[Congressional Record Volume 165, Number 167 (Tuesday, October 22, 2019)]
[House]
[Pages H8345-H8354]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COPYRIGHT ALTERNATIVE IN SMALL-CLAIMS ENFORCEMENT ACT OF 2019
Mr. JEFFRIES. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 2426) to amend title 17, United States Code, to establish an
alternative dispute resolution program for copyright small claims, and
for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 2426
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
``Sec.
``1501. Definitions.
``1502. Copyright Claims Board.
``1503. Authority and duties of the Copyright Claims Board.
``1504. Nature of proceedings.
``1505. Registration requirement.
``1506. Conduct of proceedings.
``1507. Effect of proceeding.
``1508. Review and confirmation by district court.
``1509. Relationship to other district court actions.
``1510. Implementation by Copyright Office.
``1511. Funding.
``Sec. 1501. Definitions
``In this chapter--
``(1) the term `party'--
``(A) means a party; and
``(B) includes the attorney of a party, as applicable;
``(2) the term `claimant' means the real party in interest
that commences a proceeding before the Copyright Claims Board
under section 1506(e), pursuant to a permissible claim of
infringement brought under section 1504(c)(1),
noninfringement brought under section 1504(c)(2), or
misrepresentation brought under section 1504(c)(3);
``(3) the term `counterclaimant' means a respondent in a
proceeding before the Copyright Claims Board that--
``(A) asserts a permissible counterclaim under section
1504(c)(4) against the claimant in the proceeding; and
``(B) is the real party in interest with respect to the
counterclaim described in subparagraph (A); and
``(4) the term `respondent' means any person against whom a
proceeding is brought before the Copyright Claims Board under
section 1506(e), pursuant to a permissible claim of
infringement brought under section 1504(c)(1),
noninfringement brought under section 1504(c)(2), or
misrepresentation brought under section 1504(c)(3).
``Sec. 1502. Copyright Claims Board
``(a) In General.--There is established in the Copyright
Office the Copyright Claims Board, which shall serve as an
alternative forum in which parties may voluntarily seek to
resolve certain copyright claims regarding any category of
copyrighted work, as provided in this chapter.
``(b) Officers and Staff.--
``(1) Copyright claims officers.--The Register of
Copyrights shall recommend 3 full-time Copyright Claims
Officers to serve on the Copyright Claims Board in accordance
with paragraph (3)(A). The Officers shall be appointed by the
Librarian of Congress to such positions after consultation
with the Register of Copyrights.
``(2) Copyright claims attorneys.--The Register of
Copyrights shall hire not fewer than 2 full-time Copyright
Claims Attorneys to assist in the administration of the
Copyright Claims Board.
``(3) Qualifications.--
``(A) Copyright claims officers.--
``(i) In general.--Each Copyright Claims Officer shall be
an attorney who has not fewer than 7 years of legal
experience.
``(ii) Experience.--Two of the Copyright Claims Officers
shall have--
``(I) substantial experience in the evaluation, litigation,
or adjudication of copyright infringement claims; and
``(II) between those 2 Officers, have represented or
presided over a diversity of copyright interests, including
those of both owners and users of copyrighted works.
``(iii) Alternative dispute resolution.--The Copyright
Claims Officer not described in clause (ii) shall have
substantial familiarity with copyright law and experience in
the field of alternative dispute resolution, including the
resolution of litigation matters through that method of
resolution.
``(B) Copyright claims attorneys.--Each Copyright Claims
Attorney shall be an attorney who has not fewer than 3 years
of substantial experience in copyright law.
``(4) Compensation.--
``(A) Copyright claims officers.--
``(i) Definition.--In this subparagraph, the term `senior
level employee of the Federal Government' means an employee,
other than an employee in the Senior Executive Service, the
position of whom is classified above GS-15 of the General
Schedule.
``(ii) Pay range.--Each Copyright Claims Officer shall be
compensated at a rate of pay that is not less than the
minimum, and not more than the maximum, rate of pay payable
for senior level employees of the Federal Government,
including locality pay, as applicable.
``(B) Copyright claims attorneys.--Each Copyright Claims
Attorney shall be compensated at a rate of pay that is not
more than the maximum rate of pay payable for level 10 of GS-
15 of the General Schedule, including locality pay, as
applicable.
``(5) Terms.--
``(A) In general.--Subject to subparagraph (B), a Copyright
Claims Officer shall serve for a renewable term of 6 years.
[[Page H8346]]
``(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, any other court, or
any other forum, and to seek a jury trial, shall be
preserved. The rights, remedies, and limitations under this
section may not be waived except in accordance with this
chapter.
