter recourse to the CCB. Critics, including certain consumer groups, argue that the respondents in cases brought before the CCB are denied certain due process rights, such as the right to a jury trial.
Effective Date: The Copyright Office is given one year (with a possible extension of six months for "good cause") to implement the CASE Act and for the CCB to begin operations.
Originally Published by Mintz, January 2021
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