[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6496 Introduced in House (IH)]

<DOC>






114th CONGRESS
  2d Session
                                H. R. 6496

  To amend title 17, United States Code, to establish a small claims 
      system within the Copyright Office, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            December 8, 2016

    Ms. Judy Chu of California (for herself and Mr. Smith of Texas) 
 introduced the following bill; which was referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To amend title 17, United States Code, to establish a small claims 
      system within the Copyright Office, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fairness for American Small Creators 
Act''.

SEC. 2. ESTABLISHMENT OF COPYRIGHT CLAIMS BOARD.

    (a) Amendment.--Title 17, United States Code, is amended by adding 
at the end the following new chapter:

                  ``CHAPTER 14--COPYRIGHT CLAIMS BOARD

``Sec.
``1401. Copyright Claims Board.
``1402. Duties of officers and staff.
``1403. Nature of proceedings.
``1404. Registration certificate required.
``1405. Proceedings.
``1406. Effect of proceeding.
``1407. Confirmation or review by district court.
``1408. Referral of cases by district courts.
``1409. Definitions.
``Sec. 1401. Copyright Claims Board
    ``(a) Establishment.--There is established within the Copyright 
Office of the Library of Congress a Copyright Claims Board (hereinafter 
the `Board'), which shall serve as an alternative forum in which 
parties may choose to resolve certain copyright claims as provided in 
this chapter.
    ``(b) Officers and Staff.--
            ``(1) Copyright claims officers.--
                    ``(A) Appointment.--The Librarian of Congress shall 
                appoint 3 full-time copyright claims officers to serve 
                on the Board who are recommended as qualified by the 
                Register of Copyrights.
                    ``(B) Qualifications.--Each copyright claims 
                officer shall be an attorney with not less than 7 years 
                of legal experience. Two of the copyright claims 
                officers shall have substantial experience in the 
                evaluation, litigation, or adjudication of copyright 
                infringement claims and, between them, shall have 
                represented or presided over a diversity of copyright 
                interests, including those of both owners and users of 
                copyrighted works. The third copyright claims officer 
                shall have substantial experience in the field of 
                alternative dispute resolution.
                    ``(C) Term.--A copyright claims officer shall serve 
                for a term of 6 years, which may be renewed by the 
                Librarian of Congress upon the recommendation of 
                Register of Copyrights. The term for the first three 
                copyright claims officers appointed pursuant to 
                subparagraph (A) shall be 4, 5, and 6 years, 
                respectively.
                    ``(D) Vacancies.--If a vacancy occurs in the 
                position of a copyright claims officer, the Librarian 
                of Congress shall act expeditiously to appoint a 
                copyright claims officer for that position who is 
                recommended as qualified by the Register of Copyrights. 
                A copyright claims officer appointed to fill a vacancy 
                that occurs before the expiration of the term for which 
                the officer's predecessor was appointed shall be 
                appointed to serve a full term of 6 years.
                    ``(E) Incapacity.--If a copyright claims officer is 
                temporarily unable to perform the duties of the 
                officer, the Librarian of Congress shall act 
                expeditiously to appoint an interim copyright claims 
                officer, who is recommended as qualified by the 
                Register of Copyrights, to perform the duties during 
                the period of incapacity.
                    ``(F) Compensation.--The Librarian of Congress 
                shall set the annual rate of pay for any copyright 
                claims officer appointed under this paragraph. Any 
                annual rate of pay established under this subparagraph 
                shall be not less than the minimum rate of pay, and not 
                greater than the maximum rate of pay, applicable to a 
                Senior-Level (SL) position established under section 
                5108 of title 5, United States Code.
            ``(2) Copyright claims attorneys.--
                    ``(A) Appointment.--The Register of Copyrights 
                shall appoint not fewer than 2 full-time copyright 
                claims attorneys to assist in the administration of the 
                Board.
                    ``(B) Qualifications.--Each copyright claims 
                attorney shall be an attorney with not less than 3 
                years of substantial experience in the field of 
                copyright law.
                    ``(C) Compensation.--The Register of Copyrights 
                shall set the annual rate of pay for any copyright 
                claims attorney appointed under this paragraph. Any 
                annual rate of pay established under this subparagraph 
                shall be not greater than the annual rate of pay for a 
                position classified at step 10 of GS-15 of the General 
                Schedule.
            ``(3) Supervision and removal.--Subject to section 1402(c), 
        each copyright claims officer and each copyright claims 
        attorney shall be supervised and removable by the Librarian of 
        Congress.
            ``(4) Administrative support.--The Register of Copyrights 
        shall provide each copyright claims officer and each copyright 
        claims attorney with necessary administrative support, 
        including technological facilities, to carry out the duties of 
        such officer and attorney under this chapter.
            ``(5) Location in copyright office.--The offices and 
        facilities of the copyright claims officers and copyright 
        claims attorneys shall be located at the Copyright Office.
``Sec. 1402. Authority and Responsibilities of the Copyright Claims 
              Board
    ``(a) Copyright Claims Officer.--Subject to this chapter and 
regulations issued by the Register of Copyrights, the duties of a 
copyright claims officer are as follows:
            ``(1) To issue determinations on any civil copyright claim, 
        counterclaim, and defense as may be brought before the Board 
        under this chapter, and to certify the determinations for 
        confirmation by the United States District Court for the 
        District of Columbia.
            ``(2) To ensure that a claim, defense, and counterclaim is 
        properly filed and otherwise appropriate for resolution by the 
        Board.
            ``(3) To manage the proceedings of the Board and render 
        rulings relating to the consideration of a claim, defense, and 
        counterclaim, including scheduling, discovery, evidentiary, and 
        other matters.