``(b) Statute of Limitations.--
``(1) In general.--A proceeding may not be maintained
before the Copyright Claims Board unless the proceeding is
commenced, in accordance with section 1506(e), before the
Copyright Claims Board within 3 years after the claim
accrued.
``(2) Tolling.--Subject to section 1507(a), a proceeding
commenced before the Copyright Claims Board shall toll the
time permitted under section 507(b) for the commencement of
an action on the same claim in a district court of the United
States during the period in which the proceeding is pending.
``(c) Permissible Claims, Counterclaims, and Defenses.--The
Copyright Claims Board may render determinations with respect
to the following claims, counterclaims, and defenses, subject
to such further limitations and requirements, including with
respect to particular classes of works, as may be set forth
in regulations established by the Register of Copyrights:
``(1) A claim for infringement of an exclusive right in a
copyrighted work provided under section 106 by the legal or
beneficial owner of the exclusive right at the time of the
infringement for which the claimant seeks damages, if any,
within the limitations set forth in subsection (e)(1).
``(2) A claim for a declaration of noninfringement of an
exclusive right in a copyrighted work provided under section
106, consistent with section 2201 of title 28.
``(3) A claim under section 512(f) for misrepresentation in
connection with a notification of claimed infringement or a
counter notification seeking to replace removed or disabled
material, except that any remedies relating to such a claim
in a proceeding before the Copyright Claims Board shall be
limited to those available under this chapter.
``(4) A counterclaim that is asserted solely against the
claimant in a proceeding--
``(A) pursuant to which the counterclaimant seeks damages,
if any, within the limitations set forth in subsection
(e)(1); and
``(B) that--
``(i) arises under section 106 or section 512(f) and out of
the same transaction or occurrence that is the subject of a
claim of infringement brought under paragraph (1), a claim of
noninfringement brought under paragraph (2), or a claim of
misrepresentation brought under paragraph (3); or
``(ii) arises under an agreement pertaining to the same
transaction or occurrence that is the subject of a claim of
infringement
[[Page H8347]]
brought under paragraph (1), if the agreement could affect
the relief awarded to the claimant.
``(5) A legal or equitable defense under this title or
otherwise available under law, in response to a claim or
counterclaim asserted under this subsection.
``(6) A single claim or multiple claims permitted under
paragraph (1), (2), or (3) by one or more claimants against
one or more respondents, but only if all claims asserted in
any one proceeding arise out of the same allegedly infringing
activity or continuous course of infringing activities and do
not, in the aggregate, result in the recovery of such claim
or claims for damages that exceed the limitations under
subsection (e)(1).
``(d) Excluded Claims.--The following claims and
counterclaims are not subject to determination by the
Copyright Claims Board:
``(1) A claim or counterclaim that is not a permissible
claim or counterclaim under subsection (c).
``(2) A claim or counterclaim that has been finally
adjudicated by a court of competent jurisdiction or that is
pending before a court of competent jurisdiction, unless that
court has granted a stay to permit that claim or counterclaim
to proceed before the Copyright Claims Board.
``(3) A claim or counterclaim by or against a Federal or
State governmental entity.
``(4) A claim or counterclaim asserted against a person or
entity residing outside of the United States, except in a
case in which the person or entity initiated the proceeding
before the Copyright Claims Board and is subject to
counterclaims under this chapter.
``(e) Permissible Remedies.--
``(1) Monetary recovery.--
``(A) Actual damages, profits, and statutory damages for
infringement.--With respect to a claim or counterclaim for
infringement of copyright, and subject to the limitation on
total monetary recovery under subparagraph (D), the Copyright
Claims Board may award either of the following:
``(i) Actual damages and profits determined in accordance
with section 504(b), with that award taking into
consideration, in appropriate cases, whether the infringing
party has agreed to cease or mitigate the infringing activity
under paragraph (2).
``(ii) Statutory damages, which shall be determined in
accordance with section 504(c), subject to the following
conditions:
``(I) With respect to works timely registered under section
412, so that the works are eligible for an award of statutory
damages in accordance with that section, the statutory
damages may not exceed $15,000 for each work infringed.
``(II) With respect to works not timely registered under
section 412, but eligible for an award of statutory damages
under this section, statutory damages may not exceed $7,500
per work infringed, or a total of $15,000 in any 1
proceeding.
``(III) The Copyright Claims Board may not make any finding
that, or consider whether, the infringement was committed
willfully in making an award of statutory damages.
