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116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-252
======================================================================
COPYRIGHT ALTERNATIVE IN SMALL-CLAIMS ENFORCEMENT ACT OF 2019
_______
October 22, 2019.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 2426]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2426) to amend title 17, United States Code, to
establish an alternative dispute resolution program for
copyright small claims, and for other purposes, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 17
Background and Need for the Legislation.......................... 18
Hearings......................................................... 26
Committee Consideration.......................................... 26
Committee Votes.................................................. 26
Committee Oversight Findings..................................... 26
New Budget Authority and Tax Expenditures........................ 26
Congressional Budget Office Cost Estimate........................ 27
Duplication of Federal Programs.................................. 28
Performance Goals and Objectives................................. 28
Advisory on Earmarks............................................. 28
Section-by-Section Analysis...................................... 28
Changes in Existing Law Made by the Bill, as Reported............ 34
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Copyright Alternative in Small-Claims
Enforcement Act of 2019'' or the ``CASE Act of 2019''.
SEC. 2. COPYRIGHT SMALL CLAIMS.
(a) In General.--Title 17, United States Code, is amended by adding
at the end the following:
``CHAPTER 15--COPYRIGHT SMALL CLAIMS
``Sec.
``1501. Definitions.
``1502. Copyright Claims Board.
``1503. Authority and duties of the Copyright Claims Board.
``1504. Nature of proceedings.
``1505. Registration requirement.
``1506. Conduct of proceedings.
``1507. Effect of proceeding.
``1508. Review and confirmation by district court.
``1509. Relationship to other district court actions.
``1510. Implementation by Copyright Office.
``1511. Funding.
``Sec. 1501. Definitions
``In this chapter--
``(1) the term `party'--
``(A) means a party; and
``(B) includes the attorney of a party, as
applicable;
``(2) the term `claimant' means the real party in interest
that commences a proceeding before the Copyright Claims Board
under section 1506(e), pursuant to a permissible claim of
infringement brought under section 1504(c)(1), noninfringement
brought under section 1504(c)(2), or misrepresentation brought
under section 1504(c)(3);
``(3) the term `counterclaimant' means a respondent in a
proceeding before the Copyright Claims Board that--
``(A) asserts a permissible counterclaim under
section 1504(c)(4) against the claimant in the
proceeding; and
``(B) is the real party in interest with respect to
the counterclaim described in subparagraph (A); and
``(4) the term `respondent' means any person against whom a
proceeding is brought before the Copyright Claims Board under
section 1506(e), pursuant to a permissible claim of
infringement brought under section 1504(c)(1), noninfringement
brought under section 1504(c)(2), or misrepresentation brought
under section 1504(c)(3).
``Sec. 1502. Copyright Claims Board
``(a) In General.--There is established in the Copyright Office the
Copyright Claims Board, which shall serve as an alternative forum in
which parties may voluntarily seek to resolve certain copyright claims
regarding any category of copyrighted work, as provided in this
chapter.
``(b) Officers and Staff.--
``(1) Copyright claims officers.--The Register of Copyrights
shall recommend 3 full-time Copyright Claims Officers to serve
on the Copyright Claims Board in accordance with paragraph
(3)(A). The Officers shall be appointed by the Librarian of
Congress to such positions after consultation with the Register
of Copyrights.
``(2) Copyright claims attorneys.--The Register of Copyrights
shall hire not fewer than 2 full-time Copyright Claims
Attorneys to assist in the administration of the Copyright
Claims Board.
``(3) Qualifications.--
``(A) Copyright claims officers.--
``(i) In general.--Each Copyright Claims
Officer shall be an attorney who has not fewer
than 7 years of legal experience.
``(ii) Experience.--Two of the Copyright
Claims Officers shall have--
``(I) substantial experience in the
evaluation, litigation, or adjudication
of copyright infringement claims; and
``(II) between those 2 Officers, have
represented or presided over a
diversity of copyright interests,
including those of both owners and
users of copyrighted works.
``(iii) Alternative dispute resolution.--The
Copyright Claims Officer not described in
clause (ii) shall have substantial familiarity
with copyright law and experience in the field
of alternative dispute resolution, including
the resolution of litigation matters through
that method of resolution.
``(B) Copyright claims attorneys.--Each Copyright
Claims Attorney shall be an attorney who has not fewer
than 3 years of substantial experience in copyright
law.
``(4) Compensation.--
``(A) Copyright claims officers.--
``(i) Definition.--In this subparagraph, the
term `senior level employee of the Federal
Government' means an employee, other than an
employee in the Senior Executive Service, the
position of whom is classified above GS-15 of
the General Schedule.
``(ii) Pay range.--Each Copyright Claims
Officer shall be compensated at a rate of pay
that is not less than the minimum, and not more
than the maximum, rate of pay payable for
senior level employees of the Federal
Government, including locality pay, as
applicable.
``(B) Copyright claims attorneys.--Each Copyright
Claims Attorney shall be compensated at a rate of pay
that is not more than the maximum rate of pay payable
for level 10 of GS-15 of the General Schedule,
including locality pay, as applicable.
``(5) Terms.--
``(A) In general.--Subject to subparagraph (B), a
Copyright Claims Officer shall serve for a renewable
term of 6 years.
``(B) Initial terms.--The terms for the first
Copyright Claims Officers appointed under this chapter
shall be as follows:
``(i) The first such Copyright Claims Officer
appointed shall be appointed for a term of 4
years.
``(ii) The second Copyright Claims Officer
appointed shall be appointed for a term of 5
years.
``(iii) The third Copyright Claims Officer
appointed shall be appointed for a term of 6
years.
``(6) Vacancies and incapacity.--
``(A) Vacancy.--
``(i) In general.--If a vacancy occurs in the
position of a Copyright Claims Officer, the
Librarian of Congress shall, upon the
recommendation of and in consultation with the
Register of Copyrights, act expeditiously to
appoint a Copyright Claims Officer for that
position.
``(ii) Vacancy before expiration.--An
individual appointed to fill a vacancy
occurring before the expiration of the term for
which the predecessor of the individual was
appointed shall be appointed to serve a 6-year
term.
``(B) Incapacity.--If a Copyright Claims Officer is
temporarily unable to perform the duties of the
Officer, the Librarian of Congress shall, upon
recommendation of and in consultation with the Register
of Copyrights, act expeditiously to appoint an interim
Copyright Claims Officer to perform such duties during
the period of such incapacity.
``(7) Sanction or removal.--Subject to section 1503(b), the
Librarian of Congress may sanction or remove a Copyright Claims
Officer.
``(8) Administrative support.--The Register of Copyrights
shall provide the Copyright Claims Officers and Copyright
Claims Attorneys with necessary administrative support,
including technological facilities, to carry out the duties of
the Officers and Attorneys under this chapter.
``(9) Location of copyright claims board.--The offices and
facilities of the Copyright Claims Officers and Copyright
Claims Attorneys shall be located at the Copyright Office.
``Sec. 1503. Authority and duties of the Copyright Claims Board
``(a) Functions.--
``(1) Copyright claims officers.--Subject to the provisions
of this chapter and applicable regulations, the functions of
the Copyright Claims Officers shall be as follows:
``(A) To render determinations on the civil copyright
claims, counterclaims, and defenses that may be brought
before the Officers under this chapter.
``(B) To ensure that claims, counterclaims, and
defenses are properly asserted and otherwise
appropriate for resolution by the Copyright Claims
Board.
``(C) To manage the proceedings before the Officers
and render rulings pertaining to the consideration of
claims, counterclaims, and defenses, including with
respect to scheduling, discovery, evidentiary, and
other matters.
``(D) To request, from participants and
nonparticipants in a proceeding, the production of
information and documents relevant to the resolution of
a claim, counterclaim, or defense.
``(E) To conduct hearings and conferences.
``(F) To facilitate the settlement by the parties of
claims and counterclaims.
``(G)(i) To award monetary relief; and
``(ii) to include in the determinations of the
Officers a requirement that certain activities under
section 1504(e)(2) cease or be mitigated, if the party
to undertake the applicable measure has so agreed.
``(H) To provide information to the public concerning
the procedures and requirements of the Copyright Claims
Board.
``(I) To maintain records of the proceedings before
the Officers, certify official records of such
proceedings as needed, and, as provided in section
1506(t), make the records in such proceedings available
to the public.
``(J) To carry out such other duties as are set forth
in this chapter.
``(K) When not engaged in performing the duties of
the Officers set forth in this chapter, to perform such
other duties as may be assigned by the Register of
Copyrights.
``(2) Copyright claims attorneys.--Subject to the provisions
of this chapter and applicable regulations, the functions of
the Copyright Claims Attorneys shall be as follows:
``(A) To provide assistance to the Copyright Claims
Officers in the administration of the duties of those
Officers under this chapter.
``(B) To provide assistance to members of the public
with respect to the procedures and requirements of the
Copyright Claims Board.
``(C) To provide information to potential claimants
contemplating bringing a permissible action before the
Copyright Claims Board about obtaining a subpoena under
section 512(h) for the sole purpose of identifying a
potential respondent in such an action.
``(D) When not engaged in performing the duties of
the Attorneys set forth in this chapter, to perform
such other duties as may be assigned by the Register of
Copyrights.
``(b) Independence in Determinations.--
``(1) In general.--The Copyright Claims Board shall render
the determinations of the Board in individual proceedings
independently on the basis of the records in the proceedings
before it and in accordance with the provisions of this title,
judicial precedent, and applicable regulations of the Register
of Copyrights.
``(2) Consultation.--The Copyright Claims Officers and
Copyright Claims Attorneys--
``(A) may consult with the Register of Copyrights on
general issues of law; and
``(B) subject to section 1506(x), may not consult
with the Register of Copyrights with respect to--
``(i) the facts of any particular matter
pending before the Officers and the Attorneys;
or
``(ii) the application of law to the facts
described in clause (i).
``(3) Performance appraisals.--Notwithstanding any other
provision of law or any regulation or policy of the Library of
Congress or Register of Copyrights, any performance appraisal
of a Copyright Claims Officer or Copyright Claims Attorney may
not consider the substantive result of any individual
determination reached by the Copyright Claims Board as a basis
for appraisal except to the extent that result may relate to
any actual or alleged violation of an ethical standard of
conduct.
``(c) Direction by Register.--Subject to subsection (b), the
Copyright Claims Officers and Copyright Claims Attorneys shall, in the
administration of their duties, be under the general direction of the
Register of Copyrights.
``(d) Inconsistent Duties Barred.--A Copyright Claims Officer or
Copyright Claims Attorney may not undertake any duty that conflicts
with the duties of the Officer or Attorney in connection with the
Copyright Claims Board.
``(e) Recusal.--A Copyright Claims Officer or Copyright Claims
Attorney shall recuse himself or herself from participation in any
proceeding with respect to which the Copyright Claims Officer or
Copyright Claims Attorney, as the case may be, has reason to believe
that he or she has a conflict of interest.
``(f) Ex Parte Communications.--Except as may otherwise be permitted
by applicable law, any party to a proceeding before the Copyright
Claims Board shall refrain from ex parte communications with the
Copyright Claims Officers and the Register of Copyrights concerning the
substance of any active or pending proceeding before the Copyright
Claims Board.
``(g) Judicial Review.--Actions of the Copyright Claims Officers and
Register of Copyrights under this chapter in connection with the
rendering of any determination are subject to judicial review as
provided under section 1508(c) and not under chapter 7 of title 5.
``Sec. 1504. Nature of proceedings
``(a) Voluntary Participation.--Participation in a Copyright Claims
Board proceeding shall be on a voluntary basis in accordance with this
chapter and the right of any party to instead pursue a claim,
counterclaim, or defense in a district court of the United States or
any other court, and to seek a jury trial, shall be preserved. The
rights, remedies, and limitations under this section may not be waived
except in accordance with this chapter.
``(b) Statute of Limitations.--
``(1) In general.--A proceeding may not be maintained before
the Copyright Claims Board unless the proceeding is commenced,
in accordance with section 1506(e), before the Copyright Claims
Board within 3 years after the claim accrued.
``(2) Tolling.--Subject to section 1507(a), a proceeding
commenced before the Copyright Claims Board shall toll the time
permitted under section 507(b) for the commencement of an
action on the same claim in a district court of the United
States during the period in which the proceeding is pending.
``(c) Permissible Claims, Counterclaims, and Defenses.--The Copyright
Claims Board may render determinations with respect to the following
claims, counterclaims, and defenses, subject to such further
limitations and requirements, including with respect to particular
classes of works, as may be set forth in regulations established by the
Register of Copyrights:
``(1) A claim for infringement of an exclusive right in a
copyrighted work provided under section 106 by the legal or
beneficial owner of the exclusive right at the time of the
infringement for which the claimant seeks damages, if any,
within the limitations set forth in subsection (e)(1).
``(2) A claim for a declaration of noninfringement of an
exclusive right in a copyrighted work provided under section
106, consistent with section 2201 of title 28.
``(3) A claim under section 512(f) for misrepresentation in
connection with a notification of claimed infringement or a
counter notification seeking to replace removed or disabled
material, except that any remedies relating to such a claim in
a proceeding before the Copyright Claims Board shall be limited
to those available under this chapter.
``(4) A counterclaim that is asserted solely against the
claimant in a proceeding--
``(A) pursuant to which the counterclaimant seeks
damages, if any, within the limitations set forth in
subsection (e)(1); and
``(B) that--
``(i) arises under section 106 or section
512(f) and out of the same transaction or
occurrence that is the subject of a claim of
infringement brought under paragraph (1), a
claim of noninfringement brought under
paragraph (2), or a claim of misrepresentation
brought under paragraph (3); or
``(ii) arises under an agreement pertaining
to the same transaction or occurrence that is
the subject of a claim of infringement brought
under paragraph (1), if the agreement could
affect the relief awarded to the claimant.
``(5) A legal or equitable defense under this title or
otherwise available under law, in response to a claim or
counterclaim asserted under this subsection.
``(6) A single claim or multiple claims permitted under
paragraph (1), (2), or (3) by one or more claimants against one
or more respondents, but only if all claims asserted in any one
proceeding arise out of the same allegedly infringing activity
or continuous course of infringing activities and do not, in
the aggregate, result in the recovery of such claim or claims
for damages that exceed the limitations under subsection
(e)(1).
``(d) Excluded Claims.--The following claims and counterclaims are
not subject to determination by the Copyright Claims Board:
``(1) A claim or counterclaim that is not a permissible claim
or counterclaim under subsection (c).
``(2) A claim or counterclaim that has been finally
adjudicated by a court of competent jurisdiction or that is
pending before a court of competent jurisdiction, unless that
court has granted a stay to permit that claim or counterclaim
to proceed before the Copyright Claims Board.
``(3) A claim or counterclaim by or against a Federal or
State governmental entity.
``(4) A claim or counterclaim asserted against a person or
entity residing outside of the United States, except in a case
in which the person or entity initiated the proceeding before
the Copyright Claims Board and is subject to counterclaims
under this chapter.
``(e) Permissible Remedies.--
``(1) Monetary recovery.--
``(A) Actual damages, profits, and statutory damages
for infringement.--With respect to a claim or
counterclaim for infringement of copyright, and subject
to the limitation on total monetary recovery under
subparagraph (D), the Copyright Claims Board may award
either of the following:
``(i) Actual damages and profits determined
in accordance with section 504(b), with that
award taking into consideration, in appropriate
cases, whether the infringing party has agreed
to cease or mitigate the infringing activity
under paragraph (2).
``(ii) Statutory damages, which shall be
determined in accordance with section 504(c),
subject to the following conditions:
``(I) With respect to works timely
registered under section 412, so that
the works are eligible for an award of
statutory damages in accordance with
that section, the statutory damages may
not exceed $15,000 for each work
infringed.
``(II) With respect to works not
timely registered under section 412,
but eligible for an award of statutory
damages under this section, statutory
damages may not exceed $7,500 per work
infringed, or a total of $15,000 in any
1 proceeding.
``(III) The Copyright Claims Board
may not make any finding that, or
consider whether, the infringement was
committed willfully in making an award
of statutory damages.
``(IV) The Copyright Claims Board may
consider, as an additional factor in
awarding statutory damages, whether the
infringer has agreed to cease or
mitigate the infringing activity under
paragraph (2).
``(B) Election of damages.--With respect to a claim
or counterclaim of infringement, at any time before
final determination is rendered, and notwithstanding
the schedule established by the Copyright Claims Board
under section 1506(k), the claimant or counterclaimant
shall elect--
``(i) to recover actual damages and profits
or statutory damages under subparagraph (A); or
``(ii) not to recover damages.
``(C) Damages for other claims.--Damages for claims
and counterclaims other than infringement claims, such
as those brought under section 512(f), shall be subject
to the limitation under subparagraph (D).
``(D) Limitation on total monetary recovery.--
Notwithstanding any other provision of law, a party
that pursues any one or more claims or counterclaims in
any single proceeding before the Copyright Claims Board
may not seek or recover in that proceeding a total
monetary recovery that exceeds the sum of $30,000,
exclusive of any attorneys' fees and costs that may be
awarded under section 1506(y)(2).
``(2) Agreement to cease certain activity.--In a
determination of the Copyright Claims Board, the Board shall
include a requirement to cease conduct if, in the proceeding
relating to the determination--
``(A) a party agrees--
``(i) to cease activity that is found to be
infringing, including removing or disabling
access to, or destroying, infringing materials;
or
``(ii) to cease sending a takedown notice or
counter notice under section 512 to the other
party regarding the conduct at issue before the
Board if that notice or counter notice was
found to be a knowing material
misrepresentation under section 512(f); and
``(B) the agreement described in subparagraph (A) is
reflected in the record for the proceeding.
``(3) Attorneys' fees and costs.--Notwithstanding any other
provision of law, except in the case of bad faith conduct as
provided in section 1506(y)(2), the parties to proceedings
before the Copyright Claims Board shall bear their own
attorneys' fees and costs.
``(f) Joint and Several Liability.--Parties to a proceeding before
the Copyright Claims Board may be found jointly and severally liable if
all such parties and relevant claims or counterclaims arise from the
same activity or activities.
``(g) Permissible Number of Cases.--The Register of Copyrights may
establish regulations relating to the permitted number of proceedings
each year by the same claimant under this chapter, in the interests of
justice and the administration of the Copyright Claims Board.
``Sec. 1505. Registration requirement
``(a) Application or Certificate.--A claim or counterclaim alleging
infringement of an exclusive right in a copyrighted work may not be
asserted before the Copyright Claims Board unless--
``(1) the legal or beneficial owner of the copyright has
first delivered a completed application, a deposit, and the
required fee for registration of the copyright to the Copyright
Office; and
``(2) a registration certificate has either been issued or
has not been refused.
``(b) Certificate of Registration.--Notwithstanding any other
provision of law, a claimant or counterclaimant in a proceeding before
the Copyright Claims Board shall be eligible to recover actual damages
and profits or statutory damages under this chapter for infringement of
a work if the requirements of subsection (a) have been met, except
that--
``(1) the Copyright Claims Board may not render a
determination in the proceeding until--
``(A) a registration certificate with respect to the
work has been issued by the Copyright Office, submitted
to the Copyright Claims Board, and made available to
the other parties to the proceeding; and
``(B) the other parties to the proceeding have been
provided an opportunity to address the registration
certificate;
``(2) if the proceeding may not proceed further because a
registration certificate for the work is pending, the
proceeding shall be held in abeyance pending submission of the
certificate to the Copyright Claims Board, except that, if the
proceeding is held in abeyance for more than 1 year, the
Copyright Claims Board may, upon providing written notice to
the parties to the proceeding, and 30 days to the parties to
respond to the notice, dismiss the proceeding without
prejudice; and
``(3) if the Copyright Claims Board receives notice that
registration with respect to the work has been refused, the
proceeding shall be dismissed without prejudice.