            ``(4) To request the production of information and 
        documents relevant to the resolution of a claim, defense, or 
        counterclaim from a party in a proceeding and from others.
            ``(5) To conduct hearings and conferences.
            ``(6) To facilitate the settlement of any claim or 
        counterclaim of parties.
            ``(7) To include in any determination of the Board a 
        requirement for cessation or mitigation of infringing activity, 
        including takedown or destruction of infringing materials, 
        where the party to undertake such measures has so agreed.
            ``(8) To provide information to the public concerning the 
        procedures and requirements of the Board, including any form 
        and instructional material.
            ``(9) To maintain a record of each proceeding of the Board 
        and make public any determination in an individual proceeding.
            ``(10) To carry out any other duties prescribed in this 
        chapter.
            ``(11) When not engaged in performing the duties prescribed 
        in this chapter, to perform such other duties as may be 
        assigned by the Register of Copyrights.
    ``(b) Copyright Claims Attorney.--Subject to this chapter and 
regulations issued by the Register of Copyrights, the duties of a 
copyright claims attorney are as follows:
            ``(1) To provide assistance to the copyright claims 
        officers in the administration of the duties of the officers 
        under this chapter.
            ``(2) To provide assistance to members of the public with 
        respect to the procedures and requirements of the Board.
            ``(3) When not engaged in performing the duties prescribed 
        in this chapter, to perform such other duties as may be 
        assigned by the Register of Copyrights.
    ``(c) Independence in Determination.--
            ``(1) In general.--The copyright claims officers shall 
        render determinations in individual proceedings independently 
        on the basis of the records in the proceedings of the Board and 
        in accordance with the provisions of this title, judicial 
        precedent, and applicable regulations of the Register of 
        Copyrights.
            ``(2) Consultation with the register of copyrights.--The 
        copyright claims officers and copyright claims attorneys may 
        consult with the Register of Copyrights on general issues of 
        law, but, subject to section 1405(y), not with respect to the 
        facts of any particular matter pending before them or the 
        application of law thereto.
            ``(3) Performance review.--Notwithstanding any other 
        provision of law or any regulation or policy of the Library of 
        Congress or Register of Copyrights, no performance appraisal of 
        a copyright claims officer or copyright claims attorney shall 
        consider the substantive result of any individual determination 
        reached by the Board as a basis for appraisal except insofar as 
        it may relate to an actual or alleged violation of an ethical 
        standard of conduct.
    ``(d) Direction by Register.--Subject to subsection (b), the 
Register of Copyrights shall direct each copyright claims officer and 
each copyright claims attorney in the administration of their 
respective duties under this chapter.
    ``(e) Inconsistent Duties Barred.--A copyright claims officer or 
copyright claims attorney may not undertake any duty or responsibility 
that conflicts with any duty under this chapter.
    ``(f) Recusal.--A copyright claims officer or copyright claims 
attorney shall recuse themself from participation in any proceeding 
with respect to which the copyright claims officer has reason to 
believe there is a conflict of interest.
    ``(g) Ex Parte Communications.--Except as otherwise provided by 
law, any party proceeding before the Board shall refrain from ex parte 
communications with a copyright claims officer concerning the substance 
of any proceeding before the Board, except that a copyright claims 
attorney may provide information and assistance to parties concerning 
the procedures and requirements of the Board.
    ``(h) Judicial Review.--Actions of the copyright claims officers 
and the Register of Copyrights under this chapter in connection with 
the rendering of individual determinations are subject to judicial 
review as provided under section 1407(b) and not under chapter 7 of 
title 5.
``Sec. 1403. Nature of Proceedings
    ``(a) Voluntary Participation.--Participation in a Board proceeding 
is 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 
United States district court or any other court, including a jury 
trial, is preserved.
    ``(b) Statute of Limitations.--
            ``(1) In general.--No proceeding shall be maintained before 
        the Board unless it is commenced before the Board within 3 
        years after the claim that is the basis for the proceeding 
        accrued.
            ``(2) Tolling.--Subject to section 1406(a), a proceeding 
        commenced before the Board shall toll the time permitted under 
        section 507(b) for commencement of an action on the same claim 
        in a Federal district court during the time it remains pending.
    ``(c) Permissible Claims, Counterclaims, and Defenses.--The 
copyright claims officers 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 issued by the 
Register of Copyrights:
            ``(1) Infringement.--A claim for infringement or a 
        declaration of infringement of an exclusive right of copyright 
        provided under section 106 asserted by the legal or beneficial 
        owner of such exclusive right at the time of infringement in 
        which the claimant seeks damages, if any, subject to the 
        limitations described in subsection (e)(1).
            ``(2) Declaration of noninfringement.--A claim for a 
        declaration of noninfringement of an exclusive right of 
        copyright provided under section 106 in which the claimant 
        seeks damages, if any, subject to the limitations described in 
        subsection (e)(1) and in which an actual controversy exists as 
        evidenced by a documented threat of legal action against the 
        claimant.
            ``(3) Misrepresentation; removal of copyright management 
        information.--Notwithstanding any other provision of law, a 
        claim under section 512(f), except that any remedy in a 
        proceeding before the Board is limited to those available under 
        this chapter.
            ``(4) Counterclaim.--A counterclaim asserted solely against 
        any claimant in a proceeding in which any counterclaimant seeks 
        damages, if any, within the limitations set forth in subsection 
        (e)(1), and that--
                    ``(A) arises under section 106 or 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 under 
                paragraph (2), or a claim of misrepresentation or a 
                claim of removal of copyright management information, 
                under paragraph (3); or
                    ``(B) arises under an agreement relating to the 
                same transaction or occurrence that is the subject of a 
                claim of infringement brought under paragraph (1) and 
                could affect the relief awarded to the claimant.