``(IV) The Copyright Claims Board may consider, as an
additional factor in awarding statutory damages, whether the
infringer has agreed to cease or mitigate the infringing
activity under paragraph (2).
``(B) Election of damages.--With respect to a claim or
counterclaim of infringement, at any time before final
determination is rendered, and notwithstanding the schedule
established by the Copyright Claims Board under section
1506(k), the claimant or counterclaimant shall elect--
``(i) to recover actual damages and profits or statutory
damages under subparagraph (A); or
``(ii) not to recover damages.
``(C) Damages for other claims.--Damages for claims and
counterclaims other than infringement claims, such as those
brought under section 512(f), shall be subject to the
limitation under subparagraph (D).
``(D) Limitation on total monetary recovery.--
Notwithstanding any other provision of law, a party that
pursues any one or more claims or counterclaims in any single
proceeding before the Copyright Claims Board may not seek or
recover in that proceeding a total monetary recovery that
exceeds the sum of $30,000, exclusive of any attorneys' fees
and costs that may be awarded under section 1506(y)(2).
``(2) Agreement to cease certain activity.--In a
determination of the Copyright Claims Board, the Board shall
include a requirement to cease conduct if, in the proceeding
relating to the determination--
``(A) a party agrees--
``(i) to cease activity that is found to be infringing,
including removing or disabling access to, or destroying,
infringing materials; or
``(ii) to cease sending a takedown notice or counter notice
under section 512 to the other party regarding the conduct at
issue before the Board if that notice or counter notice was
found to be a knowing material misrepresentation under
section 512(f); and
``(B) the agreement described in subparagraph (A) is
reflected in the record for the proceeding.
``(3) Attorneys' fees and costs.--Notwithstanding any other
provision of law, except in the case of bad faith conduct as
provided in section 1506(y)(2), the parties to proceedings
before the Copyright Claims Board shall bear their own
attorneys' fees and costs.
``(f) Joint and Several Liability.--Parties to a proceeding
before the Copyright Claims Board may be found jointly and
severally liable if all such parties and relevant claims or
counterclaims arise from the same activity or activities.
``(g) Permissible Number of Cases.--The Register of
Copyrights may establish regulations relating to the
permitted number of proceedings each year by the same
claimant under this chapter, in the interests of justice and
the administration of the Copyright Claims Board.
``Sec. 1505. Registration requirement
``(a) Application or Certificate.--A claim or counterclaim
alleging infringement of an exclusive right in a copyrighted
work may not be asserted before the Copyright Claims Board
unless--
``(1) the legal or beneficial owner of the copyright has
first delivered a completed application, a deposit, and the
required fee for registration of the copyright to the
Copyright Office; and
``(2) a registration certificate has either been issued or
has not been refused.
``(b) Certificate of Registration.--Notwithstanding any
other provision of law, a claimant or counterclaimant in a
proceeding before the Copyright Claims Board shall be
eligible to recover actual damages and profits or statutory
damages under this chapter for infringement of a work if the
requirements of subsection (a) have been met, except that--
``(1) the Copyright Claims Board may not render a
determination in the proceeding until--
``(A) a registration certificate with respect to the work
has been issued by the Copyright Office, submitted to the
Copyright Claims Board, and made available to the other
parties to the proceeding; and
``(B) the other parties to the proceeding have been
provided an opportunity to address the registration
certificate;
``(2) if the proceeding may not proceed further because a
registration certificate for the work is pending, the
proceeding shall be held in abeyance pending submission of
the certificate to the Copyright Claims Board, except that,
if the proceeding is held in abeyance for more than 1 year,
the Copyright Claims Board may, upon providing written notice
to the parties to the proceeding, and 30 days to the parties
to respond to the notice, dismiss the proceeding without
prejudice; and
``(3) if the Copyright Claims Board receives notice that
registration with respect to the work has been refused, the
proceeding shall be dismissed without prejudice.
``(c) Presumption.--In a case in which a registration
certificate shows that registration with respect to a work
was issued not later than 5 years after the date of the first
publication of the work, the presumption under section 410(c)
shall apply in a proceeding before the Copyright Claims
Board, in addition to relevant principles of law under this
title.
``(d) Regulations.--In order to ensure that actions before
the Copyright Claims Board proceed in a timely manner, the
Register of Copyrights shall establish regulations allowing
the Copyright Office to make a decision, on an expedited
basis, to issue or deny copyright registration for an
unregistered work that is at issue before the Board.