``(c) Presumption.--In a case in which a registration certificate
shows that registration with respect to a work was issued not later
than 5 years after the date of the first publication of the work, the
presumption under section 410(c) shall apply in a proceeding before the
Copyright Claims Board, in addition to relevant principles of law under
this title.
``(d) Regulations.--In order to ensure that actions before the
Copyright Claims Board proceed in a timely manner, the Register of
Copyrights shall establish regulations allowing the Copyright Office to
make a decision, on an expedited basis, to issue or deny copyright
registration for an unregistered work that is at issue before the
Board.
``Sec. 1506. Conduct of proceedings
``(a) In General.--
``(1) Applicable law.--Proceedings of the Copyright Claims
Board shall be conducted in accordance with this chapter and
regulations established by the Register of Copyrights under
this chapter, in addition to relevant principles of law under
this title.
``(2) Conflicting precedent.--If it appears that there may be
conflicting judicial precedent on an issue of substantive
copyright law that cannot be reconciled, the Copyright Claims
Board shall follow the law of the Federal jurisdiction in which
the action could have been brought if filed in a district court
of the United States, or, if the action could have been brought
in more than 1 such jurisdiction, the jurisdiction that the
Copyright Claims Board determines has the most significant ties
to the parties and conduct at issue.
``(b) Record.--The Copyright Claims Board shall maintain records
documenting the proceedings before the Board.
``(c) Centralized Process.--Proceedings before the Copyright Claims
Board shall--
``(1) be conducted at the offices of the Copyright Claims
Board without the requirement of in-person appearances by
parties or others; and
``(2) take place by means of written submissions, hearings,
and conferences carried out through internet-based applications
and other telecommunications facilities, except that, in cases
in which physical or other nontestimonial evidence material to
a proceeding cannot be furnished to the Copyright Claims Board
through available telecommunications facilities, the Copyright
Claims Board may make alternative arrangements for the
submission of such evidence that do not prejudice any other
party to the proceeding.
``(d) Representation.--A party to a proceeding before the Copyright
Claims Board may be, but is not required to be, represented by--
``(1) an attorney; or
``(2) a law student who is qualified under applicable law
governing representation by law students of parties in legal
proceedings and who provides such representation on a pro bono
basis.
``(e) Commencement of Proceeding.--In order to commence a proceeding
under this chapter, a claimant shall, subject to such additional
requirements as may be prescribed in regulations established by the
Register of Copyrights, file a claim with the Copyright Claims Board,
that--
``(1) includes a statement of material facts in support of
the claim;
``(2) is certified under subsection (y)(1); and
``(3) is accompanied by a filing fee in such amount as may be
prescribed in regulations established by the Register of
Copyrights.
``(f) Review of Claims and Counterclaims.--
``(1) Claims.--Upon the filing of a claim under subsection
(e), the claim shall be reviewed by a Copyright Claims Attorney
to ensure that the claim complies with this chapter and
applicable regulations, subject to the following:
``(A) If the claim is found to comply, the claimant
shall be notified regarding that compliance and
instructed to proceed with service of the claim under
subsection (g).
``(B) If the claim is found not to comply, the
claimant shall be notified that the claim is deficient
and be permitted to file an amended claim not later
than 30 days after the date on which the claimant
receives the notice, without the requirement of an
additional filing fee. If the claimant files a
compliant claim within that 30-day period, the claimant
shall be so notified and be instructed to proceed with
service of the claim. If the claim is refiled within
that 30-day period and still fails to comply, the
claimant shall again be notified that the claim is
deficient and shall be provided a second opportunity to
amend the claim within 30 days after the date of that
second notice, without the requirement of an additional
filing fee. If the claim is refiled again within that
second 30-day period and is compliant, the claimant
shall be so notified and shall be instructed to proceed
with service of the claim, but if the claim still fails
to comply, upon confirmation of such noncompliance by a
Copyright Claims Officer, the proceeding shall be
dismissed without prejudice. The Copyright Claims Board
shall also dismiss without prejudice any proceeding in
which a compliant claim is not filed within the
applicable 30-day period.
``(C)(i) Subject to clause (ii), for purposes of this
paragraph, a claim against an online service provider
for infringement by reason of the storage of or
referral or linking to infringing material that may be
subject to the limitations on liability set forth in
subsection (b), (c), or (d) of section 512 shall be
considered noncompliant unless the claimant affirms in
the statement required under subsection (e)(1) of this
section that the claimant has previously notified the
service provider of the claimed infringement in
accordance with subsection (b)(2)(E), (c)(3), or (d)(3)
of section 512, as applicable, and the service provider
failed to remove or disable access to the material
expeditiously upon the provision of such notice.
``(ii) If a claim is found to be noncompliant under
clause (i), the Copyright Claims Board shall provide
the claimant with information concerning the service of
such a notice under the applicable provision of section
512.
``(2) Counterclaims.--Upon the filing and service of a
counterclaim, the counterclaim shall be reviewed by a Copyright
Claims Attorney to ensure that the counterclaim complies with
the provisions of this chapter and applicable regulations. If
the counterclaim is found not to comply, the counterclaimant
and the other parties to the proceeding shall be notified that
the counterclaim is deficient, and the counterclaimant shall be
permitted to file and serve an amended counterclaim within 30
days after the date of such notice. If the counterclaimant
files and serves a compliant counterclaim within that 30-day
period, the counterclaimant and such other parties shall be so
notified. If the counterclaim is refiled and served within that
30-day period but still fails to comply, the counterclaimant
and such other parties shall again be notified that the
counterclaim is deficient, and the counterclaimant shall be
provided a second opportunity to amend the counterclaim within
30 days after the date of the second notice. If the
counterclaim is refiled and served again within that second 30-
day period and is compliant, the counterclaimant and such other
parties shall be so notified, but if the counterclaim still
fails to comply, upon confirmation of such noncompliance by a
Copyright Claims Officer, the counterclaim, but not the
proceeding, shall be dismissed without prejudice.
``(3) Dismissal for unsuitability.--The Copyright Claims
Board shall dismiss a claim or counterclaim without prejudice
if, upon reviewing the claim or counterclaim, or at any other
time in the proceeding, the Copyright Claims Board concludes
that the claim or counterclaim is unsuitable for determination
by the Copyright Claims Board, including on account of any of
the following:
``(A) The failure to join a necessary party.
``(B) The lack of an essential witness, evidence, or
expert testimony.
``(C) The determination of a relevant issue of law or
fact that could exceed either the number of proceedings
the Copyright Claims Board could reasonably administer
or the subject matter competence of the Copyright
Claims Board.
``(g) Service of Notice and Claims.--In order to proceed with a claim
against a respondent, a claimant shall, within 90 days after receiving
notification under subsection (f) to proceed with service, file with
the Copyright Claims Board proof of service on the respondent. In order
to effectuate service on a respondent, the claimant shall cause notice
of the proceeding and a copy of the claim to be served on the
respondent, either by personal service or pursuant to a waiver of
personal service, as prescribed in regulations established by the
Register of Copyrights. Such regulations shall include the following
requirements:
``(1) The notice of the proceeding shall adhere to a
prescribed form and shall set forth the nature of the Copyright
Claims Board and proceeding, the right of the respondent to opt
out, and the consequences of opting out and not opting out,
including a prominent statement that, by not opting out within
60 days after receiving the notice, the respondent--
``(A) loses the opportunity to have the dispute
decided by a court created under article III of the
Constitution of the United States; and
``(B) waives the right to a jury trial regarding the
dispute.
``(2) The copy of the claim served on the respondent shall be
the same as the claim that was filed with the Copyright Claims
Board.
``(3) Personal service of a notice and claim may be effected
by an individual who is not a party to the proceeding and is
older than 18 years of age.
``(4) An individual, other than a minor or incompetent
individual, may be served by--
``(A) complying with State law for serving a summons
in an action brought in courts of general jurisdiction
in the State where service is made;
``(B) delivering a copy of the notice and claim to
the individual personally;
``(C) leaving a copy of the notice and claim at the
individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides
there; or
``(D) delivering a copy of the notice and claim to an
agent designated by the respondent to receive service
of process or, if not so designated, an agent
authorized by appointment or by law to receive service
of process.
``(5)(A) A corporation, partnership, or unincorporated
association that is subject to suit in courts of general
jurisdiction under a common name shall be served by delivering
a copy of the notice and claim to its service agent. If such
service agent has not been designated, service shall be
accomplished--
``(i) by complying with State law for serving a
summons in an action brought in courts of general
jurisdiction in the State where service is made; or
``(ii) by delivering a copy of the notice and claim
to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to
receive service of process in an action brought in
courts of general jurisdiction in the State where
service is made and, if the agent is one authorized by
statute and the statute so requires, by also mailing a
copy of the notice and claim to the respondent.
``(B) A corporation, partnership or unincorporated
association that is subject to suit in courts of general
jurisdiction under a common name may elect to designate a
service agent to receive notice of a claim against it before
the Copyright Claims Board by complying with requirements that
the Register of Copyrights shall establish by regulation. The
Register of Copyrights shall maintain a current directory of
service agents that is available to the public for inspection,
including through the internet, and may require such
corporations, partnerships, and unincorporated associations
designating such service agents to pay a fee to cover the costs
of maintaining the directory.
``(6) In order to request a waiver of personal service, the
claimant may notify a respondent, by first class mail or by
other reasonable means, that a proceeding has been commenced,
such notice to be made in accordance with regulations
established by the Register of Copyrights, subject to the
following:
``(A) Any such request shall be in writing, shall be
addressed to the respondent, and shall be accompanied
by a prescribed notice of the proceeding, a copy of the
claim as filed with the Copyright Claims Board, a
prescribed form for waiver of personal service, and a
prepaid or other means of returning the form without
cost.
``(B) The request shall state the date on which the
request is sent, and shall provide the respondent a
period of 30 days, beginning on the date on which the
request is sent, to return the waiver form signed by
the respondent. The signed waiver form shall, for
purposes of this subsection, constitute acceptance and
proof of service as of the date on which the waiver is
signed.
``(7)(A) A respondent's waiver of personal service shall not
constitute a waiver of the respondent's right to opt out of the
proceeding.
``(B) A respondent who timely waives personal service under
paragraph (6) and does not opt out of the proceeding shall be
permitted a period of 30 days, in addition to the period
otherwise permitted under the applicable procedures of the
Copyright Claims Board, to submit a substantive response to the
claim, including any defenses and counterclaims.
``(8) A minor or an incompetent individual may only be served
by complying with State law for serving a summons or like
process on such an individual in an action brought in the
courts of general jurisdiction of the State where service is
made.
``(9) Service of a claim and waiver of personal service may
only be effected within the United States.
``(h) Notification by Copyright Claims Board.--The Register of
Copyrights shall establish regulations providing for a written
notification to be sent by, or on behalf of, the Copyright Claims Board
to notify the respondent of a pending proceeding against the
respondent, as set forth in those regulations, which shall--
``(1) include information concerning the respondent's right
to opt out of the proceeding, the consequences of opting out
and not opting out, and a prominent statement that, by not
opting out within 60 days after the date of service under
subsection (g), the respondent loses the opportunity to have
the dispute decided by a court created under article III of the
Constitution of the United States and waives the right to a
jury trial regarding the dispute; and
``(2) be in addition to, and separate and apart from, the
notice requirements under subsection (g).
``(i) Opt-Out Procedure.--Upon being properly served with a notice
and claim, a respondent who chooses to opt out of the proceeding shall
have a period of 60 days, beginning on the date of service, in which to
provide written notice of such choice to the Copyright Claims Board, in
accordance with regulations established by the Register of Copyrights.
If proof of service has been filed by the claimant and the respondent
does not submit an opt-out notice to the Copyright Claims Board within
that 60-day period, the proceeding shall be deemed an active proceeding
and the respondent shall be bound by the determination in the
proceeding to the extent provided under section 1507(a). If the
respondent opts out of the proceeding during that 60-day period, the
proceeding shall be dismissed without prejudice, except that, in
exceptional circumstances and upon written notice to the claimant, the
Copyright Claims Board may extend that 60-day period in the interests
of justice.
``(j) Service of Other Documents.--Documents submitted or relied upon
in a proceeding, other than the notice and claim, shall be served in
accordance with regulations established by the Register of Copyrights.
``(k) Scheduling.--Upon confirmation that a proceeding has become an
active proceeding, the Copyright Claims Board shall issue a schedule
for the future conduct of the proceeding. The schedule shall not
specify a time that a claimant or counterclaimant is required make an
election of damages that is inconsistent with section 1504(e). A
schedule issued by the Copyright Claims Board may be amended by the
Copyright Claims Board in the interests of justice.
``(l) Conferences.--One or more Copyright Claims Officers may hold a
conference to address case management or discovery issues in a
proceeding, which shall be noted upon the record of the proceeding and
may be recorded or transcribed.
``(m) Party Submissions.--A proceeding of the Copyright Claims Board
may not include any formal motion practice, except that, subject to
applicable regulations and procedures of the Copyright Claims Board--
``(1) the parties to the proceeding may make requests to the
Copyright Claims Board to address case management and discovery
matters, and submit responses thereto; and
``(2) the Copyright Claims Board may request or permit
parties to make submissions addressing relevant questions of
fact or law, or other matters, including matters raised sua
sponte by the Copyright Claims Officers, and offer responses
thereto.
``(n) Discovery.--Discovery in a proceeding shall be limited to the
production of relevant information and documents, written
interrogatories, and written requests for admission, as provided in
regulations established by the Register of Copyrights, except that--
``(1) upon the request of a party, and for good cause shown,
the Copyright Claims Board may approve additional relevant
discovery, on a limited basis, in particular matters, and may
request specific information and documents from participants in
the proceeding and voluntary submissions from nonparticipants,
consistent with the interests of justice;
``(2) upon the request of a party, and for good cause shown,
the Copyright Claims Board may issue a protective order to
limit the disclosure of documents or testimony that contain
confidential information; and
``(3) after providing notice and an opportunity to respond,
and upon good cause shown, the Copyright Claims Board may apply
an adverse inference with respect to disputed facts against a
party who has failed to timely provide discovery materials in
response to a proper request for materials that could be
relevant to such facts.
``(o) Evidence.--The Copyright Claims Board may consider the
following types of evidence in a proceeding, and such evidence may be
admitted without application of formal rules of evidence:
``(1) Documentary and other nontestimonial evidence that is
relevant to the claims, counterclaims, or defenses in the
proceeding.
``(2) Testimonial evidence, submitted under penalty of
perjury in written form or in accordance with subsection (p),
limited to statements of the parties and nonexpert witnesses,
that is relevant to the claims, counterclaims, and defenses in
a proceeding, except that, in exceptional cases, expert witness
testimony or other types of testimony may be permitted by the
Copyright Claims Board for good cause shown.
``(p) Hearings.--The Copyright Claims Board may conduct a hearing to
receive oral presentations on issues of fact or law from parties and
witnesses to a proceeding, including oral testimony, subject to the
following:
``(1) Any such hearing shall be attended by not fewer than
two of the Copyright Claims Officers.
``(2) The hearing shall be noted upon the record of the
proceeding and, subject to paragraph (3), may be recorded or
transcribed as deemed necessary by the Copyright Claims Board.
``(3) A recording or transcript of the hearing shall be made
available to any Copyright Claims Officer who is not in
attendance.
``(q) Voluntary Dismissal.--
``(1) By claimant.--Upon the written request of a claimant
that is received before a respondent files a response to the
claim in a proceeding, the Copyright Claims Board shall dismiss
the proceeding, or a claim or respondent, as requested, without
prejudice.
``(2) By counterclaimant.--Upon written request of a
counterclaimant that is received before a claimant files a
response to the counterclaim, the Copyright Claims Board shall
dismiss the counterclaim, such dismissal to be without
prejudice.
``(3) Class actions.--Any party in an active proceeding
before the Copyright Claims Board who receives notice of a
pending or putative class action, arising out of the same
transaction or occurrence, in which that party is a class
member may request in writing dismissal of the proceeding
before the Board. Upon notice to all claimants and
counterclaimants, the Copyright Claims Board shall dismiss the
proceeding without prejudice.
``(r) Settlement.--
``(1) In general.--At any time in an active proceeding, some
or all of the parties may--
``(A) jointly request a conference with a Copyright
Claims Officer for the purpose of facilitating
settlement discussions; or
``(B) submit to the Copyright Claims Board an
agreement providing for settlement and dismissal of
some or all of the claims and counterclaims in the
proceeding.
``(2) Additional request.--A submission under paragraph
(1)(B) may include a request that the Copyright Claims Board
adopt some or all of the terms of the parties' settlement in a
final determination in the proceeding.
``(s) Factual Findings.--Subject to subsection (n)(3), the Copyright
Claims Board shall make factual findings based upon a preponderance of
the evidence.
``(t) Determinations.--
``(1) Nature and contents.--A determination rendered by the
Copyright Claims Board in a proceeding shall--
``(A) be reached by a majority of the Copyright
Claims Board;
``(B) be in writing, and include an explanation of
the factual and legal basis of the determination;
``(C) set forth any terms by which a respondent or
counterclaim respondent has agreed to cease infringing
activity under section 1504(e)(2);
``(D) to the extent requested under subsection
(r)(2), set forth the terms of any settlement agreed to
under subsection (r)(1); and
``(E) include a clear statement of all damages and
other relief awarded, including under subparagraphs (C)
and (D).
``(2) Dissent.--A Copyright Claims Officer who dissents from
a decision contained in a determination under paragraph (1) may
append a statement setting forth the grounds for that dissent.
``(3) Publication.--Each final determination of the Copyright
Claims Board shall be made available on a publicly accessible
website. The Register shall establish regulations with respect
to the publication of other records and information relating to
such determinations, including the redaction of records to
protect confidential information that is the subject of a
protective order under subsection (n)(2).
``(4) Freedom of information act.--All information relating
to proceedings of the Copyright Claims Board under this title
is exempt from disclosure to the public under section 552(b)(3)
of title 5, except for determinations, records, and information
published under paragraph (3).
``(u) Respondent's Default.--If a proceeding has been deemed an
active proceeding but the respondent has failed to appear or has ceased
participating in the proceeding, as demonstrated by the respondent's
failure, without justifiable cause, to meet one or more deadlines or
requirements set forth in the schedule adopted by the Copyright Claims
Board under subsection (k), the Copyright Claims Board may enter a
default determination, including the dismissal of any counterclaim
asserted by the respondent, as follows and in accordance with such
other requirements as the Register of Copyrights may establish by
regulation:
``(1) The Copyright Claims Board shall require the claimant
to submit relevant evidence and other information in support of
the claimant's claim and any asserted damages and, upon review
of such evidence and any other requested submissions from the
claimant, shall determine whether the materials so submitted
are sufficient to support a finding in favor of the claimant
under applicable law and, if so, the appropriate relief and
damages, if any, to be awarded.
``(2) If the Copyright Claims Board makes an affirmative
determination under paragraph (1), the Copyright Claims Board
shall prepare a proposed default determination, and shall
provide written notice to the respondent at all addresses,
including email addresses, reflected in the records of the
proceeding before the Copyright Claims Board, of the pendency
of a default determination by the Copyright Claims Board and of
the legal significance of such determination. Such notice shall
be accompanied by the proposed default determination and shall
provide that the respondent has a period of 30 days, beginning
on the date of the notice, to submit any evidence or other
information in opposition to the proposed default
determination.
``(3) If the respondent responds to the notice provided under
paragraph (2) within the 30-day period provided in such
paragraph, the Copyright Claims Board shall consider
respondent's submissions and, after allowing the other parties
to address such submissions, maintain, or amend its proposed
determination as appropriate, and the resulting determination
shall not be a default determination.