            ``(5) Defense.--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) Multiple claims.--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 a continuous course of alleged 
        infringement and do not in the aggregate result in a claim for 
        damages in excess of the limitation provided in subsection 
        (e)(1)(D).
    ``(d) Excluded Claims.--The following claims and counterclaims are 
not subject to determination by the Board:
            ``(1) A claim or counterclaim that is not a permissible 
        claim or counterclaim under subsection (c).
            ``(2) A claim or counterclaim already pending before, or 
        finally adjudicated by, a court of competent jurisdiction, 
        unless in the case of a pending claim or counterclaim, the 
        court issues a stay to permit such claim or counterclaim to 
        proceed before the Board.
            ``(3) A claim or counterclaim by or against a Federal or 
        State government entity.
            ``(4) A claim or counterclaim asserted against a person or 
        entity residing outside of the United States.
            ``(5) A claim or counterclaim dismissed by the Board 
        pursuant to section 1405(f)(3).
    ``(e) Permissible Remedies.--
            ``(1) Damages for infringement.--
                    ``(A) Actual and statutory damages.--Subject to the 
                limitation on total damages set forth in subparagraph 
                (D), with respect to a claim or counterclaim for 
                infringement of copyright, the Board may award--
                            ``(i) actual damages and profits of the 
                        infringing party determined in accordance with 
                        section 504(b), which determination shall 
                        include in appropriate cases consideration of 
                        whether the infringing party has agreed to 
                        cease or mitigate the infringing activity as 
                        provided under paragraph (2); or
                            ``(ii) limited statutory damages, which 
                        shall be determined in accordance with section 
                        504(c), subject to the following conditions:
                                    ``(I) With respect to a work timely 
                                registered as described under section 
                                412 and eligible for an award of 
                                statutory damages under that section, 
                                statutory damages may not exceed 
                                $15,000 per work infringed.
                                    ``(II) With respect to a work not 
                                timely registered as described under 
                                section 412 but eligible for an award 
                                of statutory damages under section 
                                1404(b), statutory damages may not 
                                exceed $7,500 per work infringed, or a 
                                total of $15,000 in any one proceeding.
                                    ``(III) In making an award of 
                                statutory damages, the Board may not 
                                make any finding or consider whether 
                                the infringement was committed 
                                willfully.
                                    ``(IV) The 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, the claimant or 
                counterclaimant shall, after the close of discovery and 
                in accordance with the schedule adopted by the Board 
                pursuant to section 1405(k), elect to pursue either 
                actual damages and profits or statutory damages under 
                subparagraph (A).
                    ``(C) Other damages.--Damages for any claim and 
                counterclaim, other than an infringement claim, shall 
                be awarded in accordance with applicable law and shall 
                be subject to the limitation set forth in subparagraph 
                (D).
                    ``(D) Limitation on total damages.--Notwithstanding 
                any other provision of law, a party who pursues one or 
                more claims or counterclaims in any single proceeding 
                before the Board may not seek or recover in such 
                proceeding damages totaling more than $30,000, not 
                including any attorneys' fees and costs that may be 
                awarded under section 1405(z)(2).
            ``(2) Agreement by party to cease infringing activity.--In 
        any proceeding in which a party agrees to cease activity 
        (including by removal or disabling of access to, or destruction 
        of, material that is found to infringe) and the agreement is 
        included in the record, the Board shall include in the final 
        determination a requirement that such party, if found to have 
        infringed, cease the infringing conduct to the extent agreed.
            ``(3) Costs and attorneys' fees.--Notwithstanding any other 
        provision of law and except as provided under section 
        1405(z)(2), each party to a proceeding before the Board shall 
        bear the costs and attorneys' fees of that party.
``Sec. 1404. Registration requirement
    ``(a) Requirements To File Claim or Counterclaim.--No claim or 
counterclaim alleging infringement of an exclusive right of copyright 
may be asserted before the Board unless the owner of the copyright has 
first delivered a completed application, deposit, and the required fee 
for registration to the Copyright Office and either a registration 
certificate has been issued or has not been refused.
    ``(b) Damages.--Notwithstanding any other provision of law, a 
claimant or counterclaimant in a proceeding before the Board may not 
recover actual damages and profits or limited statutory damages for 
infringement of a work under this chapter unless the requirements of 
subsection (a) have been met and--
            ``(1) until the Copyright Offices issues a registration 
        certificate;
            ``(2) until the registration certificate is submitted to 
        the Board and made available to the other parties to the 
        proceeding and the other parties have been provided an 
        opportunity to address the issuance of the registration 
        certificate;
            ``(3) the proceeding is not being held in abeyance as 
        described in subsection (c); and
            ``(4) the proceeding has not be dismissed without 
        prejudice, in the case of a proceeding in which the Board 
        receives notice that registration has been refused by the 
        Copyright Office.
    ``(c) Abeyance.--In the case of a proceeding that cannot proceed 
due to an outstanding registration certificate, the proceeding shall be 
held in abeyance pending submission of the certificate for the work to 
the Board, and if held in abeyance for more than one year, the Board 
may, upon providing written notice to the parties and 30 days to 
respond, dismiss the proceeding without prejudice.
    ``(d) Presumption.--In the case of a certificate of registration 
for a work that was registered before or within five years after the 
first publication of the work, the presumption described in section 
410(c) shall apply in a proceeding before the Board.
``Sec. 1405. Proceedings
    ``(a) In General.--Proceedings of the Board shall be conducted in 
accordance with this chapter and regulations issued by the Register of 
Copyrights.