``Sec. 1506. Conduct of proceedings
``(a) In General.--
``(1) Applicable law.--Proceedings of the Copyright Claims
Board shall be conducted in accordance with this chapter and
regulations established by the Register of Copyrights under
this chapter, in addition to relevant principles of law under
this title.
``(2) Conflicting precedent.--If it appears that there may
be conflicting judicial precedent on an issue of substantive
copyright law that cannot be reconciled, the Copyright Claims
Board shall follow the law of the Federal jurisdiction in
which the action could have been brought if filed in a
district court of the United States, or, if the action could
have been brought in more than 1 such jurisdiction, the
jurisdiction that the Copyright Claims Board determines has
the most significant ties to the parties and conduct at
issue.
``(b) Record.--The Copyright Claims Board shall maintain
records documenting the proceedings before the Board.
``(c) Centralized Process.--Proceedings before the
Copyright Claims Board shall--
``(1) be conducted at the offices of the Copyright Claims
Board without the requirement of in-person appearances by
parties or others; and
``(2) take place by means of written submissions, hearings,
and conferences carried out through internet-based
applications and other telecommunications facilities, except
that, in cases in which physical or other nontestimonial
evidence material to a proceeding cannot be furnished to the
Copyright Claims Board through available telecommunications
facilities, the Copyright Claims Board may make alternative
arrangements for the submission of such evidence that do not
prejudice any other party to the proceeding.
``(d) Representation.--A party to a proceeding before the
Copyright Claims Board may be, but is not required to be,
represented by--
``(1) an attorney; or
``(2) a law student who is qualified under applicable law
governing representation by law students of parties in legal
proceedings and who provides such representation on a pro
bono basis.
``(e) Commencement of Proceeding.--In order to commence a
proceeding under this
[[Page H8348]]
chapter, a claimant shall, subject to such additional
requirements as may be prescribed in regulations established
by the Register of Copyrights, file a claim with the
Copyright Claims Board, that--
``(1) includes a statement of material facts in support of
the claim;
``(2) is certified under subsection (y)(1); and
``(3) is accompanied by a filing fee in such amount as may
be prescribed in regulations established by the Register of
Copyrights.
``(f) Review of Claims and Counterclaims.--
``(1) Claims.--Upon the filing of a claim under subsection
(e), the claim shall be reviewed by a Copyright Claims
Attorney to ensure that the claim complies with this chapter
and applicable regulations, subject to the following:
``(A) If the claim is found to comply, the claimant shall
be notified regarding that compliance and instructed to
proceed with service of the claim under subsection (g).
``(B) If the claim is found not to comply, the claimant
shall be notified that the claim is deficient and be
permitted to file an amended claim not later than 30 days
after the date on which the claimant receives the notice,
without the requirement of an additional filing fee. If the
claimant files a compliant claim within that 30-day period,
the claimant shall be so notified and be instructed to
proceed with service of the claim. If the claim is refiled
within that 30-day period and still fails to comply, the
claimant shall again be notified that the claim is deficient
and shall be provided a second opportunity to amend the claim
within 30 days after the date of that second notice, without
the requirement of an additional filing fee. If the claim is
refiled again within that second 30-day period and is
compliant, the claimant shall be so notified and shall be
instructed to proceed with service of the claim, but if the
claim still fails to comply, upon confirmation of such
noncompliance by a Copyright Claims Officer, the proceeding
shall be dismissed without prejudice. The Copyright Claims
Board shall also dismiss without prejudice any proceeding in
which a compliant claim is not filed within the applicable
30-day period.
``(C)(i) Subject to clause (ii), for purposes of this
paragraph, a claim against an online service provider for
infringement by reason of the storage of or referral or
linking to infringing material that may be subject to the
limitations on liability set forth in subsection (b), (c), or
(d) of section 512 shall be considered noncompliant unless
the claimant affirms in the statement required under
subsection (e)(1) of this section that the claimant has
previously notified the service provider of the claimed
infringement in accordance with subsection (b)(2)(E), (c)(3),
or (d)(3) of section 512, as applicable, and the service
provider failed to remove or disable access to the material
expeditiously upon the provision of such notice.
``(ii) If a claim is found to be noncompliant under clause
(i), the Copyright Claims Board shall provide the claimant
with information concerning the service of such a notice
under the applicable provision of section 512.