``(4) If the respondent fails to respond to the notice
provided under paragraph (2), the Copyright Claims Board shall
proceed to issue the default determination as a final
determination. Thereafter, the respondent may only challenge
such determination to the extent permitted under section
1508(c), except that, before any additional proceedings are
initiated under section 1508, the Copyright Claims Board may,
in the interests of justice, vacate the default determination.
``(v) Claimant's Failure To Proceed.--
``(1) Failure to complete service.--If a claimant fails to
complete service on a respondent within the 90-day period
required under subsection (g), the Copyright Claims Board shall
dismiss that respondent from the proceeding without prejudice.
If a claimant fails to complete service on all respondents
within that 90-day period, the Copyright Claims Board shall
dismiss the proceeding without prejudice.
``(2) Failure to prosecute.--If a claimant fails to proceed
in an active proceeding, as demonstrated by the claimant's
failure, without justifiable cause, to meet one or more
deadlines or requirements set forth in the schedule adopted by
the Copyright Claims Board under subsection (k), the Copyright
Claims Board may, upon providing written notice to the claimant
and a period of 30 days, beginning on the date of the notice,
to respond to the notice, and after considering any such
response, issue a determination dismissing the claimants'
claims, which shall include an award of attorneys' fees and
costs, if appropriate, under subsection (y)(2). Thereafter, the
claimant may only challenge such determination to the extent
permitted under section 1508(c), except that, before any
additional proceedings are initiated under section 1508, the
Copyright Claims Board may, in the interests of justice, vacate
the determination of dismissal.
``(w) Request for Reconsideration.--A party may, within 30 days after
the date on which the Copyright Claims Board issues a final
determination in a proceeding under this chapter, submit a written
request for reconsideration of, or an amendment to, such determination
if the party identifies a clear error of law or fact material to the
outcome, or a technical mistake. After providing the other parties an
opportunity to address such request, the Copyright Claims Board shall
either deny the request or issue an amended final determination.
``(x) Review by Register.--If the Copyright Claims Board denies a
party a request for reconsideration of a final determination under
subsection (w), that party may, within 30 days after the date of such
denial, request review of the final determination by the Register of
Copyrights in accordance with regulations established by the Register.
Such request shall be accompanied by a reasonable filing fee, as
provided in such regulations. The review by the Register shall be
limited to consideration of whether the Copyright Claims Board abused
its discretion in denying reconsideration of the determination. After
providing the other parties an opportunity to address the request, the
Register shall either deny the request for review, or remand the
proceeding to the Copyright Claims Board for reconsideration of issues
specified in the remand and for issuance of an amended final
determination. Such amended final determination shall not be subject to
further consideration or review, other than under section 1508(c).
``(y) Conduct of Parties and Attorneys.--
``(1) Certification.--The Register of Copyrights shall
establish regulations requiring certification of the accuracy
and truthfulness of statements made by participants in
proceedings before the Copyright Claims Board.
``(2) Bad faith conduct.--Notwithstanding any other provision
of law, in any proceeding in which a determination is rendered
and it is established that a party pursued a claim,
counterclaim, or defense for a harassing or other improper
purpose, or without a reasonable basis in law or fact, then,
unless inconsistent with the interests of justice, the
Copyright Claims Board shall in such determination award
reasonable costs and attorneys' fees to any adversely affected
party of in an amount of not more than $5,000, except that--
``(A) if an adversely affected party appeared pro se
in the proceeding, the award to that party shall be for
costs only, in an amount of not more than $2,500; and
``(B) in extraordinary circumstances, such as where a
party has demonstrated a pattern or practice of bad
faith conduct as described in this paragraph, the
Copyright Claims Board may, in the interests of
justice, award costs and attorneys' fees in excess of
the limitations under this paragraph.
``(3) Additional penalty.--If the Board finds that on more
than one occasion within a 12-month period a party pursued a
claim, counterclaim, or defense before the Copyright Claims
Board for a harassing or other improper purpose, or without a
reasonable basis in law or fact, that party shall be barred
from initiating a claim before the Copyright Claims Board under
this chapter for a period of 12 months beginning on the date on
which the Board makes such a finding. Any proceeding commenced
by that party that is still pending before the Board when such
a finding is made shall be dismissed without prejudice, except
that if a proceeding has been deemed active under subsection
(i), the proceeding shall be dismissed under this paragraph
only if the respondent provides written consent thereto.
``(z) Regulations for Smaller Claims.--The Register of Copyrights
shall establish regulations to provide for the consideration and
determination, by at least one Copyright Claims Officer, of any claim
under this chapter in which total damages sought do not exceed $5,000
(exclusive of attorneys' fees and costs) that are otherwise consistent
with this chapter. A determination issued under this subsection shall
have the same effect as a determination issued by the entire Copyright
Claims Board.
``Sec. 1507. Effect of proceeding
``(a) Determination.--Subject to the reconsideration and review
processes provided under subsections (w) and (x) of section 1506 and
section 1508(c), the issuance of a final determination by the Copyright
Claims Board in a proceeding, including a default determination or
determination based on a failure to prosecute, shall, solely with
respect to the parties to such determination, preclude relitigation
before any court or tribunal, or before the Copyright Claims Board, of
the claims and counterclaims asserted and finally determined by the
Board, and may be relied upon for such purpose in a future action or
proceeding arising from the same specific activity or activities,
subject to the following:
``(1) A determination of the Copyright Claims Board shall not
preclude litigation or relitigation as between the same or
different parties before any court or tribunal, or the
Copyright Claims Board, of the same or similar issues of fact
or law in connection with claims or counterclaims not asserted
or not finally determined by the Copyright Claims Board.
``(2) A determination of ownership of a copyrighted work for
purposes of resolving a matter before the Copyright Claims
Board may not be relied upon, and shall not have any preclusive
effect, in any other action or proceeding before any court or
tribunal, including the Copyright Claims Board.
``(3) Except to the extent permitted under this subsection
and section 1508, any determination of the Copyright Claims
Board may not be cited or relied upon as legal precedent in any
other action or proceeding before any court or tribunal,
including the Copyright Claims Board.
``(b) Class Actions Not Affected.--
``(1) In general.--A proceeding before the Copyright Claims
Board shall not have any effect on a class action proceeding in
a district court of the United States, and section 1509(a)
shall not apply to a class action proceeding in a district
court of the United States.
``(2) Notice of class action.--Any party to an active
proceeding before the Copyright Claims Board who receives
notice of a pending class action, arising out of the same
transaction or occurrence as the proceeding before the
Copyright Claims Board, in which the party is a class member
shall either--
``(A) opt out of the class action, in accordance with
regulations established by the Register of Copyrights;
or
``(B) seek dismissal under section 1506(q)(3) of the
proceeding before the Copyright Claims Board.
``(c) Other Materials in Proceeding.--Except as permitted under this
section and section 1508, a submission or statement of a party or
witness made in connection with a proceeding before the Copyright
Claims Board, including a proceeding that is dismissed, may not be
cited or relied upon in, or serve as the basis of, any action or
proceeding concerning rights or limitations on rights under this title
before any court or tribunal, including the Copyright Claims Board.
``(d) Applicability of Section 512(g).--A claim or counterclaim
before the Copyright Claims Board that is brought under subsection
(c)(1) or (c)(4) of section 1504, or brought under subsection (c)(6) of
section 1504 and that relates to a claim under subsection (c)(1) or
(c)(4) of such section, qualifies as an action seeking an order to
restrain a subscriber from engaging in infringing activity under
section 512(g)(2)(C) if--
``(1) notice of the commencement of the Copyright Claims
Board proceeding is provided by the claimant to the service
provider's designated agent before the service provider
replaces the material following receipt of a counter
notification under section 512(g); and
``(2) the claim brought alleges infringement of the material
identified in the notification of claimed infringement under
section 512(c)(1)(C).
``(e) Failure To Assert Counterclaim.--The failure or inability to
assert a counterclaim in a proceeding before the Copyright Claims Board
shall not preclude the assertion of that counterclaim in a subsequent
court action or proceeding before the Copyright Claims Board.
``(f) Opt-Out or Dismissal of Party.--If a party has timely opted out
of a proceeding under section 1506(i) or is dismissed from a proceeding
before the Copyright Claims Board issues a final determination in the
proceeding, the determination shall not be binding upon and shall have
no preclusive effect with respect to that party.
``Sec. 1508. Review and confirmation by district court
``(a) In General.--In any proceeding in which a party has failed to
pay damages, or has failed otherwise to comply with the relief, awarded
in a final determination of the Copyright Claims Board, including a
default determination or a determination based on a failure to
prosecute, the aggrieved party may, not later than 1 year after the
date on which the final determination is issued, any reconsideration by
the Copyright Claims Board or review by the Register of Copyrights is
resolved, or an amended final determination is issued, whichever occurs
last, apply to the United States District Court for the District of
Columbia or any other appropriate district court of the United States
for an order confirming the relief awarded in the final determination
and reducing such award to judgment. The court shall grant such order
and direct entry of judgment unless the determination is or has been
vacated, modified, or corrected under subsection (c). If the United
States District Court for the District of Columbia or other district
court of the United States, as the case may be, issues an order
confirming the relief awarded by the Copyright Claims Board, the court
shall impose on the party who failed to pay damages or otherwise comply
with the relief, the reasonable expenses required to secure such order,
including attorneys' fees, that were incurred by the aggrieved party.
``(b) Filing Procedures.--
``(1) Application to confirm determination.--Notice of the
application under subsection (a) for confirmation of a
determination of the Copyright Claims Board and entry of
judgment shall be provided to all parties to the proceeding
before the Copyright Claims Board that resulted in the
determination, in accordance with the procedures applicable to
service of a motion in the district court of the United States
where the application is made.
``(2) Contents of application.--The application shall include
the following:
``(A) A certified copy of the final or amended final
determination of the Copyright Claims Board, as
reflected in the records of the Copyright Claims Board,
following any process of reconsideration or review by
the Register of Copyrights, to be confirmed and
rendered to judgment.
``(B) A declaration by the applicant, under penalty
of perjury--
``(i) that the copy is a true and correct
copy of such determination;
``(ii) stating the date it was issued;
``(iii) stating the basis for the challenge
under subsection (c)(1); and
``(iv) stating whether the applicant is aware
of any other proceedings before the court
concerning the same determination of the
Copyright Claims Board.
``(c) Challenges to the Determination.--
``(1) Bases for challenge.--Not later than 90 days after the
date on which Copyright Claims Board issues a final or amended
final determination in a proceeding, or not later than 90 days
after the date on which the Register of Copyrights completes
any process of reconsideration or review of the determination,
whichever occurs later, a party may seek a court order
vacating, modifying, or correcting the determination of the
Copyright Claims Board in the following cases:
``(A) If the determination was issued as a result of
fraud, corruption, misrepresentation, or other
misconduct.
``(B) If the Copyright Claims Board exceeded its
authority or failed to render a final determination
concerning the subject matter at issue.
``(C) In the case of a default determination or
determination based on a failure to prosecute, if it is
established that the default or failure was due to
excusable neglect.
``(2) Procedure to challenge.--
``(A) Notice of application.--Notice of the
application to challenge a determination of the
Copyright Claims Board shall be provided to all parties
to the proceeding before the Copyright Claims Board, in
accordance with the procedures applicable to service of
a motion in the court where the application is made.
``(B) Staying of proceedings.--For purposes of an
application under this subsection, any judge who is
authorized to issue an order to stay the proceedings in
an any other action brought in the same court may issue
an order, to be served with the notice of application,
staying proceedings to enforce the award while the
challenge is pending.
``Sec. 1509. Relationship to other district court actions
``(a) Stay of District Court Proceedings.--Subject to section
1507(b), a district court of the United States shall issue a stay of
proceedings or such other relief as the court determines appropriate
with respect to any claim brought before the court that is already the
subject of a pending or active proceeding before the Copyright Claims
Board.
``(b) Alternative Dispute Resolution Process.--A proceeding before
the Copyright Claims Board under this chapter shall qualify as an
alternative dispute resolution process under section 651 of title 28
for purposes of referral of eligible cases by district courts of the
United States upon the consent of the parties.
``Sec. 1510. Implementation by Copyright Office
``(a) Regulations.--
``(1) Implementation generally.--The Register of Copyrights
shall establish regulations to carry out this chapter. Such
regulations shall include the fees prescribed under subsections
(e) and (x) of section 1506. The authority to issue such fees
shall not limit the authority of the Register of Copyrights to
establish fees for services under section 708. All fees
received by the Copyright Office in connection with the
activities under this chapter shall be deposited by the
Register of Copyrights and credited to the appropriations for
necessary expenses of the Office in accordance with section
708(d). In establishing regulations under this subsection, the
Register of Copyrights shall provide for the efficient
administration of the Copyright Claims Board, and for the
ability of the Copyright Claims Board to timely complete
proceedings instituted under this chapter, including by
implementing mechanisms to prevent harassing or improper use of
the Copyright Claims Board by any party.
``(2) Limits on monetary relief.--
``(A) In general.--Subject to subparagraph (B), not
earlier than 3 years after the date on which Copyright
Claims Board issues the first determination of the
Copyright Claims Board, the Register of Copyrights may,
in order to further the goals of the Copyright Claims
Board, conduct a rulemaking to adjust the limits on
monetary recovery or attorneys' fees and costs that may
be awarded under this chapter.
``(B) Effective date of adjustment.--Any rule under
subparagraph (A) that makes an adjustment shall take
effect at the end of the 120-day period beginning on
the date on which the Register of Copyrights submits
the rule to Congress and only if Congress does not,
during that 120-day period, enact a law that provides
in substance that Congress does not approve the rule.
``(b) Necessary Facilities.--Subject to applicable law, the Register
of Copyrights may retain outside vendors to establish internet-based,
teleconferencing, and other facilities required to operate the
Copyright Claims Board.
``(c) Fees.--Any filing fees, including the fee to commence a
proceeding under section 1506(e), shall be prescribed in regulations
established by the Register of Copyrights. The sum total of such filing
fees shall be in an amount of at least $100, may not exceed the cost of
filing an action in a district court of the United States, and shall be
fixed in amounts that further the goals of the Copyright Claims Board.
``Sec. 1511. Funding
``There are authorized to be appropriated such sums as may be
necessary to pay the costs incurred by the Copyright Office under this
chapter that are not covered by fees collected for services rendered
under this chapter, including the costs of establishing and maintaining
the Copyright Claims Board and its facilities.''.
(b) Clerical Amendment.--The table of chapters for title 17, United
States Code, is amended by adding after the item relating to chapter 14
the following:
``15. Copyright Small Claims................................ 1501''.
SEC. 3. IMPLEMENTATION.
Not later 1 year after the date of enactment of this Act, the
Copyright Claims Board established under section 1502 of title 17,
United States Code, as added by section 2 of this Act, shall begin
operations.
SEC. 4. STUDY.
Not later than 3 years after the date on which Copyright Claims Board
issues the first determination of the Copyright Claims Board under
chapter 15 of title 17, United States Code, as added by section 2 of
this Act, the Register of Copyrights shall conduct, and report to
Congress on, a study that addresses the following:
(1) The use and efficacy of the Copyright Claims Board in
resolving copyright claims, including the number of proceedings
the Copyright Claims Board could reasonably administer.
(2) Whether adjustments to the authority of the Copyright
Claims Board are necessary or advisable, including with respect
to--
(A) eligible claims, such as claims under section
1202 of title 17, United States Code; and
(B) works and applicable damages limitations.
(3) Whether greater allowance should be made to permit awards
of attorneys' fees and costs to prevailing parties, including
potential limitations on such awards.
(4) Potential mechanisms to assist copyright owners with
small claims in ascertaining the identity and location of
unknown online infringers.
(5) Whether the Copyright Claims Board should be expanded to
offer mediation or other nonbinding alternative dispute
resolution services to interested parties.
(6) Such other matters as the Register of Copyrights believes
may be pertinent concerning the Copyright Claims Board.
SEC. 5. SEVERABILITY.
If any provision of this Act, an amendment made by this Act, or the
application of such provision or amendment to any person or
circumstance is held to be unconstitutional, the remainder of this Act
and the amendments made by this Act, and the application of the
provision or the amendment to any other person or circumstance, shall
not be affected.
Purpose and Summary
H.R. 2426, the ``Copyright Alternative in Small-Claims
Enforcement of 2019'' or the ``CASE Act of 2019,'' creates a
Copyright Claims Board (the ``Board''), located in the U.S.
Copyright Office and intended to be a forum for lower-value
copyright disputes in which participation is voluntary for both
claimants and respondents. The copyright small claims process
the bill establishes is intended to be accessible especially
for pro se parties and those with little prior formal exposure
to copyright laws who cannot otherwise afford to have their
claims and defenses heard in federal court.
The bill provides that participation in a Copyright Claims
Board proceeding is voluntary.\1\ A respondent may opt out
within 60 days of being served with a claim.\2\ The Board is
composed of three Copyright Claims Officers recommended by the
Register of Copyrights and appointed by the Librarian of
Congress. The Board must ``render determinations . . .
independently,'' and must adhere to existing case law.\3\ The
Copyright Claims Officers serve under the general direction of
the Register of Copyrights,\4\ and may be sanctioned or removed
by the Librarian of Congress.\5\
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\1\See H.R. 2426, 116th Cong. Sec. 2(a) (2019) (to be codified at
15 U.S.C. Sec. 1504(a)). Subsequent citations of the new sections to be
codified under the Act will reference only the to-be-codified section.
\2\Id. Sec. 1506(i).
\3\Id. Sec. 1503(b).
\4\Id. Sec. 1503(c).
\5\Id. Sec. 1502(b)(7).
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Parties may appear pro se or be represented by an attorney
or by a law student acting pro bono.\6\ Copyright Claims
Attorneys are tasked with assisting the public, including
potential claimants and respondents with respect to the
procedures and requirements for litigating before the Board.\7\
To ensure that the proceedings are streamlined and efficient,
discovery is circumscribed.\8\ Additionally, for the category
of smaller claims of $5,000 or less, the Register of Copyrights
must issue rules under which a single Copyright Claims Officer
can hear claims, which otherwise have the procedural
protections of any other claim before the Copyright Claims
Board.\9\
---------------------------------------------------------------------------
\6\Id. Sec. 1506(d).
\7\See id. Sec. 1503(a).
\8\Id. Sec. 1506(n).
\9\Id. Sec. 1506(z).
---------------------------------------------------------------------------
The Copyright Claims Board is empowered to hear claims for
copyright infringement, for declarations of non-infringement,
and for misrepresentation under section 512(f) of the Digital
Millennium Copyright Act (``DMCA'').\10\ Total damages are
capped at $30,000 per proceeding, and $15,000 in statutory
damages per work. The statutory damages cap is $7,500 for works
that were not timely registered pursuant to 17 U.S.C. Sec. 412,
but whose registration is a condition of the proceeding
becoming final. The Board cannot issue injunctions, but if the
parties agree to cease any infringing activity, including
taking down a work from an online platform, the Board must
include those terms in the determination.\11\ At any point
before the Board issues a final determination, the claimant or
counterclaimant can elect to receive statutory damages, actual
damages plus profits, or no damages.\12\ The Board may award up
to $5,000 (or $2,500 if the party is pro se) in costs and
attorneys' fees if a party is found to have acted in bad faith,
and, in extraordinary circumstances, more.\13\ The Board may
also bar a party that has pursued frivolous or bad faith claims
from appearing before it for a year, and may dismiss that
party's outstanding claims without prejudice.\14\
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\10\Id. Sec. 1504(c).
\11\Id. Sec. 1506(t)(1)(C); see also id. Sec. 1504(c)(2).
\12\Id. Sec. 1504(e)(1)(B).
\13\Id. Sec. 1506(y).
\14\Id.