    ``(b) Record.--The Board shall maintain records documenting the 
proceedings of the Board.
    ``(c) Centralized Process.--The Board may conduct proceedings by 
means of Internet-based applications and other telecommunications 
facilities, except that in any case involving physical or other 
nontestimonial evidence, the Board may make alternative arrangements 
for the submission of evidence if the arrangements do not prejudice 
another party to the proceeding.
    ``(d) Representation.--A party to a proceeding before the Board may 
be represented by an attorney or a law student who is qualified under 
applicable law to represent a party on a pro bono basis.
    ``(e) Commencement of Proceeding.--A claimant may, subject to such 
additional requirements as may be prescribed in regulations issued by 
the Register of Copyrights, commence a proceeding under this section by 
filing a claim with the Board, that--
            ``(1) includes a statement of material facts in support of 
        the claim;
            ``(2) is certified in accordance with subsection (z)(1); 
        and
            ``(3) is accompanied by the appropriate filing fee 
        prescribed in such regulations which--
                    ``(A) may not exceed the cost of filing an action 
                in a United States district court; and
                    ``(B) shall be established to further goals of the 
                Board.
    ``(f) Review of Claims and Counterclaims.--
            ``(1) Claims.--A copyright claims attorney shall review 
        each claim filed with the Board for compliance with the 
        provisions of this chapter and applicable regulations and take 
        action as follows:
                    ``(A) Compliant claim.--If the copyright claims 
                attorney finds that a claim complies under this section 
                the attorney shall notify the claimant that the 
                claimant may serve notice under subsection (h).
                    ``(B) Noncompliant claim.--If the copyright claims 
                attorney finds that a claim does not comply under this 
                section, the attorney shall notify the claimant that 
                the claim is deficient and that the claimant may file 
                an amended claim not later than 30 days after the date 
                of such notice without paying an additional filing fee.
                    ``(C) Compliant amended claim.--If the claimant 
                files a compliant amended claim within the period of 
                time described under subparagraph (B), the copyright 
                claims attorney shall notify the claimant that the 
                claimant may proceed under subparagraph (A).
                    ``(D) Noncompliant amended claim.--If the claimant 
                files a noncompliant amended claim within the period of 
                time described under subparagraph (B), the copyright 
                claims attorney shall notify the claimant under 
                subparagraph (B).
                    ``(E) Compliant second amended claim.--If the 
                claimant files a compliant second amended claim within 
                the period of time described under subparagraph (B), 
                the copyright claims attorney shall notify the claimant 
                that the claimant may proceed under subparagraph (A).
                    ``(F) Noncompliant second amended claim.--If the 
                claimant files a noncompliant second amended claim 
                within the period of time described under subparagraph 
                (B), the Board shall dismiss the proceeding without 
                prejudice.
                    ``(G) Claim not timely filed.--The Board shall 
                dismiss without prejudice any proceeding in which a 
                compliant claim is not timely filed.
                    ``(H) Claim against an online service provider.--
                For purposes of this paragraph, the Board shall--
                            ``(i) consider a claim against an online 
                        service provider for infringement by reason of 
                        the storage, at the direction of a user, of 
                        material residing on a system or network 
                        controlled or operated by the service provider 
                        that may be subject to section 512(c), or by 
                        reason of the service provider referring or 
                        linking users to an online location containing 
                        infringing material that may be subject to the 
                        provisions of section 512(d), noncompliant 
                        unless the claimant affirms in the statement 
                        required under subsection (e)(1) that the 
                        claimant has previously notified the service 
                        provider of the claimed infringement in 
                        accordance with section 512(c)(3) and the 
                        service provider failed to remove or disable 
                        access to the material within 5 business days 
                        after the date of such notice; and
                            ``(ii) if a claim is found to be 
                        noncompliant under clause (i), provide the 
                        claimant with information concerning the 
                        service of a notice pursuant to section 
                        512(c)(3).
            ``(2) Counterclaim.--A counterclaim shall be treated in the 
        same manner as a claim under paragraph (1) except that each 
        notice shall be served on the all other parties.
            ``(3) Dismissal for good cause.--If, upon reviewing a claim 
        or counterclaim in a particular proceeding, the Board 
        determines that the claim or counterclaim is unsuitable for 
        determination by the Board due to a failure to join a necessary 
        party, the lack of an essential witness, evidence, expert 
        testimony, or for other good cause, the Board shall dismiss the 
        proceeding without prejudice.
    ``(g) Proof of Service.--To proceed with a claim against a 
respondent, a claimant must file with the Board proof of service of the 
notice described in subsection (h) on the respondent not later than 90 
days after the date on which the claimant receives notice to proceed 
under subsection (f)(1)(A).
    ``(h) Service of Notice and Claims.--Service on a respondent by a 
claimant is valid only if the claimant causes 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 issued by the Register of Copyrights. Each 
such notice shall be in accordance with the following:
            ``(1) The notice shall adhere to a prescribed form that 
        describes the Board under section 1401 and a proceeding under 
        section 1403, the respondent's right to opt out under 
        subsection (i), and the consequences of opting out and not 
        opting out.
            ``(2) The copy of the claim served on the respondent shall 
        be as the claim was filed with the Board.
            ``(3) Personal service of a notice and claim may only be 
        made by an individual who is not a party to the proceeding and 
        is at least 18 years of age.
            ``(4) An individual, other than a minor or incompetent 
        individual, may be served by--
                    ``(A) a procedure under State law for serving a 
                summons in an action brought in a court of general 
                jurisdiction in the State where service is made; or
                    ``(B) any of the following:
                            ``(i) Delivering the notice and a copy of 
                        the claim to the individual personally.