``(2) Counterclaims.--Upon the filing and service of a
counterclaim, the counterclaim shall be reviewed by a
Copyright Claims Attorney to ensure that the counterclaim
complies with the provisions of this chapter and applicable
regulations. If the counterclaim is found not to comply, the
counterclaimant and the other parties to the proceeding shall
be notified that the counterclaim is deficient, and the
counterclaimant shall be permitted to file and serve an
amended counterclaim within 30 days after the date of such
notice. If the counterclaimant files and serves a compliant
counterclaim within that 30-day period, the counterclaimant
and such other parties shall be so notified. If the
counterclaim is refiled and served within that 30-day period
but still fails to comply, the counterclaimant and such other
parties shall again be notified that the counterclaim is
deficient, and the counterclaimant shall be provided a second
opportunity to amend the counterclaim within 30 days after
the date of the second notice. If the counterclaim is refiled
and served again within that second 30-day period and is
compliant, the counterclaimant and such other parties shall
be so notified, but if the counterclaim still fails to
comply, upon confirmation of such noncompliance by a
Copyright Claims Officer, the counterclaim, but not the
proceeding, shall be dismissed without prejudice.
``(3) Dismissal for unsuitability.--The Copyright Claims
Board shall dismiss a claim or counterclaim without prejudice
if, upon reviewing the claim or counterclaim, or at any other
time in the proceeding, the Copyright Claims Board concludes
that the claim or counterclaim is unsuitable for
determination by the Copyright Claims Board, including on
account of any of the following:
``(A) The failure to join a necessary party.
``(B) The lack of an essential witness, evidence, or expert
testimony.
``(C) The determination of a relevant issue of law or fact
that could exceed either the number of proceedings the
Copyright Claims Board could reasonably administer or the
subject matter competence of the Copyright Claims Board.
``(g) Service of Notice and Claims.--In order to proceed
with a claim against a respondent, a claimant shall, within
90 days after receiving notification under subsection (f) to
proceed with service, file with the Copyright Claims Board
proof of service on the respondent. In order to effectuate
service on a respondent, the claimant shall cause notice of
the proceeding and a copy of the claim to be served on the
respondent, either by personal service or pursuant to a
waiver of personal service, as prescribed in regulations
established by the Register of Copyrights. Such regulations
shall include the following requirements:
``(1) The notice of the proceeding shall adhere to a
prescribed form and shall set forth the nature of the
Copyright Claims Board and proceeding, the right of the
respondent to opt out, and the consequences of opting out and
not opting out, including a prominent statement that, by not
opting out within 60 days after receiving the notice, the
respondent--
``(A) loses the opportunity to have the dispute decided by
a court created under article III of the Constitution of the
United States; and
``(B) waives the right to a jury trial regarding the
dispute.
``(2) The copy of the claim served on the respondent shall
be the same as the claim that was filed with the Copyright
Claims Board.
``(3) Personal service of a notice and claim may be
effected by an individual who is not a party to the
proceeding and is older than 18 years of age.
``(4) An individual, other than a minor or incompetent
individual, may be served by--
``(A) complying with State law for serving a summons in an
action brought in courts of general jurisdiction in the State
where service is made;
``(B) delivering a copy of the notice and claim to the
individual personally;
``(C) leaving a copy of the notice and claim at the
individual's dwelling or usual place of abode with someone of
suitable age and discretion who resides there; or
``(D) delivering a copy of the notice and claim to an agent
designated by the respondent to receive service of process
or, if not so designated, an agent authorized by appointment
or by law to receive service of process.
``(5)(A) A corporation, partnership, or unincorporated
association that is subject to suit in courts of general
jurisdiction under a common name shall be served by
delivering a copy of the notice and claim to its service
agent. If such service agent has not been designated, service
shall be accomplished--
``(i) by complying with State law for serving a summons in
an action brought in courts of general jurisdiction in the
State where service is made; or
``(ii) by delivering a copy of the notice and claim to an
officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process in an action brought in courts of general
jurisdiction in the State where service is made and, if the
agent is one authorized by statute and the statute so
requires, by also mailing a copy of the notice and claim to
the respondent.
``(B) A corporation, partnership or unincorporated
association that is subject to suit in courts of general
jurisdiction under a common name may elect to designate a
service agent to receive notice of a claim against it before
the Copyright Claims Board by complying with requirements
that the Register of Copyrights shall establish by
regulation. The Register of Copyrights shall maintain a
current directory of service agents that is available to the
public for inspection, including through the internet, and
may require such corporations, partnerships, and
unincorporated associations designating such service agents
to pay a fee to cover the costs of maintaining the directory.