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Decisions of the Board are subject to a request for
reconsideration by the Board.\15\ A denial of such a request
may be reviewed by the Register of Copyrights.\16\ Federal
district courts may vacate, modify, or correct a Board
determination where the determination was issued as a result of
misconduct, where the Board exceeded its authority or failed to
resolve a claim, or where a default determination or dismissal
for failure to prosecute was the result of excusable
neglect.\17\ Parties may also seek a court order to enforce the
Board's decisions.\18\
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\15\Id. Sec. 1506(w).
\16\Id. Sec. 1506(x).
\17\Id. Sec. 1508(c).
\18\Id. Sec. 1508(a).
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Background and Need for the Legislation
I. GENERAL BACKGROUND
The CASE Act is the product of more than 15 years of
consideration by the Committee.\19\ In 2006, the House
Judiciary Subcommittee on Courts, the Internet, and
Intellectual Property held a hearing focused on alternatives to
district court litigation for small copyright claims,
including, most notably, a small claims court.\20\ In 2011, the
House Judiciary Committee, observing that ``the costs of
litigating in federal court have become increasingly
prohibitive,'' requested that the Copyright Office undertake a
study on the shortfalls of the current system and, after
soliciting input from interested stakeholders, recommend
changes ``that will improve the adjudication of small copyright
claims and thereby enable all copyright owner to more fully
realize the promise of exclusive rights enshrined in our
Constitution.''\21\
---------------------------------------------------------------------------
\19\See generally Sandra M. Aistars, Ensuring Only Good Claims Come
in Small Packages: A Response to Scholarly Concerns About a Proposed
Small Copyright Claims Tribunal, 26 Geo. Mason L. Rev. 65, 69 (2018),
http://georgemasonlawreview.org/wp-content/uploads/2019/04/26-1_3-
Aistars.pdf.
\20\Remedies for Small Copyright Claims: Hearing Before the
Subcomm. on Courts, the Internet, and Intellectual Prop. of the H.
Comm. on the Judiciary, 109th Cong. (2006), https://www.govinfo.gov/
content/pkg/CHRG-109hhrg26767/pdf/CHRG-109hhrg26767.pdf.
\21\See Letter from Lamar Smith, Chairman, H. Comm. on the
Judiciary, to Maria A. Pallante, Register of Copyrights and Director,
U.S. Copyright Office (Oct. 11, 2011), included in U.S. Copyright
Office, Copyright Small Claims: A Report of the Register of Copyrights
(2013), https://www.copyright.gov/docs/smallclaims/usco-
smallcopyrightclaims.pdf.
---------------------------------------------------------------------------
The Committee's request to the Copyright Office emphasized
the importance of ensuring that copyright interests without
high expected damages have some mode of enforceability so that
individual creators, ``many of whom rely upon the promise of
exclusive rights associated with the grant of copyright to earn
a living and provide for their families[,] . . . have a
realistic ability to enforce those rights when they have a
comparatively modest claim for damages.''\22\ The request
noted:
---------------------------------------------------------------------------
\22\Id.
On an individual level, the inability to enforce one's
rights undermines the economic incentive to continue investing
in the creation of new works. On a collective level, the
inability to enforce rights corrodes respect for the rule of
law and deprives society of the benefit of new and expressive
works of authorship.\23\
---------------------------------------------------------------------------
\23\Id.
The Copyright Office delivered its report in 2013. The
report observed that modern information technology has made it
easy to make unauthorized copies of protected works ``at
virtually no cost, much to the detriment of authors and the
market for their works,'' but that, perhaps ironically, as the
rate of infringement has increased, so too have the barriers to
pursuing copyright claims in the federal courts.\24\ The report
further described how ``federal court is effectively
inaccessible to copyright owners seeking redress for claims of
relatively low economic value, especially individual creators
of limited resources.''\25\ The Copyright Office analyzed a
range of alternative models and attendant constitutional
limitations,\26\ and ultimately recommended the creation of a
small claims tribunal housed in the Copyright Office.\27\ The
Copyright Office's report and supporting materials are
incorporated here as part of the legislative history of the
CASE Act.\28\ The Copyright Office's report included proposed
model legislation. The CASE Act was introduced in the 114th
Congress based on this proposal. The bill was reintroduced in
both the 115th and 116th Congresses with several revisions.
---------------------------------------------------------------------------
\24\Copyright Small Claims, supra note 20, at 1.
\25\Id. at 8.
\26\Id. at 27 (constitutional issues); id. at 51 (state court
models); id. at 62 (administrative proceedings, Article I courts,
alternative dispute resolution procedures, and international models).
\27\Id. at 92.
\28\Those materials include the record of the Office's three
notices of inquiry, joint roundtable conducted with the United States
Patent and Trademark Office and the George Washington University Law
School, and multiday public hearings held in New York and Los Angeles.
See Remedies for Copyright Small Claims, Copyright.gov, https://
www.copyright.gov/docs/smallclaims/ (last visited Oct. 21, 2019).
---------------------------------------------------------------------------
Meanwhile, the Committee has continued to examine the need
for a small claims tribunal. The record that was developed
shows that the concerns that sparked this process more than 15
years ago remain valid, and that the need for this legislation
has increased rather than abated. For example, during a hearing
on September 27, 2018, Jenna Close, a photographer and small
business owner, offered testimony on the need for a small
claims process:
Why do visual artists so often forego legal action? The
answer is simple. Federal court litigation is too burdensome
and too expensive. The cost of bringing the suit alone would
likely dwarf any potential favorable verdict. The reality of
the system today makes infringement losses a cost of doing
business, and not one that many creators can afford. The time
to end this historic inequity is now.\29\
---------------------------------------------------------------------------
\29\See Copyright Alternative in Small-Claims Enforcement Act of
2017: Hearing on H.R. 3945 Before the H. Comm. on the Judiciary, 115th
Cong. 10 (2018), https://www.govinfo.gov/content/pkg/CHRG-115hhrg33419/
pdf/CHRG-115hhrg33419.pdf.
The Register of Copyrights echoed Ms. Close's testimony at
---------------------------------------------------------------------------
an oversight hearing held by the Committee on June 26, 2019:
Overall, this situation means that low-dollar but still
valuable copyrighted works often may be infringed with
impunity, with individual creators and small businesses often
lacking an effective remedy. Similarly, these hurdles may be
insurmountable for the majority of users who believe that they
have a strong fair use defense or are otherwise using a
copyrighted work pursuant to an exception or limitation that
allows their use . . . .\30\
---------------------------------------------------------------------------
\30\Oversight of the U.S. Copyright Office: Hearing Before the H.
Comm. on the Judiciary, 116th Cong. (2019) (statement of Karyn A.
Temple, U.S. Register of Copyrights), https://docs.house.gov/meetings/
JU/JU00/20190626/109696/HHRG-116-JU00-Wstate-TempleK-20190626-U3.pdf.
---------------------------------------------------------------------------
II. CONSTITUTIONAL CONSIDERATIONS
A. The Copyright Clause
The CASE Act flows from the Copyright Clause, the
Constitutional grant of power to Congress ``[t]o promote the
Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries.''\31\ The Copyright Clause
embodies the ``conviction that encouragement of individual
effort by personal gain is the best way to advance public
welfare through the talents of authors and investors''\32\ and
empowers Congress to create a ``system'' that promotes these
goals.\33\ The small claims process created by the CASE Act
reflects the Congressional determination that a modern
copyright system requires a small claims process to effectively
promote the creation and distribution of new works, in order to
ensure that creators can obtain a monetary return on their
investment of time, energy, and ingenuity into the creative
process.
---------------------------------------------------------------------------
\31\U.S. Const. art. I, Sec. 8, cl. 8.
\32\Mazer v. Stein, 347 U.S. 201, 219 (1954); see also Eldred v.
Ashcroft, 537 U.S. 186, 212 n.18 (2003).
\33\Eldred, 537 U.S. at 213.
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B. The Appointments Clause
The Copyright Claims Board is structured to comply with the
Constitution's Appointments Clause.\34\ The Copyright Claims
Officers are appointed as inferior officers for a fixed term by
the Senate-confirmed Librarian of Congress; their terms are
renewable, but not automatically so. The Librarian may also
sanction or remove the Claims Officers.\35\ Both the Copyright
Claims Officers and Copyright Claims Attorneys work under the
general direction of the Register of Copyrights, who reports to
the Librarian of Congress.\36\ Determinations of the Board are
subject to review by the Register of Copyrights, who reports to
the Librarian of Congress.\37\ Thus, the Claims Officers'
decisions and actions are all ultimately accountable to a
Senate-confirmed principal officer, the Librarian of Congress.
---------------------------------------------------------------------------
\34\U.S. Const. art. II, Sec. 2, cl. 2; see also Lucia v. SEC, 138
S. Ct. 2044, 2051-55 (2018); Freytag v. Comm'r, 501 U.S. 868, 880-92
(1991).
\35\See Edmond v. United States, 520 U.S. 651, 665 (1997) (``The
power to remove officers, we have recognized, is a powerful tool for
control.'').
\36\See. id. at 666.
\37\Cf. id. at 665 (``What is significant is that the judges . . .
have no power to render a final decision . . . unless permitted to do
so by other Executive Officers.'').
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C. Article III and Seventh Amendment Rights
Any alternative forum not presided over by a federal judge
must satisfy three constitutional requirements that inhere from
the Seventh Amendment right to a jury trial and the
Constitution's vesting of judicial power primarily in Article
III tribunals. Two of these protections are personal: The
general rule is that the Constitution secures both the right to
a jury trial in civil cases where more than $20 is at issue and
the right to have a case heard before an Article III
tribunal.\38\ Both of these rights can be waived so long as the
waiver is knowing and voluntary.\39\ The third protection is
structural: Congress cannot confer the government's judicial
power on non-Article III entities such that it has
impermissibly threatened the institutional integrity of the
federal courts.\40\
---------------------------------------------------------------------------
\38\CFTC v. Schor, 478 U.S. 833, 848-49 (1986).
\39\See Wellness Int'l Network v. Sharif, 135 S. Ct. 1932, 1948
(2015).
\40\Oil States Energy Servs., LLC v. Greene's Energy Grp., LLC, 138
S. Ct. 1365, 1372 (2018); Schor, 478 U.S. at 857; Sharif, 135 S. Ct. at
1945.
---------------------------------------------------------------------------
Particularly where participation in a non-Article tribunal
is mandatory, this inquiry can turn in part on whether the new
adjudicatory body deals with ``public rights'' as opposed to
``private rights.'' The difficulty here lies in the fact that
the Supreme Court ``has not definitively explained the
distinction between public and private rights,''\41\ eschewing
bright lines for a mix of functional, formal, and historical
considerations. Moreover, the case law in this area ``ha[s] not
been entirely consistent.''\42\ At least for some purposes, the
case law suggests that the grant of a copyright should be
considered a public right.\43\
---------------------------------------------------------------------------
\41\Oil States, 138 S. Ct. at 1373 (quotations omitted).
\42\Id.
\43\Id.; see also Aistars, supra note 19, at 75-76.
---------------------------------------------------------------------------
The voluntary nature of the proceedings established by the
CASE Act shifts the focus from the public rights analysis to
considerations of whether those proceedings encroach upon the
integrity of the federal courts. The Supreme Court has stated
that ``consent remains highly relevant when determining . . .
whether a particular adjudication'' duly respects the rights to
a jury trial and Article III adjudication, as well as the
federal courts' exercise of judicial power.\44\ Consent can be
explicit or inferred, but ``notification of the right to
refuse'' participation in a non-Article III forum ``is a
prerequisite to any inference of consent.''\45\ The CASE Act is
designed to ensure that the participation of respondents is
voluntary and includes explicit requirements that respondents
be informed of their right to refuse to participate in the
copyright small claims process and the constitutional rights
that attend that choice.\46\
---------------------------------------------------------------------------
\44\Sharif, 135 S. Ct. at 1942 & n.11.
\45\Id. at 1948.
\46\H.R. 2426 Sec. 1506(g).
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Other elements of the Board's structure and authority are
designed to preclude encroachment on the federal judiciary. The
Board cannot make new copyright law; instead, it is statutorily
bound to follow existing precedent.\47\ The Board cannot
enforce its determinations; rather, the Board's determinations
are ``enforceable only by order of a district court.''\48\ The
Board's decisions are subject to district court review on
limited but well-established grounds that parallel Section 10
of the Federal Arbitration Act.\49\ The Supreme Court has not
held that the Federal Arbitration Act, which permits a far
wider set of issues to be resolved by private arbitration and
subject to arguably less judicial review, threatens the
integrity of the judicial branch. Moreover, the small claims
tribunal created by the CASE Act is subject-matter limited to
statutory copyright law, rather than the common law. Ancillary
issues fall outside of the Board's statutory jurisdiction--its
``subject matter competence.''\50\ And subject matter experts--
regarding both copyright law and alternative dispute
resolution--must comprise the Board.\51\
---------------------------------------------------------------------------
\47\Id. Sec. Sec. 1503(b), 1506(a).
\48\Id. Sec. 1508(a); Stern, 564 U.S. at 491.
\49\H.R. 2426 Sec. 1508(b).
\50\Id. Sec. 1506(f)(3)(C); Stern v. Marshall, 564 U.S. 462, 491
(2011). For use of the term ``subject matter competence,'' see, e.g.,
Williams v. Metzler, 132 F.3d 937, 941 (3d Cir. 1997); Burns v. U.S.
R.R. Retirement Bd., 701 F.2d 189, 179 (D.C. Cir. 1983).
\51\H.R. 2426 1502; see Stern, 564 U.S. at 491; Schor, 478 U.S. at
855-56.
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D. Procedural Due Process
The CASE Act is drafted to meet the Due Process Clause's
guarantee of fundamental fairness in a federal proceeding. Due
Process is ``flexible . . . and it calls for such procedural
protections as the particular situation demands,'' which
include the basic requirements of personal jurisdiction,
notice, and the opportunity to be heard.\52\ The copyright
small claims process created by the CASE Act includes due
process protections appropriate for the context of a voluntary,
streamlined agency adjudicatory process, as described further
below.
---------------------------------------------------------------------------
\52\Jennings v. Rodriguez, 138 S. Ct. 830, 852 (2018); Mathews v.
Eldridge, 424 U.S. 319, 332-34 (1976).
---------------------------------------------------------------------------
First, the CASE Act is designed so that parties can
participate remotely in proceedings. Accordingly, because the
parties will not have to appear in person before the Board,
personal jurisdiction can be established by their minimum
relevant contacts within the United States and its territories,
as well as by their consent.\53\
---------------------------------------------------------------------------
\53\See Bristol-Myers Squibb Co. v. Superior Court of California,
San Francisco Cty., 137 S. Ct. 1773, 1785 (2017); J. McIntyre Mach.,
Ltd. v. Nicastro, 564 U.S. 873, 880 (2011) (plurality opinion); Ins.
Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694,
703-05 (1982); see generally 4 Fed. Prac. & Proc. Civ. Sec. 1068.1 (4th
ed.).
---------------------------------------------------------------------------
The Act's service of process provisions are modeled on Rule
4 of the Federal Rules of Civil Procedure, with the additional
protections that a claim must first be reviewed by a Claims
Attorney and, if the claim complies with the Act, service of
the claim must include a clear and prominent explanation of the
respondent's right to opt out of the proceeding and the rights
the respondent waives if it does not.\54\
---------------------------------------------------------------------------
\54\H.R. 2426 Sec. 1506.
---------------------------------------------------------------------------
The Act also requires that the parties have a meaningful
opportunity to be heard.\55\ If the parties are proceeding pro
se, their papers and assertions are construed liberally in
favor of adjudicating applicable claims and defenses; they may
in any event raise those defenses in their response to the
notice of claim, through documentary and testimonial evidence,
at telephonic or livestreamed hearings, and through written
submissions. Parties may conduct discovery and obtain
protective orders.\56\ Parties also have greater protection
against default than in federal court, as explained below.
---------------------------------------------------------------------------
\55\Compare the Act's provision of guidelines for the conduct of
proceedings under new Sec. 1506 with the procedural protections
described in Copyright Small Claims, supra note 20, at 47-48 and notes
therein.
\56\H.R. 2426 Sec. 1506.
---------------------------------------------------------------------------
The Act also provides multiple opportunities for the
parties to contest the Board's determinations. They may seek
reconsideration by the Board and review by the Register of
Copyrights.\57\ They may also seek review in federal district
court on grounds similar to those available under the Federal
Arbitration Act.\58\ Determinations are therefore reviewable
for violations of fundamental fairness.\59\
---------------------------------------------------------------------------
\57\Id. Sec. 1506(w)-(x).
\58\Compare id. Sec. 1508, with 9 U.S.C. Sec. 10; see also
Copyright Small Claims, supra note 20, at 78-79.
\59\Nat'l Football League Mgmt. Council v. Nat'l Football League
Players Ass'n, 820 F.3d 527, 545 (2d Cir. 2016).
---------------------------------------------------------------------------
III. INTENDED OPERATION OF THE CASE ACT
Consistent with Congress's intent that the CASE Act create
an alternative forum to district court litigation, many of the
terms and processes used in the Act are drawn from preexisting,
related state and federal statutory language, the Federal Rules
of Civil Procedure, and established case law. Notwithstanding
these antecedents, the statute is intended to create a novel
dispute resolution forum. The statute should be construed as a
whole and in light of its purposes to establish an efficient,
effective, and voluntary alternative forum where
unsophisticated parties can meaningfully and predictably
resolve their claims under the Copyright Act and with its
associated defenses.\60\
---------------------------------------------------------------------------
\60\See FCC v. AT&T, Inc., 562 U.S. 397, 407-09 (2011).
---------------------------------------------------------------------------
1. Federal Practice and Procedure
While principles of federal procedure are relevant to the
CASE Act, the Act is not intended to simply mimic federal
practice. The Act derives from the recognition that the cost
and complexity of litigating in federal court has made it
functionally impossible for many creators to meaningfully
enforce their rights. The Act also draws from the experience
and practices of state, international, and nongovernmental
small claims and alternative dispute resolution forums.\61\ The
Register of Copyrights should consider these various precedents
in implementing the CASE Act, taking advantage of the grant of
regulatory authority to create rules and procedures most
appropriate to create an efficient dispute resolution forum
that also affords due process protections.
---------------------------------------------------------------------------
\61\See, e.g., Copyright Small Claims, supra note 20, at 51-90.
---------------------------------------------------------------------------
As the Copyright Office report noted, ``[t]he hallmark of a
small claims proceeding is that traditional rules of civil
procedure are significantly relaxed in order to save litigants
effort and expense.''\62\ Similarly, ``even where more
traditional rules of procedure apply, they may be construed
liberally by the court so litigants are not intimidated by the
technicalities of formal court procedure.'' And, ``in most
small claims settings, judges significantly control the manner
in which a case proceeds, exercising considerable discretion
concerning the application of procedural and evidentiary
rules.''\63\ The Act is intended to embody these key
principles.
---------------------------------------------------------------------------
\62\Id. at 57.
\63\Id. at 57-58.
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To be sure, some principles common in federal practice may
also apply to proceedings before the Board. For example, the
understanding that documents filed by unrepresented parties
must be liberally construed and held to less stringent
standards than documents drafted by lawyers should apply to
Board proceedings, perhaps with even greater force.\64\ In
other words, the Board is required to consider the legal claims
and defenses presented by the facts of each case, even if the
parties have not pleaded each with the specificity that would
normally be expected in federal courts with parties represented
by counsel.
---------------------------------------------------------------------------
\64\Erickson v. Pardus, 551 U.S. 89, 94 (2007); Higgs v. Att'y
Gen., 655 F.3d 333, 339 (3rd Cir. 2011); Tracy v. Freshwater, 623 F.3d
90, 101 (2d Cir. 2010).