                            ``(ii) Leaving the notice and a copy of the 
                        claim at the individual's dwelling or usual 
                        place of abode with someone of suitable age and 
                        discretion who resides there.
                            ``(iii) Delivering the notice and a copy of 
                        the claim to an agent authorized by appointment 
                        or by law to receive service of process.
            ``(5) A corporation, partnership, or unincorporated 
        association that is subject to suit in courts of general 
        jurisdiction under a common name may be served by--
                    ``(A) a procedure under State law for serving a 
                summons in an action brought in courts of general 
                jurisdiction in the State where service is made; or
                    ``(B) delivering the notice and a copy of the claim 
                to an officer, a managing or general agent, or any 
                other agency authorized by appointment or by law to 
                receive service of process in an action brought in 
                courts of general jurisdiction and, if the agent is 
                authorized by State statute and the statute so 
                requires, by also mailing a copy of the notice and a 
                copy of the claim to the respondent.
            ``(6) In order to request a waiver of personal service, a 
        claimant may notify a respondent by first-class mail or other 
        reliable means that a proceeding has been commenced, as 
        follows:
                    ``(A) Any such request shall--
                            ``(i) be in writing and addressed to the 
                        individual respondent;
                            ``(ii) include the notice and a copy of the 
                        claim as filed;
                            ``(iii) include 2 copies of a prescribed 
                        form for waiver of personal service; and
                            ``(iv) include a prepaid or costless means 
                        of returning the form.
                    ``(B) The request shall state the date on which the 
                request was sent and provide the respondent 30 days 
                after such date to return 1 copy of the signed waiver, 
                which shall constitute proof of service for purposes of 
                filing under subsection (g) and this subsection.
            ``(7) A respondent's waiver of personal service shall not 
        constitute a waiver of the respondent's right to opt out of the 
        proceeding under subsection (i).
            ``(8) A respondent who waives personal service and does not 
        opt out under subsection (i) shall be permitted an additional 
        30 days beyond the amount of time normally permitted under the 
        applicable procedures of the Board to submit a substantive 
        response to the claim, including any defense or counterclaim.
            ``(9) A minor or an incompetent individual may only be 
        served by a procedure under applicable State law for serving a 
        summons or other process on such an individual in an action 
        brought in the courts of general jurisdiction of the State in 
        which service is made.
            ``(10) Service or waiver of personal service under this 
        subsection may only be made within the United States.
    ``(i) Opt-Out Procedure.--A respondent may opt out of a proceeding 
under this section not later than 60 days after the date of service 
under subsection (h) by transmitting written notice thereof to the 
Board, in accordance with regulations issued by the Register of 
Copyrights. If the respondent--
            ``(1) does not opt out, the proceeding shall continue and 
        the respondent shall be bound by the determination under 
        section 1406(a) or subsection (u); or
            ``(2) opts out, the proceeding shall be dismissed without 
        prejudice.
    ``(j) Service of Other Documents.--Documents submitted or relied 
upon in the proceeding shall be served in accordance with regulations 
issued by the Register of Copyrights.
    ``(k) Scheduling.--The Board shall issue a schedule, which may be 
amended by the Board for good cause, for each proceeding under this 
chapter.
    ``(l) No Formal Motion Practice.--There shall be no formal motion 
practice in a Board proceeding.
    ``(m) Conferences.--At the request of a party or at the discretion 
of a copyright claims officer, one or more copyright claims officers 
may hold a conference with the parties on the record to address matters 
in a proceeding including case management and discovery issues, but not 
issues of fact or law.
    ``(n) Party Submissions.--The Board may request or permit the 
parties to make submissions regarding relevant questions of fact or 
law.
    ``(o) Discovery.--
            ``(1) In general.--Discovery shall be limited, pursuant to 
        regulations issued by the Register of Copyrights, to the 
        following:
                    ``(A) Production of relevant information and 
                documents.
                    ``(B) Written interrogatories.
                    ``(C) Written requests for admissions.
            ``(2) Special requests.--The Board may--
                    ``(A) request specific information and documents 
                from parties to the proceeding or others; or
                    ``(B) upon request of a party and for good cause 
                shown, approve additional limited discovery.
            ``(3) Adverse inference.--After providing notice and an 
        opportunity to respond, and upon good cause shown, the Board 
        may apply an adverse inference regarding disputed facts against 
        a party who has failed to timely provide discovery materials in 
        response to a proper request for relevant materials.
    ``(p) Evidence.--The Board may consider the following types of 
evidence in a proceeding, which may be admitted without application of 
formal rules of evidence:
            ``(1) Nontestimonial evidence.--Documentary and other 
        nontestimonial evidence that is relevant to any claim, 
        counterclaim, or defense in a proceeding.
            ``(2) Testimonial evidence.--Testimonial evidence that is--
                    ``(A) submitted under penalty of perjury and in 
                accordance with subsection (q);
                    ``(B) limited to written statements of the parties 
                and witnesses; and
                    ``(C) relevant to any claim, counterclaim, and 
                defense in a proceeding.
            ``(3) Special evidence.--In exceptional cases and for good 
        cause shown, expert witness or other forms of testimony.
    ``(q) Hearings.--The Board may conduct a hearing to receive oral 
presentations on issues of fact or law from parties and witnesses to a 
proceeding in accordance with the following procedures:
            ``(1) Any hearing shall be noted on the record of the 
        proceeding and may be recorded or transcribed.
            ``(2) A recording or transcript of a hearing shall be 
        provided to any copyright claims officer who does not attend a 
        hearing.
    ``(r) Voluntary Dismissal.--
            ``(1) By claimant.--Upon written request of a claimant that 
        is received prior to a respondent's filing of a response to a 
        claim, the Board shall dismiss, without prejudice, a claim, a 
        respondent, or the entire proceeding.
