Fast And Furious: Copyright Office Proposal For New Expedited Registration

Tarter Krinsky & Drogin LLP
What is the CCB?

Congress passed the CASE Act (Copyright Alternative in Small-Claims Enforcement Act of 2020) in December of 2020, which included authorization for the Copyright Office to establish a three-member tribunal called the Copyright Claims Board (CCB). The CCB will evaluate copyright infringement “small” claims where the disputed amount is less than $30,000. These include claims of infringement, a declaration of noninfringement, and claims under 17 USC § 512(f) – where a person knowingly misrepresented that material or activity is infringing or that material or activity was removed from an online platform by mistake or misidentification. If both parties agree, the CCB will be able to issue injunctions, too. Bad faith conduct may result in an attorneys’ fees and costs award capped at $5000 ($2500 for unrepresented plaintiffs). The filing fee for a CCB proceeding has not been determined yet.

The CCB is available to existing registrants and there will be expedited examination available to applicants once the interim rule is in place. The statute of limitations is 3 years after a claim has accrued. But be aware: once the CCB forum is chosen, the same claim cannot be filed in federal court (unless the defendant refuses to participate, in which case, federal court is an option), and the claims can only be brought against defendants located in the US. However, non-residents are allowed to file claims. Reconsideration and appeal to the Registrar of Copyrights for abuse of discretion are built into the process but an appeal to a federal court is limited to fraud or misconduct, the CCB exceeded its authority, or the failure to pursue or respond to a claim resulted from excusable neglect. The CCB is expected to open its doors on December 27, 2021 unless the Registrar of Copyrights extends the date to June 25, 2022.

How will the expedited process work?

The Copyright Office published this notice of proposed rulemaking regarding expedited registration and comments are due by midnight ET on May 26, 2021. This would be an interim rule, enabling assessment of the process before final rulemaking.

The proposed rule would enable expedited review when an applicant:

  • Submits the completed application, deposit and fee to the Copyright Office
  • Decides whether to opt-in to the CCB process or opt-outs within the applicable time frame
  • Pays the $50 fee for CCB expedited review

If the Office decides not to issue the registration, the CCB claim is dismissed without prejudice. The CCB will publish final determinations, records and information. The final determinations are not precedential. If the latter is not published, then it is not subject to a Freedom of Information Act request.

How does the process differ from special handling?

This process differs from special handling requests in scope and cost. An applicant may file for special handling if one pays the $800 fee and represents that there is pending or prospective litigation, customs issues, or other deadlines mandated by contract or in the publishing context. The CCB fees for an expedited request are proposed to be $50 per application, and they are paid directly to the CCB, not through eCo -- the electronic registration system.

When will a decision issue on the expedited request?

Process wise, once an application is pending, the CCB request for expedited review must include the service request (SR) number issued by the Office to that pending application. Assuming the formalities are met, the Office should issue a registration decision within 10 days of the request. The Office has the discretion to ask the applicant for additional information or to refuse the request if it would be burdensome. The examination standards remain the same.

Who will benefit from the expedited registration process and the CCB?

The new expedited registration system is meant for small claims, those $30,000 and under. Photographers, authors, songwriters and other artists may use this system as infringement of their works online is rampant and the claims may fall within this threshold. The $50 fee for expedited review is reasonable (although the CCB filing fee is unknown right now, the range is between $100 and $402), and the process is designed to include document production, written interrogatories, and requests for admission. Even though defendants can opt-out, since federal courts have no limit on damages and the CCB’s limit is $30,000, with potential attorneys’ fees of $5000 in bad faith cases, there is an incentive to stay in rather than opt-out. Attorneys’ fees are also likely to be much less since the CCB process is streamlined as compared with that of federal court.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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