[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1273 Reported in Senate (RS)]

<DOC>





                                                       Calendar No. 206
116th CONGRESS
  1st Session
                                S. 1273

                          [Report No. 116-105]

  To amend title 17, United States Code, to establish an alternative 
 dispute resolution program for copyright small claims, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 1, 2019

  Mr. Kennedy (for himself, Mr. Durbin, Mr. Tillis, Ms. Hirono, Mrs. 
 Blackburn, Mrs. Shaheen, Mr. Udall, Mr. Cramer, Mr. Coons, Mr. Leahy, 
Mrs. Feinstein, Mr. Cornyn, Mr. Cruz, Mr. Blumenthal, and Mr. Heinrich) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

                           September 12, 2019

               Reported by Mr. Graham, without amendment

_______________________________________________________________________

                                 A BILL


 
  To amend title 17, United States Code, to establish an alternative 
 dispute resolution program for copyright small claims, 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 ``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

``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.
    ``(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, the claimant or 
                counterclaimant shall, in accordance with the schedule 
                established by the Copyright Claims Board under section 
                1506(k), elect--
                            ``(i) to pursue actual damages and profits 
                        or statutory damages under subparagraph (A); or
                            ``(ii) not to pursue 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 of 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. 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 attorneys' fees and costs 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 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). 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), 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.
                                                       Calendar No. 206

116th CONGRESS

  1st Session

                                S. 1273

                          [Report No. 116-105]

_______________________________________________________________________

                                 A BILL

  To amend title 17, United States Code, to establish an alternative 
 dispute resolution program for copyright small claims, and for other 
                               purposes.

_______________________________________________________________________

                           September 12, 2019

                       Reported without amendment