The Copyright Claims Board (CCB) is a tribunal within the Copyright Office that will hear copyright disputes involving claims up to $30,000. Created by the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020, the CCB was envisioned as an alternative to federal court, and makes copyright proceedings accessible to parties whether they are represented by counsel or pro se. Procedurally, much of the proceedings will be conducted online, resulting in lower costs and quicker resolution than lawsuits in federal court. The CCB will only address three types of claims: copyright infringement, declarations of non-infringement and claims of misrepresentation in notices sent under the Digital Millennium Copyright Act (DMCA). Any counterclaims are limited to the same three types of claims, and must arise out of the same transaction or occurrence and involve the same copyrighted work as the original claim.
CCB proceedings will be heard by a panel of three experts in copyright law, called Officers. Once the CCB makes a determination, the parties will not be able to file the same claims against each other in federal court, and there are limited opportunities for appeal or review of a CCB determination. The decisions of the CCB will not be precedential, however. That is, they won’t have any authority on how the CCB will decide a future case or how a federal court will decide any future case.
In addition to the above qualifications, a work must have been registered with the Copyright Office or be the subject of a pending application for registration in order for a claimant to gain access to the CCB. This is different than the requirement to bring a claim in federal court–which requires that the copyright registration has been issued prior to bringing a claim for copyright infringement of the subject work. The rules concerning statutory damages are nearly the same as for federal court, except the CCB will not consider whether the infringement was willful when it determines damages and in all cases where the work was registered within certain time constraints, statutory damages are capped at $15,000 per work infringed. A claimant seeking damages less than $5,000 has to option to elect a “smaller claims” track, which is a version of the proceedings that is even more streamlined than the regular CCB proceedings.
There are some drawbacks to the CCB from a claimant’s perspective. The CCB cannot order the respondent to stop engaging in certain activities unless the respondent informs the CCB that they will agree to cease or modify certain activities upon a finding of infringement. This means that a party who is concerned with injunctive relief would be better suited to bring an action in federal court than initiate a CCB proceeding. Another potential drawback is that participation in a CCB proceeding is voluntary; a claimant may always choose to initiate a suit in federal court instead if they prefer, but critically, a respondent can opt out of the CCB proceeding, which would mean that a claimant would have no alternative than to file in federal court to resolve the dispute.
There are some safeguards intended to deter abuse of the CCB. If a respondent fails to opt-out within the time period or a party otherwise fails to participate in an ongoing CCB proceeding, the panel can issue a default determination against them. If the parties reach a settlement, they can terminate CCB proceedings by asking the CCB for a dismissal. There will be a limit on the number of claims that any party can file in a single year. Bringing a claim in bad faith can result in being ordered to pay the other party’s costs and attorneys’ fees. The CCB may ban parties who repeatedly act in bad faith.