``(6) In order to request a waiver of personal service, the
claimant may notify a respondent, by first class mail or by
other reasonable means, that a proceeding has been commenced,
such notice to be made in accordance with regulations
established by the Register of Copyrights, subject to the
following:
``(A) Any such request shall be in writing, shall be
addressed to the respondent, and shall be accompanied by a
prescribed notice of the proceeding, a copy of the claim as
filed with the Copyright Claims Board, a prescribed form for
waiver of personal service, and a prepaid or other means of
returning the form without cost.
``(B) The request shall state the date on which the request
is sent, and shall provide the respondent a period of 30
days, beginning on the date on which the request is sent, to
return the waiver form signed by the respondent. The signed
waiver form shall, for purposes of this subsection,
constitute acceptance and proof of service as of the date on
which the waiver is signed.
``(7)(A) A respondent's waiver of personal service shall
not constitute a waiver of the respondent's right to opt out
of the proceeding.
``(B) A respondent who timely waives personal service under
paragraph (6) and does not opt out of the proceeding shall be
permitted a period of 30 days, in addition to the period
otherwise permitted under the applicable procedures of the
Copyright Claims Board, to submit a substantive response to
the claim, including any defenses and counterclaims.
``(8) A minor or an incompetent individual may only be
served by complying with State law for serving a summons or
like process on such an individual in an action brought in
the courts of general jurisdiction of the State where service
is made.
``(9) Service of a claim and waiver of personal service may
only be effected within the United States.
[[Page H8349]]
``(h) Notification by Copyright Claims Board.--The Register
of Copyrights shall establish regulations providing for a
written notification to be sent by, or on behalf of, the
Copyright Claims Board to notify the respondent of a pending
proceeding against the respondent, as set forth in those
regulations, which shall--
``(1) include information concerning the respondent's right
to opt out of the proceeding, the consequences of opting out
and not opting out, and a prominent statement that, by not
opting out within 60 days after the date of service under
subsection (g), the respondent loses the opportunity to have
the dispute decided by a court created under article III of
the Constitution of the United States and waives the right to
a jury trial regarding the dispute; and
``(2) be in addition to, and separate and apart from, the
notice requirements under subsection (g).
``(i) Opt-Out Procedure.--Upon being properly served with a
notice and claim, a respondent who chooses to opt out of the
proceeding shall have a period of 60 days, beginning on the
date of service, in which to provide written notice of such
choice to the Copyright Claims Board, in accordance with
regulations established by the Register of Copyrights. If
proof of service has been filed by the claimant and the
respondent does not submit an opt-out notice to the Copyright
Claims Board within that 60-day period, the proceeding shall
be deemed an active proceeding and the respondent shall be
bound by the determination in the proceeding to the extent
provided under section 1507(a). If the respondent opts out of
the proceeding during that 60-day period, the proceeding
shall be dismissed without prejudice, except that, in
exceptional circumstances and upon written notice to the
claimant, the Copyright Claims Board may extend that 60-day
period in the interests of justice.
``(j) Service of Other Documents.--Documents submitted or
relied upon in a proceeding, other than the notice and claim,
shall be served in accordance with regulations established by
the Register of Copyrights.
``(k) Scheduling.--Upon confirmation that a proceeding has
become an active proceeding, the Copyright Claims Board shall
issue a schedule for the future conduct of the proceeding.
The schedule shall not specify a time that a claimant or
counterclaimant is required make an election of damages that
is inconsistent with section 1504(e). A schedule issued by
the Copyright Claims Board may be amended by the Copyright
Claims Board in the interests of justice.
``(l) Conferences.--One or more Copyright Claims Officers
may hold a conference to address case management or discovery
issues in a proceeding, which shall be noted upon the record
of the proceeding and may be recorded or transcribed.
``(m) Party Submissions.--A proceeding of the Copyright
Claims Board may not include any formal motion practice,
except that, subject to applicable regulations and procedures
of the Copyright Claims Board--
``(1) the parties to the proceeding may make requests to
the Copyright Claims Board to address case management and
discovery matters, and submit responses thereto; and
``(2) the Copyright Claims Board may request or permit
parties to make submissions addressing relevant questions of
fact or law, or other matters, including matters raised sua
sponte by the Copyright Claims Officers, and offer responses
thereto.