            ``(2) By counterclaimant.--Upon written request of a 
        counterclaimant received prior to a claimant's filing of a 
        response to a counterclaim, the Board shall dismiss the 
        counterclaim without prejudice.
    ``(s) Settlement.--During the pendency of any proceeding under this 
chapter, some or all of the parties may--
            ``(1) jointly request a conference with a copyright claims 
        officer for the purpose of facilitating settlement discussions; 
        or
            ``(2) submit to the Board--
                    ``(A) an agreement providing for settlement and 
                dismissal of one or more of the claims and 
                counterclaims in the proceeding; or
                    ``(B) a request that the Board adopt some or all of 
                the terms of the parties' settlement under subparagraph 
                (A) in a final determination.
    ``(t) Findings; Standard of Proof.--Subject to subsection (o)(3), 
the Board shall make findings based upon a preponderance of the 
evidence.
    ``(u) Final Determinations.--
            ``(1) Nature and contents.--A final determination issued by 
        the Board in a proceeding shall--
                    ``(A) require the consensus of a majority of the 
                copyright claims officers presiding over the 
                proceeding;
                    ``(B) be in writing and include an explanation of 
                the underlying factual and legal bases for the 
                determination;
                    ``(C) pursuant to section 1403(e)(2), set forth any 
                terms by which a respondent or counterclaim respondent 
                has agreed to cease infringing activity;
                    ``(D) set forth the terms of any settlement to the 
                extent requested by the parties under subsection (s); 
                and
                    ``(E) include a clear statement of all damages and 
                other relief awarded.
            ``(2) Dissent.--A copyright claims officer who dissents 
        from a decision contained in a determination may append a 
        statement setting forth the grounds for such dissent.
            ``(3) Online publication.--The Board shall publish all 
        final determinations on a publicly accessible Web site 
        maintained by the Board.
    ``(v) Default by Respondent.--If a respondent fails to appear or 
ceases to participate in a proceeding under this chapter, such as by 
failing to meet one or more deadlines or requirements set forth in the 
schedule adopted by the Board under subsection (k), without justifiable 
cause, the Board may issue a default determination, in accordance with 
regulations issued by the Register of Copyrights and the following:
            ``(1) Review of claimant's evidence.--The Board shall 
        review the relevant evidence and other information in support 
        of the claim and any asserted damages and, upon review of such 
        evidence and any other requested submissions from the claimant, 
        issue a default determination under subsection (u).
            ``(2) Default determination.--
                    ``(A) Preparation and notice.--If the Board finds 
                for the claimant under paragraph (1), the Board shall 
                prepare a default determination and provide a copy and 
                written notice thereof to the respondent at each 
                address, including each email address, included in the 
                records of the Board.
                    ``(B) Time to cure default.--The notice under 
                subparagraph (A) shall state that the respondent may 
                submit evidence and other information in opposition to 
                the proposed determination not later than the 30 days 
                after the date on which the notice is sent.
            ``(3) Claimant responds to notice of default.--If the 
        respondent responds to the notice under paragraph (2)(A) within 
        the period of time described under paragraph (2)(B), the Board 
        shall consider respondent's submissions and, after allowing the 
        other parties to address such submissions--
                    ``(A) amend the default determination; or
                    ``(B) enter a final determination subject to 
                section 1407(b).
            ``(4) Claimant fails to respond to notice of default.--If 
        the respondent fails to respond to the notice provided under 
        paragraph (2), the Board shall issue the default determination 
        as a final determination, subject to section 1407(b).
    ``(w) Failure To Proceed by Claimant or Counterclaimant.--
            ``(1) Failure to complete service.--If a claimant or 
        counterclaimant fails to complete service on a respondent 
        within the time provided under subsection (h), the respondent 
        shall be dismissed from the proceeding without prejudice. If a 
        claimant fails to complete service on all respondents within 
        such time, the proceeding shall be dismissed by the Board 
        without prejudice.
            ``(2) Failure to prosecute.--If a claimant fails to proceed 
        in a proceeding under this chapter, such as by any failure to 
        meet one or more deadlines or requirements set forth in the 
        schedule adopted by the Board pursuant to subsection (k), 
        without justifiable cause, the Board shall issue a final 
        determination under subsection (u) dismissing any relevant 
        claim or counterclaim (and awarding of attorneys' fees and 
        costs if appropriate under subsection (z)) and provide a copy 
        and written notice thereof to the claimant or counterclaimant 
        at each address, including each email address, included in the 
        records of the Board.
    ``(x) Reconsideration.--
            ``(1) Request for reconsideration.--A party may, not later 
        than 14 days after the date on which the Board issues a final 
        determination, submit a written request for reconsideration of, 
        or amendment to, the determination on the basis of an alleged 
        error. The request shall identify the alleged error of 
        procedure, law, or fact material to the outcome.
            ``(2) Determination.--After providing the other parties an 
        opportunity to address a request under paragraph (1), the Board 
        shall respond by either denying the request or issuing an 
        amended final determination.
    ``(y) Review by Register of Copyrights.--
            ``(1) Request for review.--A party who has been denied 
        reconsideration of a final determination by the Board may 
        request review of the denial by the Register of Copyrights not 
        later than 14 days after the date of the denial in accordance 
        with regulations issued by the Register of Copyrights, which 
        shall provide for a reasonable filing fee.
            ``(2) Standard of review.--A review under paragraph (1) 
        shall be limited to consideration of whether the Board abused 
        its discretion in denying reconsideration.