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Similarly, while Board proceedings can result in damages
awards upon a finding of liability, the Act reflects an intent
to encourage compromise and settlement.\65\ At least one
Copyright Claims Officer must have experience with alternative
dispute resolution, facilitating settlement is part of the
Board's statutory mandate, and the Act establishes a set of
rights and duties designed to promote compromise.\66\
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\65\See, e.g., Williams v. First Nat'l Bank, 216 U.S. 582, 595
(1910); Bano v. Union Carbide Corp., 273 F.3d 120, 129 (2d Cir. 2001);
cf. Fed. R. Civ. P. 68; 28 U.S.C. Sec. 651 et seq.
\66\H.R. 2426 Sec. Sec. 1502(b)(3)(A)(iii), 1503(a)(1)(f), 1506(r).
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The Act also creates a dispute resolution forum that is
subject-matter limited to copyright, in contrast to, for
example, the Federal Rules of Civil Procedure, which apply to
diverse civil claims. Thus, the Act reflects the understanding
that ``federal court procedural rules are not tuned to the
specific needs of copyright litigants'' and that the additional
requirements of the Copyright Act can multiply the cost and
complexity of a case.\67\ The optional and voluntary nature of
the copyright small claims process further distinguishes it
from mandatory federal court proceedings.\68\ Consequently, the
Copyright Office should consider these various factors when
determining the specific procedures needed to effectuate this
Act.
---------------------------------------------------------------------------
\67\Copyright Small Claims, supra note 20, at 16.
\68\See id. at 2-3.
\69\See, e.g., Atl. Recording Corp. v. Brennan, 534 F. Supp. 2d
278, 281 (D. Conn. 2008); Klemmer v. Evans, No. C-08-03732 JCS, 2009 WL
10695592, at *8 (N.D. Cal. Feb. 13, 2009); see generally 10A Fed. Prac.
& Proc. Civ. Sec. 2685 (4th ed.).
---------------------------------------------------------------------------
2. Default
The Act establishes a strong presumption against default
judgments. Defaults are disfavored in federal court, and courts
have denied motions for entry of default based on the presence
of a meritorious defense, including the defense of fair
use.\69\
Relative to federal courts, the Copyright Claims Board has
both more statutory authority and a greater obligation to
scrutinize the merits of a claim. Courts applying Federal Rule
of Civil Procedure 55 generally limit themselves to evaluating
the plaintiff's well-pleaded allegations and any materials
attached to the complaint, although they have discretion to go
beyond the pleadings.\70\ In contrast, Section 1506(u) created
under the CASE Act requires that the Copyright Claims Board
require the claimant, in addition to the pleadings, ``submit
relevant evidence and other information'' to support the claim
and any asserted damages. In cases where the respondent is
absent, the Board is expected to carefully scrutinize the
available evidence, and consistent with district court
practice, and consider applicable affirmative defenses such as
fair use, where warranted by the circumstances of the case.
Likewise, the claimant must provide evidence to prove damages
even if the respondent is not present.
---------------------------------------------------------------------------
\70\10A Fed. Prac. & Proc. Civ. Sec. 2688.1 (4th ed.).
---------------------------------------------------------------------------
3. Relationship to Substantive Copyright Law
The CASE Act establishes a voluntary and optional
alternative forum to hear small copyright claims; it does not
change the underlying law on which those claims are based. The
Act takes copyright law as it finds it: the Act does not alter
the substantive provisions of the Copyright Act or the case law
construing it, and the Board's determinations must follow
existing precedent.\71\ The Act also leaves copyright law as it
finds it: the determinations of the Board may not be cited or
relied upon, and the Board must dismiss claims that, among
other things, would require it to make truly novel case
law.\72\
---------------------------------------------------------------------------
\71\See H.R. 2426 Sec. 1503(b)(1).
\72\Id. Sec. Sec. 1507(a), 1507(c), 1506(f).
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The Act does, however, create greater limits on a
respondent's liability. The Copyright Claims Board is flatly
prohibited, for example, from enhancing statutory damages for
willful infringement, which plaintiffs often seek in federal
court.\73\ Under the Act, statutory damages are capped at
$15,000 per work.\74\ When determining damages, the Board is
also required to consider whether an infringing party has
agreed to cease or mitigate their infringing activity.\75\
Total damages are limited to $30,000 or less regardless of the
number of works at issue or the type of damages sought. In
contrast, the Copyright Act does not cap awards for actual
damages and profits and does not restrict the total amount that
can be recovered in a given case.\76\ The damages caps do not
alter existing law regarding calculating and proving damages,
nor do they prevent the Board from considering manifestly
unreasonable damage demands in the course of assessing whether
the claimant acted in bad faith.
---------------------------------------------------------------------------
\73\Id. Sec. 1504(e); see Ben Depoorter, Copyright Enforcement in
the Digital Age: When the Remedy is the Wrong, 66 UCLA L. Rev. 400, 418
(2019).
\74\Compare H.R. 2426 Sec. 1504(e), with 17 U.S.C. Sec. 504(c).
\75\H.R. 2426 Sec. 1504(e)(1)(A)(ii)(III).
\76\Id.
---------------------------------------------------------------------------
The CASE Act also takes a more liberal attitude towards the
commencement of a proceeding while registration of a work is in
progress.\77\ In federal court, registration is a prerequisite
to filing a lawsuit.\78\ While this rule is designed to
encourage prompt registration, the registration process can be
complex and expensive.\79\ Small claimants may not be aware of
the consequences of not registering in a timely manner, and
they may not be able to afford either the relatively high fee
to expedite registration or, if they produce numerous works,
even the initial registration fee.\80\ If they fail to timely
register, they cannot recover statutory damages in suits
brought in district court. Moreover, the legislative record
shows that many small claimants currently do not register their
works because they do not expect to be able to enforce their
rights in federal court.\81\
---------------------------------------------------------------------------
\77\See id. Sec. Sec. 1504(e), 1505. The claims processing rules
are found at 17 U.S.C. Sec. Sec. 411-412; see also Fourth Estate Pub.
Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 887 (2019); Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157-66 (2010).
\78\See Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC,
139 S. Ct. 881, 888 (2019).
\79\See Nimmer on Copyright Sec. 7.16[B]-[C]; see also id. Sec.
7.16[B] (noting that ``an elaborate scheme applies to registration as a
prerequisite to a suit for copyright infringement''); see also Fourth
Estate, 139 S. Ct. at 886; Copyright Small Claims, supra note 20, at 16
(``The registration requirement . . . is not as straightforward as it
may appear.'').
\80\See 17 U.S.C. Sec. 411(a); Fourth Estate, 139 S. Ct. at 887.
\81\See, e.g., Copyright Small Claims, supra note 20, at 17.
---------------------------------------------------------------------------
To address these dynamics, the Act permits participants in
the small claims process to bring a claim or counterclaim for
infringement so long as the owner has applied to register the
work and that application has not been denied.\82\ A work
registered outside the bounds of 17 U.S.C. 412 results in a
lower statutory damages cap of $7,500 per work, half of the
maximum award for a work that was timely registered.\83\ The
Board cannot, however, award any damages--statutory or
otherwise--or issue a determination until a registration has
been issued.\84\ This process is intended to strike a balance
between still encouraging timely registration of works with the
promise of a higher damages caps with the reality that smaller
creators may have numerous understandable reasons for not
routinely engaging in the registration process.
---------------------------------------------------------------------------
\82\H.R. 2426 Sec. 1505.
\83\Id. Sec. 1504(e).
\84\Id. Sec. 1505(b).
---------------------------------------------------------------------------
Hearings
The Committee on the Judiciary held no hearings on H.R.
2426 in the 116th Congress, but received testimony on this bill
from the Register of Copyrights, Karyn Temple, on June 26,
2019. In the 115th Congress the Committee on the Judiciary held
a legislative hearing on a previous version of this bill, H.R.
3945, on September 27, 2018.
Committee Consideration
On September 10, 2019, the Committee met in open session
and ordered the bill, H.R. 2426, favorably reported as amended,
by a voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that no
rollcall votes occurred during the Committee's consideration of
H.R. 2426.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
House of Representatives, are incorporated in the descriptive
portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 2426, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
H.R. 2426 would establish the Copyright Claims Board (CCB)
within the Copyright Office as a forum for parties to
voluntarily resolve small copyright claims. Under the bill, the
Library of Congress would appoint three copyright claims
officers, in consultation with the Copyright Office, to manage
CCB proceedings and to make judgements on copyright claims,
counterclaims, and defenses. H.R. 2426 would require the
Copyright Office to hire at least two copyright claims
attorneys and administrative support staff to assist those
officers, and to obtain necessary equipment and facilities.
Finally, the Copyright Office would need to conduct a study on
the use and efficacy of the CCB and report their findings to
the Congress.
Using information from the Copyright Office, CBO estimates
that in total implementing H.R. 2426 would cost $10 million
over the 2019-2024 period, assuming appropriation of the
estimated amounts.
CBO estimates that in 2020, the Copyright Office would
spend less than $500,000 to issue rules to establish the CCB.
In 2021, CBO estimates that the Copyright Office would spend
about $2 million on one-time costs such as a hearing room,
computers, and teleconferencing equipment. Salaries and other
reoccurring costs such as printing, postage, and maintaining
the case management system maintenance would cost $2 million a
year over the 2021-2024 period, CBO estimates.
H.R. 2426 would establish two new filing fees that certain
claimants would pay to access CCB services; those fees would be
credited to the Copyright Office's appropriation account as
discretionary offsetting collections.\1\ CBO cannot determine
the amount of CCB filing fees that would be collected under the
bill because the demand for CCB services is unclear. As a
result, CBO has not included an estimate of those fees in this
cost estimate. Any filing fees collected in a given year would
decrease net spending subject to appropriation.
---------------------------------------------------------------------------
\1\Under current law, any filing fee must be between $100 and $400;
these restrictions would apply to CCB filing fees.
---------------------------------------------------------------------------
On September 19, 2019, CBO transmitted a cost estimate for
S. 1273, the CASE Act of 2019, as reported by the Senate
Committee on the Judiciary on September 12, 2019. The two bills
are similar and CBO's estimated budgetary effects are the same
for both bills.
The CBO staff contact for this estimate is David Hughes.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
Duplication of Federal Programs
No provision of H.R. 2426 establishes or reauthorizes a
program of the federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
2426 would establish a voluntary and optional process, located
in the U.S. Copyright Office and overseen by a Copyright Claims
Board, to resolve small copyright claims.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2426 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title. Section 1 sets forth the short title
of the bill as the ``Copyright Alternative in Small-Claims
Enforcement Act of 2019'' or the ``CASE Act of 2019''.
Sec. 2. Copyright Small Claims. Section 2 amends title 17
of the United States Code to add a new chapter 15. The
following describes the sections comprising new chapter 15.
New Sec. 1501--Definitions. Section 1501 defines various
terms that appear in new chapter 15.
New Sec. 1502--Copyright Claims Board and Staff. Section
1502 establishes the Copyright Claims Board (``Board'') as a
voluntary alternative dispute resolution forum, located within
and supported by the U.S. Copyright Office, to resolve certain
copyright claims and sets forth the hiring, qualifications,
compensation, and terms of the Board and staff.
The Board consists of three experienced copyright
attorneys, called Copyright Claims Officers (``Claims
Officers''), appointed by the Librarian of Congress after
recommendation by the Register of Copyrights. Claims Officers
may be sanctioned or removed by the Librarian of Congress, in
consultation with the Register of Copyrights, limited only by
section 1503(b). The Librarian of Congress must act
expeditiously to fill any vacancy or, if an existing Claims
Officer temporarily cannot perform their duties, appoint an
interim Claims Officer.
The Claims Officers must have at least seven years of legal
experience. Two Claims Officers must have copyright litigation
or adjudication experience, and, taken together, must have
represented (or, if their experience is primarily adjudicatory,
presided over) a diversity of copyright interests. The third
Claims Officer must have both copyright and alternative dispute
resolution experience. This latter qualification is
particularly important, given the nature of proceedings before
the Claims Board and the Officers' statutory mandate to
facilitate settlement.\85\
---------------------------------------------------------------------------
\85\See Copyright Small Claims, supra note 20, at 130 (``[A]n
alternative small claims process could benefit substantially from a
decisionmaker who has meaningful background and experience in ADR.'').
---------------------------------------------------------------------------
The Claims Officers are paid at the level of compensation
for senior level (``SL'') government employees. They have six-
year terms, but their initial terms are staggered at four,
five, and six years. Their terms are renewable, but not
automatically so.\86\
---------------------------------------------------------------------------
\86\Compare H.R. 2426 Sec. 1502, with Copyright Small Claims, supra
note 20, at 134 (proposing automatically renewable terms).
---------------------------------------------------------------------------
The Claims Officers are assisted by two or more Copyright
Claims Attorneys (``Claims Attorneys''). The Claims Attorneys
must each have at least three years of copyright experience and
may be paid at up to grade 15 of the General Schedule for
government employees.
The Register of Copyrights must provide the Copyright
Claims Officers and Attorneys with the administrative and
technological support they need to carry out their duties. This
mandate should be construed with special regard to sections
1506(b) and (c), which make clear that, more than many fora,
the Board depends on up-to-date technology to function.
New Sec. 1503--Authority and Duties of the Copyright Claims
Board. Section 1503 sets forth the duties and powers of the
Copyright Claims Board.
Although subject to general direction by the Register of
Copyrights, the Board's determinations must be based only on
the record before it, preexisting judicial precedent, and the
provisions of the CASE Act and any applicable regulations.
Copyright Claims Officers and Attorneys may consult with the
Register of Copyrights regarding general issues of law, but the
Register's review of a proceeding is limited to the process
provided by section 1506(w).
Except in the case of unethical conduct, the substantive
result of Board determinations may not be used in the
performance appraisals of the Claims Officers or Attorneys.
The Claims Officers and Attorneys are barred from
inconsistent duties and subject to mandatory recusal under an
objective standard. The Claims Officers and the Register are
barred from ex parte communications related to active or
pending proceedings before the Board.
The actions of the Board and Register in connection with a
determination are subject to judicial review as specified in
Sec. 1508(c) rather than review provisions of the
Administrative Procedure Act.
New Sec. 1504--Nature of Proceedings. Section 1504
establishes that proceedings before the Board must be voluntary
and confirms that parties retain any preexisting right to
instead proceed in court or another adjudicatory forum if they
so choose. The right to bring a claim before the Board or to
opt out of the proceedings, as well as the rights, remedies,
and limitations under this section may not be waived unless the
waiver is made in accordance with the Act.
Section 1504(b) provides for a three-year statute of
limitations on bringing claims to the Board, and that bringing
such actions may toll the statute of limitations for bringing
suit in federal court under 17 U.S.C. Sec. 507.
Section 1504(c) sets forth the permissible claims,
counterclaims, defenses, and remedies available in Board
proceedings. Subject to applicable monetary limits, permissible
claims before the Board include a claim for infringement or a
declaration of non-infringement under 17 U.S.C. Sec. 106; a
claim of misrepresentation under Sec. 512(f) of the Digital
Millennium Copyright Act (``DMCA''); and certain limited
counterclaims. Parties may assert any legal or equitable
defenses to any such claims or counterclaims.
Claims can be brought by one or more claimants against one
or more respondents, but the claims must all arise out of the
same activity or a continuous course of conduct and total
damages cannot exceed the applicable monetary limits
established pursuant to Sec. 1504(e)(1). Some claims and
counterclaims are specifically excluded from Board
determination, such as claims that are already pending before
or adjudicated by a federal court, claims against a federal or
state governmental entity or claims against a person or entity
residing outside of the United States.
The Board can award actual damages and profits, which are
determined pursuant to 17 U.S.C. Sec. 504(b), or limited
statutory damages determined pursuant to 17 U.S.C. Sec. 504(c),
but which are capped at $15,000 per work for works timely
registered pursuant to 17 U.S.C. Sec. 412, and $7,500 per work
for works that are later registered under Section 1505. The
Board may not consider whether the infringement was willful in
assessing limited statutory damages, but it can take into
account a respondent's willingness or refusal to cease or
mitigate infringing activities, as well as any clause or
provision of 17 U.S.C. Sec. 504(c) not specifically prohibited
by the Act.
Before final determination, the claimant must elect either
actual damages and profits, limited statutory damages, or no
damages. This provision is intended to mirror the process
established by 17 U.S.C. Sec. 504. The total monetary award in
a single proceeding is capped at $30,000, exclusive of any
attorneys' fees and costs awarded for bad faith conduct under
Sec. 1506 (which are generally capped at $5,000 or $2,500 for
parties proceeding pro se).
In addition to monetary awards, the Board shall include in
its determination a requirement for a respondent to cease or
mitigate infringing conduct if the respondent has agreed to do
so. The Board may not issue injunctions. Each party shall bear
its own attorney fees and costs, except when the Board awards
the fees and costs because of bad faith litigation.
The Register of Copyrights may prescribe regulations as to
the number of cases that may be filed by a single claimant in a
given year. This provision functions as both a docket
management tool for the Board and as protection against abusive
conduct.
New Sec. 1505--Registration Requirement. A claim or
counterclaim for infringement cannot be asserted before the
Board unless the legal or beneficial owner of the copyright has
filed an application for registration, deposit, and required
fee with the Copyright Office and a registration certificate
has been issued or has not been refused. While the Board may
hold a proceeding with respect to the pending claim or claims
where a registration application is pending before the
Copyright Office, the Board may not render a determination
until a registration certificate is issued by the Copyright
Office.
If there is more than a one-year delay before a certificate
is granted, the Board may dismiss the proceeding without
prejudice. The Register may establish expedited proceedings to
process registration applications for works that are the
subject of a Board proceeding. Proceedings may be held in
abeyance automatically for up to one year pending submission of
a registration certificate. After one year, the Board may
dismiss the proceeding without prejudice upon notice and a 30-
day response period to the parties. The same presumption under
Sec. 410(c) applies for works registered not less than 5 years
after the date of publication. The Register is directed to
establish regulations concerning expedited registration
procedures for works before the Board.
New Sec. 1506--Conduct of Proceedings. Section 1506 sets
forth the Board proceedings in detail. In general, the Board is
directed to follow the legal precedents applicable in the
jurisdiction with the most connections to the claim. Subsection
(b) requires the Board to maintain records to document all
proceedings. Subsection (c) notes that no in-person appearances
are required and that video conferencing is encouraged.
Subsection (d) states that parties are not required to have
legal representation but may choose to have an attorney or a
pro bono legal clinic represent them.
Pursuant to subsection (e), a proceeding is commenced only
after a statement of material facts is filed by the claimant
along with the filing fee specified by the Register. Before a
claim is heard, subsection (f) requires that it must first be
reviewed by a Copyright Claims Attorney who has the authority
to require a refiling with specified deadlines if the original
filing does not comply with applicable regulations. Claims
shall be dismissed without prejudice if a claim cannot be heard
by the Board due to the failure to join a necessary party; the
lack of an essential witness, evidence or expert testimony; or
the determination of the claim imposes too great a burden upon
the Board or is beyond the subject matter competence of the
Board. Counterclaims are permissible after a similar review by
a Claims Attorney.
Pursuant to subsections (g) and (h), claims must be served
within 90 days of approval of the claim by a Board Attorney
using a standardized process and notice format established by
the Register. The notice shall contain a prominent statement
concerning the ability of a respondent to opt out within 60
days and the impact of not opting out. Several requirements
govern the service of the notice and waivers of personal
service, which are modeled on Rule 4 of the Federal Rules of
Civil Procedure. The Board may maintain its own list of
designated agents that have been submitted by corporations,
partnerships, or unincorporated associations. Personal service
may also be waived via returning a signed form to the Board, at
no cost to the Respondent. However, waiver of personal service
does not constitute waiver of the right to opt out. All service
of a claim and waiver of personal service may only occur within
the United States. The means of service for other documents are
governed by regulations established by the Register of
Copyrights pursuant to subsection (j).
The opt-out procedure in subsection (i) sets forth that
respondents have 60 calendar days to opt-out of the small
claims process after being served with the claim.