``(n) Discovery.--Discovery in a proceeding shall be
limited to the production of relevant information and
documents, written interrogatories, and written requests for
admission, as provided in regulations established by the
Register of Copyrights, except that--
``(1) upon the request of a party, and for good cause
shown, the Copyright Claims Board may approve additional
relevant discovery, on a limited basis, in particular
matters, and may request specific information and documents
from participants in the proceeding and voluntary submissions
from nonparticipants, consistent with the interests of
justice;
``(2) upon the request of a party, and for good cause
shown, the Copyright Claims Board may issue a protective
order to limit the disclosure of documents or testimony that
contain confidential information; and
``(3) after providing notice and an opportunity to respond,
and upon good cause shown, the Copyright Claims Board may
apply an adverse inference with respect to disputed facts
against a party who has failed to timely provide discovery
materials in response to a proper request for materials that
could be relevant to such facts.
``(o) Evidence.--The Copyright Claims Board may consider
the following types of evidence in a proceeding, and such
evidence may be admitted without application of formal rules
of evidence:
``(1) Documentary and other nontestimonial evidence that is
relevant to the claims, counterclaims, or defenses in the
proceeding.
``(2) Testimonial evidence, submitted under penalty of
perjury in written form or in accordance with subsection (p),
limited to statements of the parties and nonexpert witnesses,
that is relevant to the claims, counterclaims, and defenses
in a proceeding, except that, in exceptional cases, expert
witness testimony or other types of testimony may be
permitted by the Copyright Claims Board for good cause shown.
``(p) Hearings.--The Copyright Claims Board may conduct a
hearing to receive oral presentations on issues of fact or
law from parties and witnesses to a proceeding, including
oral testimony, subject to the following:
``(1) Any such hearing shall be attended by not fewer than
two of the Copyright Claims Officers.
``(2) The hearing shall be noted upon the record of the
proceeding and, subject to paragraph (3), may be recorded or
transcribed as deemed necessary by the Copyright Claims
Board.
``(3) A recording or transcript of the hearing shall be
made available to any Copyright Claims Officer who is not in
attendance.
``(q) Voluntary Dismissal.--
``(1) By claimant.--Upon the written request of a claimant
that is received before a respondent files a response to the
claim in a proceeding, the Copyright Claims Board shall
dismiss the proceeding, or a claim or respondent, as
requested, without prejudice.
``(2) By counterclaimant.--Upon written request of a
counterclaimant that is received before a claimant files a
response to the counterclaim, the Copyright Claims Board
shall dismiss the counterclaim, such dismissal to be without
prejudice.
``(3) Class actions.--Any party in an active proceeding
before the Copyright Claims Board who receives notice of a
pending or putative class action, arising out of the same
transaction or occurrence, in which that party is a class
member may request in writing dismissal of the proceeding
before the Board. Upon notice to all claimants and
counterclaimants, the Copyright Claims Board shall dismiss
the proceeding without prejudice.
``(r) Settlement.--
``(1) In general.--At any time in an active proceeding,
some or all of the parties may--
``(A) jointly request a conference with a Copyright Claims
Officer for the purpose of facilitating settlement
discussions; or
``(B) submit to the Copyright Claims Board an agreement
providing for settlement and dismissal of some or all of the
claims and counterclaims in the proceeding.
``(2) Additional request.--A submission under paragraph
(1)(B) may include a request that the Copyright Claims Board
adopt some or all of the terms of the parties' settlement in
a final determination in the proceeding.
``(s) Factual Findings.--Subject to subsection (n)(3), the
Copyright Claims Board shall make factual findings based upon
a preponderance of the evidence.
``(t) Determinations.--
``(1) Nature and contents.--A determination rendered by the
Copyright Claims Board in a proceeding shall--
``(A) be reached by a majority of the Copyright Claims
Board;
``(B) be in writing, and include an explanation of the
factual and legal basis of the determination;
``(C) set forth any terms by which a respondent or
counterclaim respondent has agreed to cease infringing
activity under section 1504(e)(2);
``(D) to the extent requested under subsection (r)(2), set
forth the terms of any settlement agreed to under subsection
(r)(1); and
``(E) include a clear statement of all damages and other
relief awarded, including under subparagraphs (C) and (D).
``(2) Dissent.--A Copyright Claims Officer who dissents
from a decision contained in a determination under paragraph
(1) may append a statement setting forth the grounds for that
dissent.
``(3) Publication.--Each final determination of the
Copyright Claims Board shall be made available on a publicly
accessible website. The Register shall establish regulations
with respect to the publication of other records and
information relating to such determinations, including the
redaction of records to protect confidential information that
is the subject of a protective order under subsection (n)(2).
``(4) Freedom of information act.--All information relating
to proceedings of the Copyright Claims Board under this title
is exempt from disclosure to the public under section
552(b)(3) of title 5, except for determinations, records, and
information published under paragraph (3).