            ``(3) Decision.--After providing the other parties with an 
        opportunity to address the request under paragraph (1), the 
        Register shall respond by denying the request or remanding the 
        proceeding to the Board for reconsideration of issues 
        identified in the remand and the issuance of an amended final 
        determination. The amended final determination shall not be 
        subject to further consideration or review other than pursuant 
        to section 1407.
    ``(z) Conduct of Parties and Attorneys.--
            ``(1) Certification.--Each participant in a proceeding 
        under this chapter shall certify the accuracy and truthfulness 
        of any statement made before the Board under regulations issued 
        by the Register of Copyrights.
            ``(2) Bad faith.--In any final determination issued under 
        subsection (u), the Board may award, to each adversely affected 
        party, reasonable costs and attorneys' fees not to exceed a 
        total of $5,000 ($2,500 in the case of a party that proceeds 
        pro se) if--
                    ``(A) the Board finds that a party to the 
                proceeding pursued a claim, counterclaim, or defense 
                for an improper purpose or without reasonable basis in 
                law or fact; or
                    ``(B) a claim or counterclaim in the proceeding is 
                dismissed for failure to prosecute under subsection 
                (w)(2).
    ``(aa) Special Rule for Claims of $5,000 or Less.--Notwithstanding 
anything to the contrary in this chapter, the Register of Copyrights 
may issue regulations to provide for the disposition of any claim in 
which the total damages is $5,000 or less (exclusive of attorneys' fees 
and costs)--
            ``(1) that provide for one copyright claims officer to 
        consider and issue a determination with regard to the claim; 
        and
            ``(2) for which a copyright claims attorney shall review 
        the claim and determine whether the case shall be heard by one 
        officer or the Board.
``Sec. 1406. Effect of proceeding
    ``(a) Estoppel.--Subject to subsections (x) and (y) of section 1405 
and section 1407(b), a party to a proceeding under this chapter in 
which the Board has issued a final determination may not assert, in any 
proceeding, before any court or tribunal, any claim or counterclaim 
asserted and resolved by the final determination. The final 
determination may be cited or relied upon in a future proceeding except 
that--
            ``(1) a final determination of the Board may not preclude 
        litigation or relitigation between the same or different 
        parties before any court or tribunal of the same or similar 
        issues of fact or law in connection with a different claim or 
        counterclaim not asserted and finally determined by the 
        determination of the Board;
            ``(2) a determination of ownership of a copyrighted work 
        for purposes of resolving a proceeding before the Board may not 
        be relied upon, and shall have no preclusive effect, in any 
        action or proceeding before a court or tribunal, including the 
        Board; and
            ``(3) a final determination may not be cited or relied upon 
        as legal precedent in any other action or proceeding before any 
        court or tribunal, including the Board, other than as permitted 
        under this subsection and section 1407.
    ``(b) Other Materials in Proceeding.--Except as permitted under 
this section and section 1407, a submission or statement of a party or 
witness made in connection with a proceeding before the Board, 
including a proceeding that is dismissed, shall not be cited or relied 
upon in, or serve as the basis of, any action or proceeding under this 
title before any court or tribunal, including the Board.
    ``(c) Section 512(g).--Notwithstanding any other provision of law, 
the commencement of a proceeding by a claimant that is brought before 
the Board against a subscriber of a service provider in which the 
claimant seeks a declaration of infringement concerning material that 
has been removed or to which access has been disabled by the service 
provider in response to a notification of claimed infringement by the 
claimant pursuant to section 512(c)(1)(C) shall be a basis to preclude 
the replacement of such material by the service provider pursuant to 
section 512(g) if notice of the commencement of the Board proceeding is 
provided by the claimant to the service provider's designated agent not 
less than 10 and not more than 14 business days following receipt of a 
counternotification by the service provider pursuant to section 512(g).
    ``(d) Stay of District Court Proceedings.--A district court shall 
order a stay of proceedings or such other relief as the court 
determines to be appropriate with respect to any claim brought before 
the court that is the subject of a pending proceeding before the Board.
    ``(e) Failure To Assert Counterclaim.--The failure or inability to 
assert a counterclaim in a proceeding before the Board shall not 
preclude the assertion of the counterclaim in a subsequent court action 
or proceeding before the Board.
    ``(f) Opt-Out or Dismissal of Party.--If a party has timely opted 
out of a proceeding under section 1405(i) or is dismissed from a 
proceeding before the Board issues a final determination in the 
proceeding, the final determination shall not be binding upon and shall 
have no preclusive effect with respect to that party.
``Sec. 1407. Confirmation or review by district court
    ``(a) Confirmation by District Court.--
            ``(1) In general.--In any proceeding in which a party fails 
        to pay damages or otherwise comply with the relief awarded in a 
        final determination of the Board, the aggrieved party may 
        petition the United States District Court for the District of 
        Columbia, or any other Federal district court of competent 
        jurisdiction, for an order confirming the relief awarded not 
        later than 1 year after the latest of--
                    ``(A) the date on which the Board issued the final 
                determination under section 1405(u);
                    ``(B) the date on which the Board denies 
                reconsideration under section 1405(x);
                    ``(C) the date on which the Register of Copyrights 
                denies review under section 1405(y); or
                    ``(D) the date on which the Board issues an amended 
                final determination under subsection (x) or subsection 
                (y) of section 1405.
            ``(2) Relief.--The Court shall grant an order under 
        subsection (a) and direct entry of judgment unless the 
        determination is vacated, modified, or corrected as permitted 
        under subsection (b). The judgment shall be docketed as if 
        issued in an action in the United States District Court for the 
        District of Columbia, or any other Federal court of competent 
        jurisdiction, and shall be subject to all the provisions of law 
        relating to, and of the same force and effect as if the 
        judgment had been rendered in, an action in the jurisdiction.
