Where Should I File My Copyright Claim?
Copyright Updates

If you have a claim under copyright law, you may want to consider filing it with the Copyright Claims Board rather than in federal court.

The Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020 is a recent federal law that established the Copyright Claims Board (“CCB”). The CCB is a voluntary arbitration procedure within the Copyright Office that offers copyright owners an alternative to bringing a claim in federal court. 

Before the establishment of the CCB, copyright owners would have to file their claims in a federal court, which is not only complicated and time consuming, but quite expensive, making relatively smaller infringements not worth litigating.

With the CCB's launch this spring, copyright owners now have a cheaper and faster alternative to federal court. They can now adjudicate claims that would otherwise be cost prohibitive . This process was designed to be easily understood by anyone so that use of an attorney is not necessary. The process also limits the kinds and amount of discovery, allowing for all paperwork to be filed electronically and conducting all CCB proceedings remotely through video conferencing. 

The CCB is a tribunal within the Copyright Office. It is comprised of three officers, all of whom are impartial experts of copyright law, with jurisdiction limited to certain kinds of copyright claims, including:

  1. Claims of infringement of a copyright; 
  2. Claims seeking a declaratory judgment that specific activities do not infringe copyright (e.g., a party may seek this after they have received a cease-and-desist letter);
  3. Claims of "misrepresentation" as a response to unsubstantiated takedown notices sent under the Digital Millennium Copyright Act, commonly referred to as the "DMCA."

Under the DMCA, copyright owners can send takedown notices to online service providers if a user has posted copyrighted material without the owner's permission. However, the DMCA also provides that senders of these takedown notices may be liable for damages if they knowingly make misrepresentations; thus, the CCB can determine whether a misrepresentation was made.

The key differences between bringing a claim before the CCB or federal court are:

  1. Voluntary process: Participation in a CCB proceeding is voluntary. If you have a claim you want to assert, you are not required to bring it to the CCB if you would prefer to go to federal court. If a claim is brought against you, you have the option of opting out of the CCB proceeding, which would require the claimant to bring their claim to federal court;
  2. Damages: A party cannot bring a claim seeking more than $30,000 in “actual damages” (money damages that are awarded based on the actual monetary loss suffered by the claimant). There is a limit of $15,000 in “statutory” damages (money damages that are awarded to compensate for infringement without the claimant needing to prove actual monetary loss, based on amounts set forth in the statute) per each infringed work, with a cap of $30,000. However, if the claimant has not registered their work within three months of publication (or before the infringement occurred), then they can only seek up to $7,500 in statutory damages per each infringed work, with a cap at $15,000 per proceeding.
  3. Attorneys & Fees: The only time when the CCB can award attorney's fees is if it finds that a party has operated in bad faith or acted in a dishonest, intentionally misleading, or abusive way. An award of attorney's fees by the CCB is capped at either $5,000, if the party is represented by an attorney, and $2,500 if the party is not. That said, though the CCB process is simpler and has fewer impediments and expenses, a claimant may still need legal assistance to make or defend a claim; therefore, the CASE Act allows for law students to represent claimants before the CCB.
  4. Registration: In order to bring a claim to the CCB, you must register your work with the Copyright Office. However, at unlike federal court, the registration can still be pending at the time that you file your claim with the CCB. This means that you can file an application for registration at the same time that you file a claim with the CCB, as long you provide the application's service request number when you file your claim.

For more information on the CCB, and how to bring a claim, please visit www.ccb.gov


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