After the respondent does not opt out, the proceeding is
considered to be active pursuant to subsection (k) allowing for
scheduling of the proceeding in addition to conferences and
discovery authorized in subsection (l) to occur.
Subsections (m), (n), and (o) govern the materials and
evidence to be considered by the Board. Discovery shall occur
pursuant to regulations established by the Register. There is
no formal motion practice before the Board, although the Board
may request submissions sua sponte or at the request of parties
to the proceeding. Mandatory submission of discovery materials
is limited to the parties in the proceeding although the Board
may request voluntary submissions from non-parties. Any
confidential information may be covered by a protective order
to limit public disclosure. The Board may consider relevant
evidence to the claims in a proceeding including sworn
testimony. Expert witnesses are not permitted unless the Board
agrees that good cause can be shown for them.
Subsections (p), (q), (r), (s), and (t) provide the
statutory framework for how hearings are conducted including
potential voluntary dismissals and settlements. Conferences may
be held by one or more Officers which may be recorded or
transcribed to assist the other Board members as well as being
part of the claim record. Board determinations shall be made by
a majority of the Officers, in writing and based upon a
preponderance of the evidence standard. All determinations
shall be made publicly available although confidential
information shall be redacted. Information related to the
proceedings are exempt from disclosure under the Freedom of
Information Act.
Subsections (u) and (v) address proceedings that are not
able to proceed either due to a respondent's default or a
claimant's failure to proceed. Unless a justifiable cause can
be shown, a respondent can be found in default if they fail to
appear or cease to participate in a proceeding. If this occurs,
the Board shall prepare a proposed default determination after
a showing of sufficient evidence by the claimant and provide a
written notice with the proposed finding to the respondent and
give the respondent 30 days to provide information in
opposition to the proposed default determination. Such default
determination may only be challenged pursuant to Sec. 1508(c).
If a claimant fails to complete service, the claims against
each respondent with failed service shall be dismissed without
prejudice. If a claimant fails to prosecute, the Board may
dismiss the claim and award attorneys' fees and costs as
appropriate.
Requests for reconsideration are permitted in writing to
the Board within 30 days after the final determination,
pursuant to subsection (w). Pursuant to subsection (x), if the
request is refused by the Board, a party may appeal for a
review by the Register of Copyrights who shall determine if the
Board abused its discretion in denying reconsideration and, if
abuse is found, remand the claim to the Board for specific
issues identified in the remand.
Subsection (y) authorizes actions by the Register and the
Board to take specific actions in order to address bad faith
conduct through awarding attorneys' fees, costs, and financial
sanctions in the amount of up to $5,000 ($2,500 if the
adversely affected party appeared pro se) or higher in cases of
extraordinary circumstances or where a pattern or practice of
bad faith conduct has occurred. Parties can also be barred from
Board proceedings if, on more than one occasion within a 12-
month period, they come before the Board for a harassing or
other improper purpose. If such abuse is found by the Board,
the party is then banned from initiating a claim before the
Board for an additional 12 months from the date of the finding,
and all pending proceedings are dismissed without prejudice
(upon the respondent's consent, if the proceeding is active).
The Register of Copyrights is also directed to establish
additional regulations to hear claims below $5,000, exclusive
of any attorney's fees and costs, by one Claims Officer. These
regulations are to be consistent with the regulations that
apply to larger claims filed with the Board.
New Sec. 1507--Effect of Proceeding. Section 1507 provides
that a final determination precludes re-litigation of the
claims and counterclaims before any court, tribunal or the
Board as to the same parties, but it does not preclude
litigation of the same issues of fact or law not finally
determined by the Board. Determinations of the Board may not be
cited or relied upon as legal precedent. A court reviewing a
determination under Sec. 1508 may, however, cite that
determination.
A proceeding before the Claims Board shall have no effect
on a class action proceeding. A party to a proceeding who
receives notice of a pending class action may opt out of the
class action.
If a claimant who has a proceeding concerning material
subject to a DMCA takedown notice timely notifies the service
provider of the proceeding, the proceeding will satisfy
Sec. 512(g) of the DMCA, 17 U.S.C. Sec. 512(g), and preclude
the service provider from replacing the material that was
subject to the takedown notice.
A federal court will stay proceedings or order other
appropriate relief when a party files a claim that is already
the subject of an active proceeding before the Board. There are
no compulsory counterclaims before the Board, and failure to
plead a counterclaim has no preclusive effect.
If a party opts out or is dismissed from a proceeding
before the issuance of a final determination, the determination
shall not be binding upon the party.
New Sec. 1508--Review and Confirmation by District Court.
Subject to meeting specified filing procedures, a party may
seek enforcement in an appropriate U.S. district court if the
other party has failed to pay damages awarded by the Board or
otherwise failed to comply with the relief awarded in a final
determination. Within 90 days of a final determination by the
Board, a party to the proceeding may seek an order vacating,
modifying, or correcting a determination of the Board if it was
issued as a result of fraud, corruption, or other misconduct;
if the Board exceeded its authority; or if excusable neglect
causes the issuance of a default determination. Case law
construing parallel provisions of the Federal Arbitration Act,
9 U.S.C. Sec. 10, may be instructive in further elucidating the
scope of this limited right to appeal to federal court.
New Sec. 1509--Relationship to Other District Court
Actions. Section 1509 provides that a district court must issue
a stay of proceedings if the claim is already the subject of a
pending or active proceeding before the Board. The Board
qualifies as an alternative dispute resolution process under 28
U.S.C. Sec. 651 for purposes of referring cases from the
federal courts.
New Sec. 1510--Implementation by Copyright Office. Section
1510 gives the Register of Copyrights regulatory and fee-
setting authority to implement the copyright small claims
proceedings. The Register has flexibility to vary fee amounts
and the timing when fees are assessed to effectuate the
purposes of the Act. The Register is also given rulemaking
authority to adjust the limits on monetary recovery or attorney
fees no earlier than three years after the Board issues its
first determination. The Register may retain outside vendors to
establish the necessary operational facilities.
New Sec. 1511--Funding. Section 1511 authorizes
appropriations to fund the Board and also makes certain
clerical amendments.
Sec. 3. Implementation. Section 3 provides that the Board
is to begin operations not later than one year after the
enactment of the Act.
Sec. 4. Study. Section 4 requires that, within three years
of the Board's issuance of its first determination, the
Register is to conduct a study and report to Congress on the
use and efficacy of the Board and other recommendations to
adjust the Board, such as the scope of eligible claims, work
and damage limitations, the awarding of attorneys' fees and
costs, and other possible mechanisms to assist small copyright
holders.
Sec. 5. Severability. Section 5 provides that if any
provision or application of the Act is held to be
unconstitutional, the remaining provisions or applications of
the Act retain legal force and effect.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, H.R. 2426, as reported, are shown as follows:
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
TITLE 17, UNITED STATES CODE
Chap. Sec.
Subject Matter and Scope of Copyright..........................101
* * * * * * *
1501Copyright Small Claims............................................
* * * * * * *
CHAPTER 15--COPYRIGHT SMALL CLAIMS
Sec.
1501. Definitions.
1502. Copyright Claims Board.
1503. Authority and duties of the Copyright Claims Board.
1504. Nature of proceedings.
1505. Registration requirement.
1506. Conduct of proceedings.
1507. Effect of proceeding.
1508. Review and confirmation by district court.
1509. Relationship to other district court actions.
1510. Implementation by Copyright Office.
1511. Funding.
Sec. 1501. Definitions
In this chapter--
(1) the term ``party''--
(A) means a party; and
(B) includes the attorney of a party, as
applicable;
(2) the term ``claimant'' means the real party in
interest that commences a proceeding before the
Copyright Claims Board under section 1506(e), pursuant
to a permissible claim of infringement brought under
section 1504(c)(1), noninfringement brought under
section 1504(c)(2), or misrepresentation brought under
section 1504(c)(3);
(3) the term ``counterclaimant'' means a respondent
in a proceeding before the Copyright Claims Board
that--
(A) asserts a permissible counterclaim under
section 1504(c)(4) against the claimant in the
proceeding; and
(B) is the real party in interest with
respect to the counterclaim described in
subparagraph (A); and
(4) the term ``respondent'' means any person against
whom a proceeding is brought before the Copyright
Claims Board under section 1506(e), pursuant to a
permissible claim of infringement brought under section
1504(c)(1), noninfringement brought under section
1504(c)(2), or misrepresentation brought under section
1504(c)(3).
Sec. 1502. Copyright Claims Board
(a) In General.--There is established in the Copyright Office
the Copyright Claims Board, which shall serve as an alternative
forum in which parties may voluntarily seek to resolve certain
copyright claims regarding any category of copyrighted work, as
provided in this chapter.
(b) Officers and Staff.--
(1) Copyright claims officers.--The Register of
Copyrights shall recommend 3 full-time Copyright Claims
Officers to serve on the Copyright Claims Board in
accordance with paragraph (3)(A). The Officers shall be
appointed by the Librarian of Congress to such
positions after consultation with the Register of
Copyrights.
(2) Copyright claims attorneys.--The Register of
Copyrights shall hire not fewer than 2 full-time
Copyright Claims Attorneys to assist in the
administration of the Copyright Claims Board.
(3) Qualifications.--
(A) Copyright claims officers.--
(i) In general.--Each Copyright
Claims Officer shall be an attorney who
has not fewer than 7 years of legal
experience.
(ii) Experience.--Two of the
Copyright Claims Officers shall have--
(I) substantial experience in
the evaluation, litigation, or
adjudication of copyright
infringement claims; and
(II) between those 2
Officers, have represented or
presided over a diversity of
copyright interests, including
those of both owners and users
of copyrighted works.
(iii) Alternative dispute
resolution.--The Copyright Claims
Officer not described in clause (ii)
shall have substantial familiarity with
copyright law and experience in the
field of alternative dispute
resolution, including the resolution of
litigation matters through that method
of resolution.
(B) Copyright claims attorneys.--Each
Copyright Claims Attorney shall be an attorney
who has not fewer than 3 years of substantial
experience in copyright law.
(4) Compensation.--
(A) Copyright claims officers.--
(i) Definition.--In this
subparagraph, the term ``senior level
employee of the Federal Government''
means an employee, other than an
employee in the Senior Executive
Service, the position of whom is
classified above GS-15 of the General
Schedule.
(ii) Pay range.--Each Copyright
Claims Officer shall be compensated at
a rate of pay that is not less than the
minimum, and not more than the maximum,
rate of pay payable for senior level
employees of the Federal Government,
including locality pay, as applicable.
(B) Copyright claims attorneys.--Each
Copyright Claims Attorney shall be compensated
at a rate of pay that is not more than the
maximum rate of pay payable for level 10 of GS-
15 of the General Schedule, including locality
pay, as applicable.
(5) Terms.--
(A) In general.--Subject to subparagraph (B),
a Copyright Claims Officer shall serve for a
renewable term of 6 years.
(B) Initial terms.--The terms for the first
Copyright Claims Officers appointed under this
chapter shall be as follows:
(i) The first such Copyright Claims
Officer appointed shall be appointed
for a term of 4 years.
(ii) The second Copyright Claims
Officer appointed shall be appointed
for a term of 5 years.
(iii) The third Copyright Claims
Officer appointed shall be appointed
for a term of 6 years.
(6) Vacancies and incapacity.--
(A) Vacancy.--
(i) In general.--If a vacancy occurs
in the position of a Copyright Claims
Officer, the Librarian of Congress
shall, upon the recommendation of and
in consultation with the Register of
Copyrights, act expeditiously to
appoint a Copyright Claims Officer for
that position.
(ii) Vacancy before expiration.--An
individual appointed to fill a vacancy
occurring before the expiration of the
term for which the predecessor of the
individual was appointed shall be
appointed to serve a 6-year term.
(B) Incapacity.--If a Copyright Claims
Officer is temporarily unable to perform the
duties of the Officer, the Librarian of
Congress shall, upon recommendation of and in
consultation with the Register of Copyrights,
act expeditiously to appoint an interim
Copyright Claims Officer to perform such duties
during the period of such incapacity.
(7) Sanction or removal.--Subject to section 1503(b),
the Librarian of Congress may sanction or remove a
Copyright Claims Officer.
(8) Administrative support.--The Register of
Copyrights shall provide the Copyright Claims Officers
and Copyright Claims Attorneys with necessary
administrative support, including technological
facilities, to carry out the duties of the Officers and
Attorneys under this chapter.
(9) Location of copyright claims board.--The offices
and facilities of the Copyright Claims Officers and
Copyright Claims Attorneys shall be located at the
Copyright Office.
Sec. 1503. Authority and duties of the Copyright Claims Board
(a) Functions.--
(1) Copyright claims officers.--Subject to the
provisions of this chapter and applicable regulations,
the functions of the Copyright Claims Officers shall be
as follows:
(A) To render determinations on the civil
copyright claims, counterclaims, and defenses
that may be brought before the Officers under
this chapter.
(B) To ensure that claims, counterclaims, and
defenses are properly asserted and otherwise
appropriate for resolution by the Copyright
Claims Board.
(C) To manage the proceedings before the
Officers and render rulings pertaining to the
consideration of claims, counterclaims, and
defenses, including with respect to scheduling,
discovery, evidentiary, and other matters.
(D) To request, from participants and
nonparticipants in a proceeding, the production
of information and documents relevant to the
resolution of a claim, counterclaim, or
defense.
(E) To conduct hearings and conferences.
(F) To facilitate the settlement by the
parties of claims and counterclaims.
(G)(i) To award monetary relief; and
(ii) to include in the determinations of the
Officers a requirement that certain activities
under section 1504(e)(2) cease or be mitigated,
if the party to undertake the applicable
measure has so agreed.
(H) To provide information to the public
concerning the procedures and requirements of
the Copyright Claims Board.
(I) To maintain records of the proceedings
before the Officers, certify official records
of such proceedings as needed, and, as provided
in section 1506(t), make the records in such
proceedings available to the public.
(J) To carry out such other duties as are set
forth in this chapter.
(K) When not engaged in performing the duties
of the Officers set forth in this chapter, to
perform such other duties as may be assigned by
the Register of Copyrights.
(2) Copyright claims attorneys.--Subject to the
provisions of this chapter and applicable regulations,
the functions of the Copyright Claims Attorneys shall
be as follows:
(A) To provide assistance to the Copyright
Claims Officers in the administration of the
duties of those Officers under this chapter.
(B) To provide assistance to members of the
public with respect to the procedures and
requirements of the Copyright Claims Board.
(C) To provide information to potential
claimants contemplating bringing a permissible
action before the Copyright Claims Board about
obtaining a subpoena under section 512(h) for
the sole purpose of identifying a potential
respondent in such an action.
(D) When not engaged in performing the duties
of the Attorneys set forth in this chapter, to
perform such other duties as may be assigned by
the Register of Copyrights.
(b) Independence in Determinations.--
(1) In general.--The Copyright Claims Board shall
render the determinations of the Board in individual
proceedings independently on the basis of the records
in the proceedings before it and in accordance with the
provisions of this title, judicial precedent, and
applicable regulations of the Register of Copyrights.
(2) Consultation.--The Copyright Claims Officers and
Copyright Claims Attorneys--
(A) may consult with the Register of
Copyrights on general issues of law; and
(B) subject to section 1506(x), may not
consult with the Register of Copyrights with
respect to--
(i) the facts of any particular
matter pending before the Officers and
the Attorneys; or
(ii) the application of law to the
facts described in clause (i).
(3) Performance appraisals.--Notwithstanding any
other provision of law or any regulation or policy of
the Library of Congress or Register of Copyrights, any
performance appraisal of a Copyright Claims Officer or
Copyright Claims Attorney may not consider the
substantive result of any individual determination
reached by the Copyright Claims Board as a basis for
appraisal except to the extent that result may relate
to any actual or alleged violation of an ethical
standard of conduct.
(c) Direction by Register.--Subject to subsection (b), the
Copyright Claims Officers and Copyright Claims Attorneys shall,
in the administration of their duties, be under the general
direction of the Register of Copyrights.
(d) Inconsistent Duties Barred.--A Copyright Claims Officer
or Copyright Claims Attorney may not undertake any duty that
conflicts with the duties of the Officer or Attorney in
connection with the Copyright Claims Board.
(e) Recusal.--A Copyright Claims Officer or Copyright Claims
Attorney shall recuse himself or herself from participation in
any proceeding with respect to which the Copyright Claims
Officer or Copyright Claims Attorney, as the case may be, has
reason to believe that he or she has a conflict of interest.
(f) Ex Parte Communications.--Except as may otherwise be
permitted by applicable law, any party to a proceeding before
the Copyright Claims Board shall refrain from ex parte
communications with the Copyright Claims Officers and the
Register of Copyrights concerning the substance of any active
or pending proceeding before the Copyright Claims Board.
(g) Judicial Review.--Actions of the Copyright Claims
Officers and Register of Copyrights under this chapter in
connection with the rendering of any determination are subject
to judicial review as provided under section 1508(c) and not
under chapter 7 of title 5.
Sec. 1504. Nature of proceedings
(a) Voluntary Participation.--Participation in a Copyright
Claims Board proceeding shall be on a voluntary basis in
accordance with this chapter and the right of any party to
instead pursue a claim, counterclaim, or defense in a district
court of the United States or any other court, and to seek a
jury trial, shall be preserved. The rights, remedies, and
limitations under this section may not be waived except in
accordance with this chapter.
(b) Statute of Limitations.--
(1) In general.--A proceeding may not be maintained
before the Copyright Claims Board unless the proceeding
is commenced, in accordance with section 1506(e),
before the Copyright Claims Board within 3 years after
the claim accrued.
(2) Tolling.--Subject to section 1507(a), a
proceeding commenced before the Copyright Claims Board
shall toll the time permitted under section 507(b) for
the commencement of an action on the same claim in a
district court of the United States during the period
in which the proceeding is pending.
(c) Permissible Claims, Counterclaims, and Defenses.--The
Copyright Claims Board may render determinations with respect
to the following claims, counterclaims, and defenses, subject
to such further limitations and requirements, including with
respect to particular classes of works, as may be set forth in
regulations established by the Register of Copyrights:
(1) A claim for infringement of an exclusive right in
a copyrighted work provided under section 106 by the
legal or beneficial owner of the exclusive right at the
time of the infringement for which the claimant seeks
damages, if any, within the limitations set forth in
subsection (e)(1).
(2) A claim for a declaration of noninfringement of
an exclusive right in a copyrighted work provided under
section 106, consistent with section 2201 of title 28.
(3) A claim under section 512(f) for
misrepresentation in connection with a notification of
claimed infringement or a counter notification seeking
to replace removed or disabled material, except that
any remedies relating to such a claim in a proceeding
before the Copyright Claims Board shall be limited to
those available under this chapter.
(4) A counterclaim that is asserted solely against
the claimant in a proceeding--
(A) pursuant to which the counterclaimant
seeks damages, if any, within the limitations
set forth in subsection (e)(1); and
(B) that--
(i) arises under section 106 or
section 512(f) and out of the same
transaction or occurrence that is the
subject of a claim of infringement
brought under paragraph (1), a claim of
noninfringement brought under paragraph
(2), or a claim of misrepresentation
brought under paragraph (3); or
(ii) arises under an agreement
pertaining to the same transaction or
occurrence that is the subject of a
claim of infringement brought under
paragraph (1), if the agreement could
affect the relief awarded to the
claimant.
(5) A legal or equitable defense under this title or
otherwise available under law, in response to a claim
or counterclaim asserted under this subsection.
(6) A single claim or multiple claims permitted under
paragraph (1), (2), or (3) by one or more claimants
against one or more respondents, but only if all claims
asserted in any one proceeding arise out of the same
allegedly infringing activity or continuous course of
infringing activities and do not, in the aggregate,
result in the recovery of such claim or claims for
damages that exceed the limitations under subsection
(e)(1).