            ``(3) Filing procedures.--
                    ``(A) Notice of filing.--Notice of the petition for 
                confirmation of a determination of the Board and entry 
                of judgment shall be provided to each party to the 
                proceeding before the Board, in accordance with the 
                procedures applicable to service of a motion in the 
                United States District Court. If a party to be served 
                is a nonresident, then notice of the petition shall be 
                served by the marshal of any district within which such 
                party may be found in the same manner as other process 
                of the court.
                    ``(B) Content of filing.--The petition shall 
                include a certified and dated copy of the determination 
                of the Board and a declaration by the petitioner, under 
                penalty of perjury, that it is a true and correct copy 
                of such determination and the date it was issued.
    ``(b) Challenges to a Determination.--
            ``(1) Bases for challenge.--Not later than 90 days after 
        the date of issuance of a final determination by the Board, a 
        party to the relevant proceeding may petition the United States 
        Court for the District of Columbia for an order vacating, 
        modifying, or correcting the final determination on the grounds 
        that--
                    ``(A) the final determination was issued as a 
                result of fraud, corruption, or as a result of 
                misconduct or undue means;
                    ``(B) the Board exceeded the authority of the 
                Board;
                    ``(C) the Board so imperfectly executed the duties 
                of the Board that the final determination was neither 
                final nor definite regarding the matter of controversy; 
                or
                    ``(D) the Board issued a default determination or 
                determination based on failure to prosecute and the 
                default or failure was due to excusable neglect.
            ``(2) Procedure to challenge.--
                    ``(A) Notice of filing.--Notice of the petition to 
                challenge a determination of the Board shall be 
                provided to each party to the proceeding before the 
                Board, in accordance with the procedures applicable to 
                service of a motion in the United States District Court 
                for the District of Columbia. If a party to be served 
                is a nonresident, then notice of the application shall 
                be served by the marshal of any district within which 
                such party may be found in the same manner as other 
                process of the court.
                    ``(B) Content of filing.--The petition shall 
                include a certified and dated copy of the determination 
                of the Board and a declaration by the petitioner, under 
                penalty of perjury, that it is a true and correct copy 
                of such determination and the date it was issued, and 
                the basis for challenge under paragraph (1). For the 
                purposes of the application, any judge who has the 
                authority to order a stay of the proceedings in an 
                action brought in the same court may make an order, to 
                be served with the notice of application, staying 
                proceedings to enforce the award.
``Sec. 1408. Referral of Cases by District Courts
    ``(a) Costs and Attorneys' Fees.--In any case before a United 
States district court in which the court is considering whether to 
award costs or attorneys' fees to a prevailing party under section 505, 
the district court may consider, among other relevant factors, whether 
the nonprevailing party had the option and could have chosen to proceed 
before the Board instead of the district court.
    ``(b) Alternative Dispute Resolution Process.--The Board shall 
qualify as an alternative dispute resolution process under section 651 
of title 28 for purposes of referral of eligible cases upon consent of 
the parties by United States district courts.
``Sec. 1409. Definitions
    ``In this chapter:
            ``(1) Party.--The term `party' refers to both a party and 
        the party's attorney, as applicable.
            ``(2) Person.--The term `person' (including `his' and 
        `her') refers to both an individual and an entity that is 
        amenable to legal process under applicable law.
            ``(3) Service provider.--The term `service provider' has 
        the meaning given that term in section 512(k).
``Sec. 1410. Funding
    ``(a) Deposit of Fees.--Any fee received by the Copyright Office 
under this title shall be deposited by the Register and credited to the 
appropriations for necessary expenses of the Office in accordance with 
subsection (d) of section 708.
    ``(b) Funding.--There are authorized to be appropriated such sums 
as may be necessary to pay the costs incurred by the Copyright Office 
that are not covered by fees collected for services rendered under this 
chapter, including the costs of establishing and maintaining the Board 
and the facilities of the Board.''.
    (b) Clerical Amendment.--The table of chapters for title 17, United 
States Code, is amended by adding after the item relating to chapter 13 
the following new item:

``14. Copyright Claims Board................................    1401''.
    (c) Implementation by Copyright Office.--
            (1) Regulations.--Not later than 90 days after the date of 
        the enactment of this Act, the Register of Copyrights shall 
        issue regulations necessary to carry out chapter 14 of title 
        17, United States Code, as added by subsection (a).
            (2) Necessary facilities.--The Register of Copyrights may 
        enter into a contract with an appropriate entity to establish 
        Internet-based teleconferencing or other facilities necessary 
        to carry out the amendment made by subsection (a).
            (3) Report.--Not later than 3 years after the date on which 
        the Copyright Claims Board, issues the first determination 
        under section 1405(u) of title 17 United States Code, as added 
        by subsection (a), the Register of Copyrights shall submit to 
        Congress a report on the following:
                    (A) The use and efficacy of the Copyright Claims 
                Board in resolving copyright claims.
                    (B) Whether adjustments to the authority of the 
                Copyright Claims Board, including eligible claims, 
                works, and applicable damages limitations, are 
                necessary or advisable.
                    (C) Whether greater allowance should be made to 
                permit awards of attorneys' fees and costs to 
                prevailing parties, including potential limitations on 
                such awards, in proceedings under this chapter.
                    (D) Potential mechanisms to assist copyright owners 
                with small claims in ascertaining the identity and 
                location of unknown online infringers.
                    (E) Whether the Copyright Claims Board should be 
                expanded to offer mediation or other nonbinding 
                alternative dispute resolution services to interested 
                parties.
                    (F) Such other matters as the Register of 
                Copyrights determines are pertinent to the Copyright 
                Claims Board.
                                 <all>