Historically, the expense of litigating a copyright dispute has been a major roadblock to creators enforcing their rights in copyrighted material. However, the launch of the new Copyright Claims Board (“CCB”), colloquially referred to as a “copyright small claims court,” aims to address that issue– and it just started taking cases as of June 17, 2022.
So what is the copyright claims board (the “CCB”)? And how might it help you? Read on.
What is the new Copyright Claims Board?
Established by the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020, the Copyright Claims Board (CCB) is a tribunal located in the Copyright Office and available as a voluntary alternative to federal court. The CCB is a ” three-member tribunal with extensive expertise in copyright matters that provides a streamlined alternative to federal court to resolve copyright disputes involving claims up to $30,000.” That essentially means that the CCB is made up of three “judges” that are experienced in the nuances of copyright law who will review copyright lawsuits claiming up to $30,000 in damages.
For claims under $5000, claimants can request an expedited “small claims” procedure with one judge.
CCB proceedings will be less expensive and much faster than lawsuits brought in federal court. CCB proceedings only require limited discovery (Parties exchanging over documents, files, other background information) as opposed to the more complicated and costly process formal discovery. Participation in the CCB is also voluntary, and parties can “opt out” of the CCB and back into federal court if they prefer.
Some of the terms used by the CCB:
“Claimant” – The person making a claim is called a “claimant.” You might think of them as the “plaintiff.”
“Remedy” or “Remedies” – The result a claimant is asking for. Typically, it could include monetary damages, an agreement to stop the infringing activities, and/or attorneys’ fees.
“Respondent” – The person responding to the claim is called a “respondent”. BUT: if the respondent also makes its own claim against the original claimant, the respondent may be called a “counterclaimant”. Only specific types of counterclaims can be made in front of the CCB.
What can I take before the Copyright Claims Board?
Claims for Copyright Infringement. Copyright infringement occurs when a copyrighted work is reproduced, distributed, publicly performed or displayed, or made into a derivative work (such as a translation of a book or its adaptation into a movie) without the permission from the copyright holder.
Claims seeking a declaration of noninfringement. Similar to a “Declaratory Judgment Action” in traditional legal proceedings, a party accused of infringement (for example, someone who has received a ”cease and desist letter”) can file a claim seeking a ruling from the CCB that its actions do not actually infringe a copyright. This could be useful in scenarios where a party is worried about starting or continuing a project under the threat of litigation and wants clarity about the validity of the copyright owner’s rights/ the application of an exception (such as a defense like “Fair Use”).
Claims regarding misrepresentations or omissions when filing a “takedown” notice / counter-notice under the DMCA. The Digital Millennium Copyright Act (DMCA) establishes a “notice and takedown” system for removing infringing content from the internet. Under this system, a copyright owner can send a “takedown” notice to an online service provider (such as a content-sharing website) describing material that someone has posted through the online service without the copyright owner’s permission. To avoid potential liability, online service providers follow specified procedures when they receive these notices, as well as when they receive counter-notices seeking the re-posting of the allegedly infringing material. The DMCA also provides that senders of either a notice or a counter-notice may be liable for damages if they knowingly make misrepresentations.
What are the limits on the claims I Can make in front of the Copyright Claims Board?
Claimants can bring copyright actions seeking no greater than $30,000 in total damages. A party who brings a successful copyright infringement claim can choose to recover either statutory damages (in specific dollar ranges set by the law), or actual damages and the infringer’s profits (as calculated based on the factual evidence).
Compare this to federal court, where (i) actual damages are not capped and (ii) statutory damages can reach $150,000 for each work if the infringement was knowing or willful. Because of this limitation, in most cases, the amounts awarded at the CCB will be lower than those available in federal court.
To prevent abuse, the CCB also limits the the number of CCB claims a party may file over a period of one year.
Additionally, bringing a CCB claim in bad faith (acting in a dishonest, intentionally misleading or abusive manner) may result in the bad faith party being responsible for the other party’s costs and attorneys’ fees. These fees can go up to $5,000, (*limited to $2,500 for parties representing themselves). In “extraordinary circumstances,” repeat offenders may incur higher attorneys’ fees or costs.
What are the downsides to the new Copyright Claims Board?
- The lower cap on damages is a definite downside, especially for claimants looking for the “big money” damages we typically see in cases picked up by the press (“Blurred Lines,” for example).
- Limited review of CCB decisions means that the decision is likely final, unless the party asking for the reconsideration/ appeal of the decision can show a material error of law or fact.
- Participation in the CCB is totally voluntary, and parties can “opt out” at will. This might mean that large corporations with unlimited legal spend may be able to dodge smaller claims by “opting out” of the CCB, knowing that the smaller-pocketed claimants won’t be able to litigate in federal court due to the expense.
If you have a copyright claim you’d like to take before the Copyright Claims Board, please feel free to contact us. We’re eager to get in front of this new board with this entirely new administrative process. Emails us today and let us help defend your hard work!