(d) Excluded Claims.--The following claims and counterclaims
are not subject to determination by the Copyright Claims Board:
(1) A claim or counterclaim that is not a permissible
claim or counterclaim under subsection (c).
(2) A claim or counterclaim that has been finally
adjudicated by a court of competent jurisdiction or
that is pending before a court of competent
jurisdiction, unless that court has granted a stay to
permit that claim or counterclaim to proceed before the
Copyright Claims Board.
(3) A claim or counterclaim by or against a Federal
or State governmental entity.
(4) A claim or counterclaim asserted against a person
or entity residing outside of the United States, except
in a case in which the person or entity initiated the
proceeding before the Copyright Claims Board and is
subject to counterclaims under this chapter.
(e) Permissible Remedies.--
(1) Monetary recovery.--
(A) Actual damages, profits, and statutory
damages for infringement.--With respect to a
claim or counterclaim for infringement of
copyright, and subject to the limitation on
total monetary recovery under subparagraph (D),
the Copyright Claims Board may award either of
the following:
(i) Actual damages and profits
determined in accordance with section
504(b), with that award taking into
consideration, in appropriate cases,
whether the infringing party has agreed
to cease or mitigate the infringing
activity under paragraph (2).
(ii) Statutory damages, which shall
be determined in accordance with
section 504(c), subject to the
following conditions:
(I) With respect to works
timely registered under section
412, so that the works are
eligible for an award of
statutory damages in accordance
with that section, the
statutory damages may not
exceed $15,000 for each work
infringed.
(II) With respect to works
not timely registered under
section 412, but eligible for
an award of statutory damages
under this section, statutory
damages may not exceed $7,500
per work infringed, or a total
of $15,000 in any 1 proceeding.
(III) The Copyright Claims
Board may not make any finding
that, or consider whether, the
infringement was committed
willfully in making an award of
statutory damages.
(IV) The Copyright Claims
Board may consider, as an
additional factor in awarding
statutory damages, whether the
infringer has agreed to cease
or mitigate the infringing
activity under paragraph (2).
(B) Election of damages.--With respect to a
claim or counterclaim of infringement, at any
time before final determination is rendered,
and notwithstanding the schedule established by
the Copyright Claims Board under section
1506(k), the claimant or counterclaimant shall
elect--
(i) to recover actual damages and
profits or statutory damages under
subparagraph (A); or
(ii) not to recover damages.
(C) Damages for other claims.--Damages for
claims and counterclaims other than
infringement claims, such as those brought
under section 512(f), shall be subject to the
limitation under subparagraph (D).
(D) Limitation on total monetary recovery.--
Notwithstanding any other provision of law, a
party that pursues any one or more claims or
counterclaims in any single proceeding before
the Copyright Claims Board may not seek or
recover in that proceeding a total monetary
recovery that exceeds the sum of $30,000,
exclusive of any attorneys' fees and costs that
may be awarded under section 1506(y)(2).
(2) Agreement to cease certain activity.--In a
determination of the Copyright Claims Board, the Board
shall include a requirement to cease conduct if, in the
proceeding relating to the determination--
(A) a party agrees--
(i) to cease activity that is found
to be infringing, including removing or
disabling access to, or destroying,
infringing materials; or
(ii) to cease sending a takedown
notice or counter notice under section
512 to the other party regarding the
conduct at issue before the Board if
that notice or counter notice was found
to be a knowing material
misrepresentation under section 512(f);
and
(B) the agreement described in subparagraph
(A) is reflected in the record for the
proceeding.
(3) Attorneys' fees and costs.--Notwithstanding any
other provision of law, except in the case of bad faith
conduct as provided in section 1506(y)(2), the parties
to proceedings before the Copyright Claims Board shall
bear their own attorneys' fees and costs.
(f) Joint and Several Liability.--Parties to a proceeding
before the Copyright Claims Board may be found jointly and
severally liable if all such parties and relevant claims or
counterclaims arise from the same activity or activities.
(g) Permissible Number of Cases.--The Register of Copyrights
may establish regulations relating to the permitted number of
proceedings each year by the same claimant under this chapter,
in the interests of justice and the administration of the
Copyright Claims Board.
Sec. 1505. Registration requirement
(a) Application or Certificate.--A claim or counterclaim
alleging infringement of an exclusive right in a copyrighted
work may not be asserted before the Copyright Claims Board
unless--
(1) the legal or beneficial owner of the copyright
has first delivered a completed application, a deposit,
and the required fee for registration of the copyright
to the Copyright Office; and
(2) a registration certificate has either been issued
or has not been refused.
(b) Certificate of Registration.--Notwithstanding any other
provision of law, a claimant or counterclaimant in a proceeding
before the Copyright Claims Board shall be eligible to recover
actual damages and profits or statutory damages under this
chapter for infringement of a work if the requirements of
subsection (a) have been met, except that--
(1) the Copyright Claims Board may not render a
determination in the proceeding until--
(A) a registration certificate with respect
to the work has been issued by the Copyright
Office, submitted to the Copyright Claims
Board, and made available to the other parties
to the proceeding; and
(B) the other parties to the proceeding have
been provided an opportunity to address the
registration certificate;
(2) if the proceeding may not proceed further because
a registration certificate for the work is pending, the
proceeding shall be held in abeyance pending submission
of the certificate to the Copyright Claims Board,
except that, if the proceeding is held in abeyance for
more than 1 year, the Copyright Claims Board may, upon
providing written notice to the parties to the
proceeding, and 30 days to the parties to respond to
the notice, dismiss the proceeding without prejudice;
and
(3) if the Copyright Claims Board receives notice
that registration with respect to the work has been
refused, the proceeding shall be dismissed without
prejudice.
(c) Presumption.--In a case in which a registration
certificate shows that registration with respect to a work was
issued not later than 5 years after the date of the first
publication of the work, the presumption under section 410(c)
shall apply in a proceeding before the Copyright Claims Board,
in addition to relevant principles of law under this title.
(d) Regulations.--In order to ensure that actions before the
Copyright Claims Board proceed in a timely manner, the Register
of Copyrights shall establish regulations allowing the
Copyright Office to make a decision, on an expedited basis, to
issue or deny copyright registration for an unregistered work
that is at issue before the Board.
Sec. 1506. Conduct of proceedings
(a) In General.--
(1) Applicable law.--Proceedings of the Copyright
Claims Board shall be conducted in accordance with this
chapter and regulations established by the Register of
Copyrights under this chapter, in addition to relevant
principles of law under this title.
(2) Conflicting precedent.--If it appears that there
may be conflicting judicial precedent on an issue of
substantive copyright law that cannot be reconciled,
the Copyright Claims Board shall follow the law of the
Federal jurisdiction in which the action could have
been brought if filed in a district court of the United
States, or, if the action could have been brought in
more than 1 such jurisdiction, the jurisdiction that
the Copyright Claims Board determines has the most
significant ties to the parties and conduct at issue.
(b) Record.--The Copyright Claims Board shall maintain
records documenting the proceedings before the Board.
(c) Centralized Process.--Proceedings before the Copyright
Claims Board shall--
(1) be conducted at the offices of the Copyright
Claims Board without the requirement of in-person
appearances by parties or others; and
(2) take place by means of written submissions,
hearings, and conferences carried out through internet-
based applications and other telecommunications
facilities, except that, in cases in which physical or
other nontestimonial evidence material to a proceeding
cannot be furnished to the Copyright Claims Board
through available telecommunications facilities, the
Copyright Claims Board may make alternative
arrangements for the submission of such evidence that
do not prejudice any other party to the proceeding.
(d) Representation.--A party to a proceeding before the
Copyright Claims Board may be, but is not required to be,
represented by--
(1) an attorney; or
(2) a law student who is qualified under applicable
law governing representation by law students of parties
in legal proceedings and who provides such
representation on a pro bono basis.
(e) Commencement of Proceeding.--In order to commence a
proceeding under this chapter, a claimant shall, subject to
such additional requirements as may be prescribed in
regulations established by the Register of Copyrights, file a
claim with the Copyright Claims Board, that--
(1) includes a statement of material facts in support
of the claim;
(2) is certified under subsection (y)(1); and
(3) is accompanied by a filing fee in such amount as
may be prescribed in regulations established by the
Register of Copyrights.
(f) Review of Claims and Counterclaims.--
(1) Claims.--Upon the filing of a claim under
subsection (e), the claim shall be reviewed by a
Copyright Claims Attorney to ensure that the claim
complies with this chapter and applicable regulations,
subject to the following:
(A) If the claim is found to comply, the
claimant shall be notified regarding that
compliance and instructed to proceed with
service of the claim under subsection (g).
(B) If the claim is found not to comply, the
claimant shall be notified that the claim is
deficient and be permitted to file an amended
claim not later than 30 days after the date on
which the claimant receives the notice, without
the requirement of an additional filing fee. If
the claimant files a compliant claim within
that 30-day period, the claimant shall be so
notified and be instructed to proceed with
service of the claim. If the claim is refiled
within that 30-day period and still fails to
comply, the claimant shall again be notified
that the claim is deficient and shall be
provided a second opportunity to amend the
claim within 30 days after the date of that
second notice, without the requirement of an
additional filing fee. If the claim is refiled
again within that second 30-day period and is
compliant, the claimant shall be so notified
and shall be instructed to proceed with service
of the claim, but if the claim still fails to
comply, upon confirmation of such noncompliance
by a Copyright Claims Officer, the proceeding
shall be dismissed without prejudice. The
Copyright Claims Board shall also dismiss
without prejudice any proceeding in which a
compliant claim is not filed within the
applicable 30-day period.
(C)(i) Subject to clause (ii), for purposes
of this paragraph, a claim against an online
service provider for infringement by reason of
the storage of or referral or linking to
infringing material that may be subject to the
limitations on liability set forth in
subsection (b), (c), or (d) of section 512
shall be considered noncompliant unless the
claimant affirms in the statement required
under subsection (e)(1) of this section that
the claimant has previously notified the
service provider of the claimed infringement in
accordance with subsection (b)(2)(E), (c)(3),
or (d)(3) of section 512, as applicable, and
the service provider failed to remove or
disable access to the material expeditiously
upon the provision of such notice.
(ii) If a claim is found to be noncompliant
under clause (i), the Copyright Claims Board
shall provide the claimant with information
concerning the service of such a notice under
the applicable provision of section 512.
(2) Counterclaims.--Upon the filing and service of a
counterclaim, the counterclaim shall be reviewed by a
Copyright Claims Attorney to ensure that the
counterclaim complies with the provisions of this
chapter and applicable regulations. If the counterclaim
is found not to comply, the counterclaimant and the
other parties to the proceeding shall be notified that
the counterclaim is deficient, and the counterclaimant
shall be permitted to file and serve an amended
counterclaim within 30 days after the date of such
notice. If the counterclaimant files and serves a
compliant counterclaim within that 30-day period, the
counterclaimant and such other parties shall be so
notified. If the counterclaim is refiled and served
within that 30-day period but still fails to comply,
the counterclaimant and such other parties shall again
be notified that the counterclaim is deficient, and the
counterclaimant shall be provided a second opportunity
to amend the counterclaim within 30 days after the date
of the second notice. If the counterclaim is refiled
and served again within that second 30-day period and
is compliant, the counterclaimant and such other
parties shall be so notified, but if the counterclaim
still fails to comply, upon confirmation of such
noncompliance by a Copyright Claims Officer, the
counterclaim, but not the proceeding, shall be
dismissed without prejudice.
(3) Dismissal for unsuitability.--The Copyright
Claims Board shall dismiss a claim or counterclaim
without prejudice if, upon reviewing the claim or
counterclaim, or at any other time in the proceeding,
the Copyright Claims Board concludes that the claim or
counterclaim is unsuitable for determination by the
Copyright Claims Board, including on account of any of
the following:
(A) The failure to join a necessary party.
(B) The lack of an essential witness,
evidence, or expert testimony.
(C) The determination of a relevant issue of
law or fact that could exceed either the number
of proceedings the Copyright Claims Board could
reasonably administer or the subject matter
competence of the Copyright Claims Board.
(g) Service of Notice and Claims.--In order to proceed with a
claim against a respondent, a claimant shall, within 90 days
after receiving notification under subsection (f) to proceed
with service, file with the Copyright Claims Board proof of
service on the respondent. In order to effectuate service on a
respondent, the claimant shall cause notice of the proceeding
and a copy of the claim to be served on the respondent, either
by personal service or pursuant to a waiver of personal
service, as prescribed in regulations established by the
Register of Copyrights. Such regulations shall include the
following requirements:
(1) The notice of the proceeding shall adhere to a
prescribed form and shall set forth the nature of the
Copyright Claims Board and proceeding, the right of the
respondent to opt out, and the consequences of opting
out and not opting out, including a prominent statement
that, by not opting out within 60 days after receiving
the notice, the respondent--
(A) loses the opportunity to have the dispute
decided by a court created under article III of
the Constitution of the United States; and
(B) waives the right to a jury trial
regarding the dispute.
(2) The copy of the claim served on the respondent
shall be the same as the claim that was filed with the
Copyright Claims Board.
(3) Personal service of a notice and claim may be
effected by an individual who is not a party to the
proceeding and is older than 18 years of age.
(4) An individual, other than a minor or incompetent
individual, may be served by--
(A) complying with State law for serving a
summons in an action brought in courts of
general jurisdiction in the State where service
is made;
(B) delivering a copy of the notice and claim
to the individual personally;
(C) leaving a copy of the notice and claim at
the individual's dwelling or usual place of
abode with someone of suitable age and
discretion who resides there; or
(D) delivering a copy of the notice and claim
to an agent designated by the respondent to
receive service of process or, if not so
designated, an agent authorized by appointment
or by law to receive service of process.
(5)(A) A corporation, partnership, or unincorporated
association that is subject to suit in courts of
general jurisdiction under a common name shall be
served by delivering a copy of the notice and claim to
its service agent. If such service agent has not been
designated, service shall be accomplished--
(i) by complying with State law for serving a
summons in an action brought in courts of
general jurisdiction in the State where service
is made; or
(ii) by delivering a copy of the notice and
claim to an officer, a managing or general
agent, or any other agent authorized by
appointment or by law to receive service of
process in an action brought in courts of
general jurisdiction in the State where service
is made and, if the agent is one authorized by
statute and the statute so requires, by also
mailing a copy of the notice and claim to the
respondent.
(B) A corporation, partnership or unincorporated
association that is subject to suit in courts of
general jurisdiction under a common name may elect to
designate a service agent to receive notice of a claim
against it before the Copyright Claims Board by
complying with requirements that the Register of
Copyrights shall establish by regulation. The Register
of Copyrights shall maintain a current directory of
service agents that is available to the public for
inspection, including through the internet, and may
require such corporations, partnerships, and
unincorporated associations designating such service
agents to pay a fee to cover the costs of maintaining
the directory.
(6) In order to request a waiver of personal service,
the claimant may notify a respondent, by first class
mail or by other reasonable means, that a proceeding
has been commenced, such notice to be made in
accordance with regulations established by the Register
of Copyrights, subject to the following:
(A) Any such request shall be in writing,
shall be addressed to the respondent, and shall
be accompanied by a prescribed notice of the
proceeding, a copy of the claim as filed with
the Copyright Claims Board, a prescribed form
for waiver of personal service, and a prepaid
or other means of returning the form without
cost.
(B) The request shall state the date on which
the request is sent, and shall provide the
respondent a period of 30 days, beginning on
the date on which the request is sent, to
return the waiver form signed by the
respondent. The signed waiver form shall, for
purposes of this subsection, constitute
acceptance and proof of service as of the date
on which the waiver is signed.
(7)(A) A respondent's waiver of personal service
shall not constitute a waiver of the respondent's right
to opt out of the proceeding.
(B) A respondent who timely waives personal service
under paragraph (6) and does not opt out of the
proceeding shall be permitted a period of 30 days, in
addition to the period otherwise permitted under the
applicable procedures of the Copyright Claims Board, to
submit a substantive response to the claim, including
any defenses and counterclaims.
(8) A minor or an incompetent individual may only be
served by complying with State law for serving a
summons or like process on such an individual in an
action brought in the courts of general jurisdiction of
the State where service is made.
(9) Service of a claim and waiver of personal service
may only be effected within the United States.
(h) Notification by Copyright Claims Board.--The Register of
Copyrights shall establish regulations providing for a written
notification to be sent by, or on behalf of, the Copyright
Claims Board to notify the respondent of a pending proceeding
against the respondent, as set forth in those regulations,
which shall--
(1) include information concerning the respondent's
right to opt out of the proceeding, the consequences of
opting out and not opting out, and a prominent
statement that, by not opting out within 60 days after
the date of service under subsection (g), the
respondent loses the opportunity to have the dispute
decided by a court created under article III of the
Constitution of the United States and waives the right
to a jury trial regarding the dispute; and
(2) be in addition to, and separate and apart from,
the notice requirements under subsection (g).
(i) Opt-out Procedure.--Upon being properly served with a
notice and claim, a respondent who chooses to opt out of the
proceeding shall have a period of 60 days, beginning on the
date of service, in which to provide written notice of such
choice to the Copyright Claims Board, in accordance with
regulations established by the Register of Copyrights. If proof
of service has been filed by the claimant and the respondent
does not submit an opt-out notice to the Copyright Claims Board
within that 60-day period, the proceeding shall be deemed an
active proceeding and the respondent shall be bound by the
determination in the proceeding to the extent provided under
section 1507(a). If the respondent opts out of the proceeding
during that 60-day period, the proceeding shall be dismissed
without prejudice, except that, in exceptional circumstances
and upon written notice to the claimant, the Copyright Claims
Board may extend that 60-day period in the interests of
justice.
(j) Service of Other Documents.--Documents submitted or
relied upon in a proceeding, other than the notice and claim,
shall be served in accordance with regulations established by
the Register of Copyrights.
(k) Scheduling.--Upon confirmation that a proceeding has
become an active proceeding, the Copyright Claims Board shall
issue a schedule for the future conduct of the proceeding. The
schedule shall not specify a time that a claimant or
counterclaimant is required make an election of damages that is
inconsistent with section 1504(e). A schedule issued by the
Copyright Claims Board may be amended by the Copyright Claims
Board in the interests of justice.
(l) Conferences.--One or more Copyright Claims Officers may
hold a conference to address case management or discovery
issues in a proceeding, which shall be noted upon the record of
the proceeding and may be recorded or transcribed.
(m) Party Submissions.--A proceeding of the Copyright Claims
Board may not include any formal motion practice, except that,
subject to applicable regulations and procedures of the
Copyright Claims Board--
(1) the parties to the proceeding may make requests
to the Copyright Claims Board to address case
management and discovery matters, and submit responses
thereto; and
(2) the Copyright Claims Board may request or permit
parties to make submissions addressing relevant
questions of fact or law, or other matters, including
matters raised sua sponte by the Copyright Claims
Officers, and offer responses thereto.
(n) Discovery.--Discovery in a proceeding shall be limited to
the production of relevant information and documents, written
interrogatories, and written requests for admission, as
provided in regulations established by the Register of
Copyrights, except that--
(1) upon the request of a party, and for good cause
shown, the Copyright Claims Board may approve
additional relevant discovery, on a limited basis, in
particular matters, and may request specific
information and documents from participants in the
proceeding and voluntary submissions from
nonparticipants, consistent with the interests of
justice;
(2) upon the request of a party, and for good cause
shown, the Copyright Claims Board may issue a
protective order to limit the disclosure of documents
or testimony that contain confidential information; and
(3) after providing notice and an opportunity to
respond, and upon good cause shown, the Copyright
Claims Board may apply an adverse inference with
respect to disputed facts against a party who has
failed to timely provide discovery materials in
response to a proper request for materials that could
be relevant to such facts.
