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Congress establishes new tribunal to adjudicate small copyright claims

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The CCB is empowered to decide claims of copyright infringement, requests for declarations of noninfringement, and assertions of misrepresentation of a claimed infringement.

Congress has approved a new landmark copyright law that will directly impact the ability of copyright holders to protect their intellectual property.  The “Copyright Alternative in Small-Claims Enforcement Act” – the CASE Act – creates an alternative way for copyright holders to pursue infringement claims seeking $30,000 or less. The law has been praised by representatives of independent artists and photographers as a means to help them protect their work when they lack the time and resources to litigate in federal court. Others criticize the law as yet another layer of bureaucracy that will impede the flow of information, particularly online.

The CASE Act creates a tribunal within the U.S. Copyright Office called the Copyright Claims Board (“CCB”). The CCB is empowered to decide claims of copyright infringement, requests for declarations of noninfringement, and assertions of misrepresentation of a claimed infringement.

A proceeding in the CCB involves the filing of a claim, defenses, and some discovery, which is limited to document production, written interrogatories, and written requests for admission. The parties may also elicit testimony from witnesses at hearings, which would take place virtually. The statute also permits the CCB to facilitate settlement discussions at a party’s request.

The CCB has the authority to award money damages. Monetary relief is limited to $30,000 for all claims brought under one proceeding. Generally, each party bears his or her own attorney’s fees and costs, unless the CCB determines a party pursued a claim, counterclaim, or defense in bad faith. In that situation, the CCB may award up to $5,000 in fees.

This tribunal is voluntary, so it is up to the claimant to determine if this is the best path to assert a claim. Importantly, this tribunal is also voluntary for the accused infringer. Once a claim is filed, the claimant must send the respondent a notice that prominently states the rights of the respondent and the implications of opting in or out of the CCB process. The respondent has 60 days after receiving notice to opt out of the CCB proceeding. A respondent who fails to opt out during that time loses the opportunity to defend the claim and bring counterclaims in federal court. If the respondent then fails to participate in the CCB proceedings, the CCB could issue a default determination against the respondent. If the respondent timely opts out, then the claim will be dismissed, leaving the parties to resolve the issues in federal court.

Parties to the proceedings are permitted, but not required, to be represented by an attorney or a law student working pro bono.

At TLo, we are ready to assist you through this new CCB process. Please reach out with any questions.