In 2020, the Copyright Claims Board (“CCB”) was “established as an alternative and voluntary forum for parties seeking to resolve certain copyright-related disputes that have a total monetary value of $30,000 or less.” See: https://ccb.gov/about/. The first CCB claims were filed in June 2022.
According to the CCB Handbook, “CCB proceedings are designed to be clearly understood and usable by anyone, even without legal training. You are permitted to have a lawyer, but individuals and businesses can represent themselves.” See: https://www.ccb.gov/handbook/. Prior to creating the CCB, the only forum available to resolve Copyright Act claims was via federal court, which involves much more time and expense.
The CCB handles three types of copyright-related claims and cannot address any other claims than these:
- infringement claims;
- a declaration for noninfringement, that is, that one’s activity is not infringing another person’s work; and
- misrepresentation claims related to a DMCA takedown notice or counter-notice to an online service provider under section 512 of the Copyright Act.
As with federal court copyright infringement litigation, if you choose to bring a claim before the CCB, you will need a copyright registration in-hand for the work at issue. Then, using instructions and forms from the CCB, you construct and draft the claim, certify that the facts in your claim are true, and pay an initial $40 filing fee. If the proceeding enters the active phase, a second filing fee of $60 will be due.
However, the proceeding only enters the “active phase” if the person you bring the claim against agrees to participate in the CCB process. That’s right, you can bring a CCB claim against someone infringing your work, and that alleged infringer can simply say “no” to the CCB process. If that happens, the claim will be dismissed. Then what? You will have to sue in federal court as in the past. (As a potential respondent to a CCB claim, there may be strategic reasons to keep the claim at the CCB, but there may also be a strategic advantage to opt-out of the CCB process and force the claimant to sue you in federal court.)
To see how CCB claims have been trending since the claim process was started a little over one year ago, we reviewed the CCB case docket system, here: https://dockets.ccb.gov/search/cases.
Not surprisingly, there are several high-volume filers, including stock photo companies and companies responsible for pursuing infringement claims against bars and restaurants who show pay-per-view events without proper licensing. There are also many claims brought by individuals on a pro se basis, meaning that the individual copyright owner is bringing the claim themselves without the aid of an attorney. While this is possible under the CCB, we noticed a large percentage of pro se claims are being dismissed due to lack of compliance with the CCB rules. Noncompliance could be something technical like failing to have a copyright registration before bringing the claim, failing to respond to amendment orders from the CCB, and bringing what are more likely trademark infringement claims than copyright infringement. Other noncompliance issues can be substantive. For example, if the claim lacks sufficient details supporting the elements of copyright infringement (i.e. access to the work by the accused infringer, substantial similarity between the works, etc.), then the CCB will ask for an amendment to the claim.
Here is one example of the CCB ordering a claimant to amend their claim. As the claimant failed to amend the claim in the time provided, the claim was dismissed without prejudice.
As the CCB is a new creation, it is evolving. Today, August 28, 2023, new rules will go into effect which allow a respondent to bring an “agreement based counterclaim” against the claimant. For example, a claimant might sue a business for copyright infringement based on the business using the claimant’s work in an advertising campaign. That business may defend against the claim by arguing that the business had an agreement with the claimant to use the work. While that fact may be a good defense to the claim, the business may also want to recover its own damages from the claimant for bringing the claim. In order to do that, the business would need a method to “counterclaim” against the copyright owner. These new rules allow for that and also address the related discovery process. See: https://www.federalregister.gov/documents/2023/07/27/2023-15940/copyright-claims-board-agreement-based-counterclaims.
The CCB can be a great way to pursue a copyright infringement claim in a faster and less expensive manner than federal court litigation. However, there are risks involved in “going it alone” without an attorney, including missing important filing requirements and failing to support legal elements within the claim.
If you are considering bringing a copyright infringement claim at the CCB, or, if you have been served with a CCB claim, we encourage you to reach out and discuss the issue with our team. We can review the matter and provide insight to give you a strategic advantage.