(o) Evidence.--The Copyright Claims Board may consider the
following types of evidence in a proceeding, and such evidence
may be admitted without application of formal rules of
evidence:
(1) Documentary and other nontestimonial evidence
that is relevant to the claims, counterclaims, or
defenses in the proceeding.
(2) Testimonial evidence, submitted under penalty of
perjury in written form or in accordance with
subsection (p), limited to statements of the parties
and nonexpert witnesses, that is relevant to the
claims, counterclaims, and defenses in a proceeding,
except that, in exceptional cases, expert witness
testimony or other types of testimony may be permitted
by the Copyright Claims Board for good cause shown.
(p) Hearings.--The Copyright Claims Board may conduct a
hearing to receive oral presentations on issues of fact or law
from parties and witnesses to a proceeding, including oral
testimony, subject to the following:
(1) Any such hearing shall be attended by not fewer
than two of the Copyright Claims Officers.
(2) The hearing shall be noted upon the record of the
proceeding and, subject to paragraph (3), may be
recorded or transcribed as deemed necessary by the
Copyright Claims Board.
(3) A recording or transcript of the hearing shall be
made available to any Copyright Claims Officer who is
not in attendance.
(q) Voluntary Dismissal.--
(1) By claimant.--Upon the written request of a
claimant that is received before a respondent files a
response to the claim in a proceeding, the Copyright
Claims Board shall dismiss the proceeding, or a claim
or respondent, as requested, without prejudice.
(2) By counterclaimant.--Upon written request of a
counterclaimant that is received before a claimant
files a response to the counterclaim, the Copyright
Claims Board shall dismiss the counterclaim, such
dismissal to be without prejudice.
(3) Class actions.--Any party in an active proceeding
before the Copyright Claims Board who receives notice
of a pending or putative class action, arising out of
the same transaction or occurrence, in which that party
is a class member may request in writing dismissal of
the proceeding before the Board. Upon notice to all
claimants and counterclaimants, the Copyright Claims
Board shall dismiss the proceeding without prejudice.
(r) Settlement.--
(1) In general.--At any time in an active proceeding,
some or all of the parties may--
(A) jointly request a conference with a
Copyright Claims Officer for the purpose of
facilitating settlement discussions; or
(B) submit to the Copyright Claims Board an
agreement providing for settlement and
dismissal of some or all of the claims and
counterclaims in the proceeding.
(2) Additional request.--A submission under paragraph
(1)(B) may include a request that the Copyright Claims
Board adopt some or all of the terms of the parties'
settlement in a final determination in the proceeding.
(s) Factual Findings.--Subject to subsection (n)(3), the
Copyright Claims Board shall make factual findings based upon a
preponderance of the evidence.
(t) Determinations.--
(1) Nature and contents.--A determination rendered by
the Copyright Claims Board in a proceeding shall--
(A) be reached by a majority of the Copyright
Claims Board;
(B) be in writing, and include an explanation
of the factual and legal basis of the
determination;
(C) set forth any terms by which a respondent
or counterclaim respondent has agreed to cease
infringing activity under section 1504(e)(2);
(D) to the extent requested under subsection
(r)(2), set forth the terms of any settlement
agreed to under subsection (r)(1); and
(E) include a clear statement of all damages
and other relief awarded, including under
subparagraphs (C) and (D).
(2) Dissent.--A Copyright Claims Officer who dissents
from a decision contained in a determination under
paragraph (1) may append a statement setting forth the
grounds for that dissent.
(3) Publication.--Each final determination of the
Copyright Claims Board shall be made available on a
publicly accessible website. The Register shall
establish regulations with respect to the publication
of other records and information relating to such
determinations, including the redaction of records to
protect confidential information that is the subject of
a protective order under subsection (n)(2).
(4) Freedom of information act.--All information
relating to proceedings of the Copyright Claims Board
under this title is exempt from disclosure to the
public under section 552(b)(3) of title 5, except for
determinations, records, and information published
under paragraph (3).
(u) Respondent's Default.--If a proceeding has been deemed an
active proceeding but the respondent has failed to appear or
has ceased participating in the proceeding, as demonstrated by
the respondent's failure, without justifiable cause, to meet
one or more deadlines or requirements set forth in the schedule
adopted by the Copyright Claims Board under subsection (k), the
Copyright Claims Board may enter a default determination,
including the dismissal of any counterclaim asserted by the
respondent, as follows and in accordance with such other
requirements as the Register of Copyrights may establish by
regulation:
(1) The Copyright Claims Board shall require the
claimant to submit relevant evidence and other
information in support of the claimant's claim and any
asserted damages and, upon review of such evidence and
any other requested submissions from the claimant,
shall determine whether the materials so submitted are
sufficient to support a finding in favor of the
claimant under applicable law and, if so, the
appropriate relief and damages, if any, to be awarded.
(2) If the Copyright Claims Board makes an
affirmative determination under paragraph (1), the
Copyright Claims Board shall prepare a proposed default
determination, and shall provide written notice to the
respondent at all addresses, including email addresses,
reflected in the records of the proceeding before the
Copyright Claims Board, of the pendency of a default
determination by the Copyright Claims Board and of the
legal significance of such determination. Such notice
shall be accompanied by the proposed default
determination and shall provide that the respondent has
a period of 30 days, beginning on the date of the
notice, to submit any evidence or other information in
opposition to the proposed default determination.
(3) If the respondent responds to the notice provided
under paragraph (2) within the 30-day period provided
in such paragraph, the Copyright Claims Board shall
consider respondent's submissions and, after allowing
the other parties to address such submissions,
maintain, or amend its proposed determination as
appropriate, and the resulting determination shall not
be a default determination.
(4) If the respondent fails to respond to the notice
provided under paragraph (2), the Copyright Claims
Board shall proceed to issue the default determination
as a final determination. Thereafter, the respondent
may only challenge such determination to the extent
permitted under section 1508(c), except that, before
any additional proceedings are initiated under section
1508, the Copyright Claims Board may, in the interests
of justice, vacate the default determination.
(v) Claimant's Failure to Proceed.--
(1) Failure to complete service.--If a claimant fails
to complete service on a respondent within the 90-day
period required under subsection (g), the Copyright
Claims Board shall dismiss that respondent from the
proceeding without prejudice. If a claimant fails to
complete service on all respondents within that 90-day
period, the Copyright Claims Board shall dismiss the
proceeding without prejudice.
(2) Failure to prosecute.--If a claimant fails to
proceed in an active proceeding, as demonstrated by the
claimant's failure, without justifiable cause, to meet
one or more deadlines or requirements set forth in the
schedule adopted by the Copyright Claims Board under
subsection (k), the Copyright Claims Board may, upon
providing written notice to the claimant and a period
of 30 days, beginning on the date of the notice, to
respond to the notice, and after considering any such
response, issue a determination dismissing the
claimants' claims, which shall include an award of
attorneys' fees and costs, if appropriate, under
subsection (y)(2). Thereafter, the claimant may only
challenge such determination to the extent permitted
under section 1508(c), except that, before any
additional proceedings are initiated under section
1508, the Copyright Claims Board may, in the interests
of justice, vacate the determination of dismissal.
(w) Request for Reconsideration.--A party may, within 30 days
after the date on which the Copyright Claims Board issues a
final determination in a proceeding under this chapter, submit
a written request for reconsideration of, or an amendment to,
such determination if the party identifies a clear error of law
or fact material to the outcome, or a technical mistake. After
providing the other parties an opportunity to address such
request, the Copyright Claims Board shall either deny the
request or issue an amended final determination.
(x) Review by Register.--If the Copyright Claims Board denies
a party a request for reconsideration of a final determination
under subsection (w), that party may, within 30 days after the
date of such denial, request review of the final determination
by the Register of Copyrights in accordance with regulations
established by the Register. Such request shall be accompanied
by a reasonable filing fee, as provided in such regulations.
The review by the Register shall be limited to consideration of
whether the Copyright Claims Board abused its discretion in
denying reconsideration of the determination. After providing
the other parties an opportunity to address the request, the
Register shall either deny the request for review, or remand
the proceeding to the Copyright Claims Board for
reconsideration of issues specified in the remand and for
issuance of an amended final determination. Such amended final
determination shall not be subject to further consideration or
review, other than under section 1508(c).
(y) Conduct of Parties and Attorneys.--
(1) Certification.--The Register of Copyrights shall
establish regulations requiring certification of the
accuracy and truthfulness of statements made by
participants in proceedings before the Copyright Claims
Board.
(2) Bad faith conduct.--Notwithstanding any other
provision of law, in any proceeding in which a
determination is rendered and it is established that a
party pursued a claim, counterclaim, or defense for a
harassing or other improper purpose, or without a
reasonable basis in law or fact, then, unless
inconsistent with the interests of justice, the
Copyright Claims Board shall in such determination
award reasonable costs and attorneys' fees to any
adversely affected party of in an amount of not more
than $5,000, except that--
(A) if an adversely affected party appeared
pro se in the proceeding, the award to that
party shall be for costs only, in an amount of
not more than $2,500; and
(B) in extraordinary circumstances, such as
where a party has demonstrated a pattern or
practice of bad faith conduct as described in
this paragraph, the Copyright Claims Board may,
in the interests of justice, award costs and
attorneys' fees in excess of the limitations
under this paragraph.
(3) Additional penalty.--If the Board finds that on
more than one occasion within a 12-month period a party
pursued a claim, counterclaim, or defense before the
Copyright Claims Board for a harassing or other
improper purpose, or without a reasonable basis in law
or fact, that party shall be barred from initiating a
claim before the Copyright Claims Board under this
chapter for a period of 12 months beginning on the date
on which the Board makes such a finding. Any proceeding
commenced by that party that is still pending before
the Board when such a finding is made shall be
dismissed without prejudice, except that if a
proceeding has been deemed active under subsection (i),
the proceeding shall be dismissed under this paragraph
only if the respondent provides written consent
thereto.
(z) Regulations for Smaller Claims.--The Register of
Copyrights shall establish regulations to provide for the
consideration and determination, by at least one Copyright
Claims Officer, of any claim under this chapter in which total
damages sought do not exceed $5,000 (exclusive of attorneys'
fees and costs) that are otherwise consistent with this
chapter. A determination issued under this subsection shall
have the same effect as a determination issued by the entire
Copyright Claims Board.
Sec. 1507. Effect of proceeding
(a) Determination.--Subject to the reconsideration and review
processes provided under subsections (w) and (x) of section
1506 and section 1508(c), the issuance of a final determination
by the Copyright Claims Board in a proceeding, including a
default determination or determination based on a failure to
prosecute, shall, solely with respect to the parties to such
determination, preclude relitigation before any court or
tribunal, or before the Copyright Claims Board, of the claims
and counterclaims asserted and finally determined by the Board,
and may be relied upon for such purpose in a future action or
proceeding arising from the same specific activity or
activities, subject to the following:
(1) A determination of the Copyright Claims Board
shall not preclude litigation or relitigation as
between the same or different parties before any court
or tribunal, or the Copyright Claims Board, of the same
or similar issues of fact or law in connection with
claims or counterclaims not asserted or not finally
determined by the Copyright Claims Board.
(2) A determination of ownership of a copyrighted
work for purposes of resolving a matter before the
Copyright Claims Board may not be relied upon, and
shall not have any preclusive effect, in any other
action or proceeding before any court or tribunal,
including the Copyright Claims Board.
(3) Except to the extent permitted under this
subsection and section 1508, any determination of the
Copyright Claims Board may not be cited or relied upon
as legal precedent in any other action or proceeding
before any court or tribunal, including the Copyright
Claims Board.
(b) Class Actions Not Affected.--
(1) In general.--A proceeding before the Copyright
Claims Board shall not have any effect on a class
action proceeding in a district court of the United
States, and section 1509(a) shall not apply to a class
action proceeding in a district court of the United
States.
(2) Notice of class action.--Any party to an active
proceeding before the Copyright Claims Board who
receives notice of a pending class action, arising out
of the same transaction or occurrence as the proceeding
before the Copyright Claims Board, in which the party
is a class member shall either--
(A) opt out of the class action, in
accordance with regulations established by the
Register of Copyrights; or
(B) seek dismissal under section 1506(q)(3)
of the proceeding before the Copyright Claims
Board.
(c) Other Materials in Proceeding.--Except as permitted under
this section and section 1508, a submission or statement of a
party or witness made in connection with a proceeding before
the Copyright Claims Board, including a proceeding that is
dismissed, may not be cited or relied upon in, or serve as the
basis of, any action or proceeding concerning rights or
limitations on rights under this title before any court or
tribunal, including the Copyright Claims Board.
(d) Applicability of Section 512(g).--A claim or counterclaim
before the Copyright Claims Board that is brought under
subsection (c)(1) or (c)(4) of section 1504, or brought under
subsection (c)(6) of section 1504 and that relates to a claim
under subsection (c)(1) or (c)(4) of such section, qualifies as
an action seeking an order to restrain a subscriber from
engaging in infringing activity under section 512(g)(2)(C) if--
(1) notice of the commencement of the Copyright
Claims Board proceeding is provided by the claimant to
the service provider's designated agent before the
service provider replaces the material following
receipt of a counter notification under section 512(g);
and
(2) the claim brought alleges infringement of the
material identified in the notification of claimed
infringement under section 512(c)(1)(C).
(e) Failure to Assert Counterclaim.--The failure or inability
to assert a counterclaim in a proceeding before the Copyright
Claims Board shall not preclude the assertion of that
counterclaim in a subsequent court action or proceeding before
the Copyright Claims Board.
(f) Opt-Out or Dismissal of Party.--If a party has timely
opted out of a proceeding under section 1506(i) or is dismissed
from a proceeding before the Copyright Claims Board issues a
final determination in the proceeding, the determination shall
not be binding upon and shall have no preclusive effect with
respect to that party.
Sec. 1508. Review and confirmation by district court
(a) In General.--In any proceeding in which a party has
failed to pay damages, or has failed otherwise to comply with
the relief, awarded in a final determination of the Copyright
Claims Board, including a default determination or a
determination based on a failure to prosecute, the aggrieved
party may, not later than 1 year after the date on which the
final determination is issued, any reconsideration by the
Copyright Claims Board or review by the Register of Copyrights
is resolved, or an amended final determination is issued,
whichever occurs last, apply to the United States District
Court for the District of Columbia or any other appropriate
district court of the United States for an order confirming the
relief awarded in the final determination and reducing such
award to judgment. The court shall grant such order and direct
entry of judgment unless the determination is or has been
vacated, modified, or corrected under subsection (c). If the
United States District Court for the District of Columbia or
other district court of the United States, as the case may be,
issues an order confirming the relief awarded by the Copyright
Claims Board, the court shall impose on the party who failed to
pay damages or otherwise comply with the relief, the reasonable
expenses required to secure such order, including attorneys'
fees, that were incurred by the aggrieved party.
(b) Filing Procedures.--
(1) Application to confirm determination.--Notice of
the application under subsection (a) for confirmation
of a determination of the Copyright Claims Board and
entry of judgment shall be provided to all parties to
the proceeding before the Copyright Claims Board that
resulted in the determination, in accordance with the
procedures applicable to service of a motion in the
district court of the United States where the
application is made.
(2) Contents of application.--The application shall
include the following:
(A) A certified copy of the final or amended
final determination of the Copyright Claims
Board, as reflected in the records of the
Copyright Claims Board, following any process
of reconsideration or review by the Register of
Copyrights, to be confirmed and rendered to
judgment.
(B) A declaration by the applicant, under
penalty of perjury--
(i) that the copy is a true and
correct copy of such determination;
(ii) stating the date it was issued;
(iii) stating the basis for the
challenge under subsection (c)(1); and
(iv) stating whether the applicant is
aware of any other proceedings before
the court concerning the same
determination of the Copyright Claims
Board.
(c) Challenges to the Determination.--
(1) Bases for challenge.--Not later than 90 days
after the date on which Copyright Claims Board issues a
final or amended final determination in a proceeding,
or not later than 90 days after the date on which the
Register of Copyrights completes any process of
reconsideration or review of the determination,
whichever occurs later, a party may seek a court order
vacating, modifying, or correcting the determination of
the Copyright Claims Board in the following cases:
(A) If the determination was issued as a
result of fraud, corruption, misrepresentation,
or other misconduct.
(B) If the Copyright Claims Board exceeded
its authority or failed to render a final
determination concerning the subject matter at
issue.
(C) In the case of a default determination or
determination based on a failure to prosecute,
if it is established that the default or
failure was due to excusable neglect.
(2) Procedure to challenge.--
(A) Notice of application.--Notice of the
application to challenge a determination of the
Copyright Claims Board shall be provided to all
parties to the proceeding before the Copyright
Claims Board, in accordance with the procedures
applicable to service of a motion in the court
where the application is made.
(B) Staying of proceedings.--For purposes of
an application under this subsection, any judge
who is authorized to issue an order to stay the
proceedings in an any other action brought in
the same court may issue an order, to be served
with the notice of application, staying
proceedings to enforce the award while the
challenge is pending.
Sec. 1509. Relationship to other district court actions
(a) Stay of District Court Proceedings.--Subject to section
1507(b), a district court of the United States shall issue a
stay of proceedings or such other relief as the court
determines appropriate with respect to any claim brought before
the court that is already the subject of a pending or active
proceeding before the Copyright Claims Board.
(b) Alternative Dispute Resolution Process.--A proceeding
before the Copyright Claims Board under this chapter shall
qualify as an alternative dispute resolution process under
section 651 of title 28 for purposes of referral of eligible
cases by district courts of the United States upon the consent
of the parties.
Sec. 1510. Implementation by Copyright Office
(a) Regulations.--
(1) Implementation generally.--The Register of
Copyrights shall establish regulations to carry out
this chapter. Such regulations shall include the fees
prescribed under subsections (e) and (x) of section
1506. The authority to issue such fees shall not limit
the authority of the Register of Copyrights to
establish fees for services under section 708. All fees
received by the Copyright Office in connection with the
activities under this chapter shall be deposited by the
Register of Copyrights and credited to the
appropriations for necessary expenses of the Office in
accordance with section 708(d). In establishing
regulations under this subsection, the Register of
Copyrights shall provide for the efficient
administration of the Copyright Claims Board, and for
the ability of the Copyright Claims Board to timely
complete proceedings instituted under this chapter,
including by implementing mechanisms to prevent
harassing or improper use of the Copyright Claims Board
by any party.
(2) Limits on monetary relief.--
(A) In general.--Subject to subparagraph (B),
not earlier than 3 years after the date on
which Copyright Claims Board issues the first
determination of the Copyright Claims Board,
the Register of Copyrights may, in order to
further the goals of the Copyright Claims
Board, conduct a rulemaking to adjust the
limits on monetary recovery or attorneys' fees
and costs that may be awarded under this
chapter.
(B) Effective date of adjustment.--Any rule
under subparagraph (A) that makes an adjustment
shall take effect at the end of the 120-day
period beginning on the date on which the
Register of Copyrights submits the rule to
Congress and only if Congress does not, during
that 120-day period, enact a law that provides
in substance that Congress does not approve the
rule.
(b) Necessary Facilities.--Subject to applicable law, the
Register of Copyrights may retain outside vendors to establish
internet-based, teleconferencing, and other facilities required
to operate the Copyright Claims Board.
(c) Fees.--Any filing fees, including the fee to commence a
proceeding under section 1506(e), shall be prescribed in
regulations established by the Register of Copyrights. The sum
total of such filing fees shall be in an amount of at least
$100, may not exceed the cost of filing an action in a district
court of the United States, and shall be fixed in amounts that
further the goals of the Copyright Claims Board.
Sec. 1511. Funding
There are authorized to be appropriated such sums as may be
necessary to pay the costs incurred by the Copyright Office
under this chapter that are not covered by fees collected for
services rendered under this chapter, including the costs of
establishing and maintaining the Copyright Claims Board and its
facilities.
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