``(u) Respondent's Default.--If a proceeding has been
deemed an active proceeding but the respondent has failed to
appear or has ceased participating in the proceeding, as
demonstrated by the respondent's failure, without justifiable
cause, to meet one or more deadlines or requirements set
forth in the schedule adopted by the Copyright Claims Board
under subsection (k), the Copyright Claims Board may enter a
default determination, including the dismissal of any
counterclaim asserted by the respondent, as follows and in
accordance with such other requirements as the Register of
Copyrights may establish by regulation:
``(1) The Copyright Claims Board shall require the claimant
to submit relevant evidence and other information in support
of the claimant's claim and any asserted damages and, upon
review of such evidence and any other requested submissions
from the claimant, shall determine whether the materials so
submitted are sufficient to support a finding in favor of the
claimant under applicable law and, if so, the appropriate
relief and damages, if any, to be awarded.
``(2) If the Copyright Claims Board makes an affirmative
determination under paragraph (1), the Copyright Claims Board
shall prepare a proposed default determination,
[[Page H8350]]
and shall provide written notice to the respondent at all
addresses, including email addresses, reflected in the
records of the proceeding before the Copyright Claims Board,
of the pendency of a default determination by the Copyright
Claims Board and of the legal significance of such
determination. Such notice shall be accompanied by the
proposed default determination and shall provide that the
respondent has a period of 30 days, beginning on the date of
the notice, to submit any evidence or other information in
opposition to the proposed default determination.
``(3) If the respondent responds to the notice provided
under paragraph (2) within the 30-day period provided in such
paragraph, the Copyright Claims Board shall consider
respondent's submissions and, after allowing the other
parties to address such submissions, maintain, or amend its
proposed determination as appropriate, and the resulting
determination shall not be a default determination.
``(4) If the respondent fails to respond to the notice
provided under paragraph (2), the Copyright Claims Board
shall proceed to issue the default determination as a final
determination. Thereafter, the respondent may only challenge
such determination to the extent permitted under section
1508(c), except that, before any additional proceedings are
initiated under section 1508, the Copyright Claims Board may,
in the interests of justice, vacate the default
determination.
``(v) Claimant's Failure To Proceed.--
``(1) Failure to complete service.--If a claimant fails to
complete service on a respondent within the 90-day period
required under subsection (g), the Copyright Claims Board
shall dismiss that respondent from the proceeding without
prejudice. If a claimant fails to complete service on all
respondents within that 90-day period, the Copyright Claims
Board shall dismiss the proceeding without prejudice.
``(2) Failure to prosecute.--If a claimant fails to proceed
in an active proceeding, as demonstrated by the claimant's
failure, without justifiable cause, to meet one or more
deadlines or requirements set forth in the schedule adopted
by the Copyright Claims Board under subsection (k), the
Copyright Claims Board may, upon providing written notice to
the claimant and a period of 30 days, beginning on the date
of the notice, to respond to the notice, and after
considering any such response, issue a determination
dismissing the claimants' claims, which shall include an
award of attorneys' fees and costs, if appropriate, under
subsection (y)(2). Thereafter, the claimant may only
challenge such determination to the extent permitted under
section 1508(c), except that, before any additional
proceedings are initiated under section 1508, the Copyright
Claims Board may, in the interests of justice, vacate the
determination of dismissal.
``(w) Request for Reconsideration.--A party may, within 30
days after the date on which the Copyright Claims Board
issues a final determination in a proceeding under this
chapter, submit a written request for reconsideration of, or
an amendment to, such determination if the party identifies a
clear error of law or fact material to the outcome, or a
technical mistake. After providing the other parties an
opportunity to address such request, the Copyright Claims
Board shall either deny the request or issue an amended final
determination.
``(x) Review by Register.--If the Copyright Claims Board
denies a party a request for reconsideration of a final
determination under subsection (w), that party may, within 30
days after the date of such denial, request review of the
final determination by the Register of Copyrights in
accordance with regulations established by the Register. Such
request shall be accompanied by a reasonable filing fee, as
provided in such regulations. The review by the Register
shall be limited to consideration of whether the Copyright
Claims Board abused its discretion in denying reconsideration
of the determination. After providing the other parties an
opportunity to address the request, the Register shall either
deny the request for review, or remand the proceeding to the
Copyright Claims Board for reconsideration of issues
specified in the remand and for issuance of an amended final
determination. Such amended final determination shall not be
subject to further consideration or review, other than under
section 1508(c).
``(y) Conduct of Parties and Attorneys.--
``(1) Certification.--The Register of Copyrights shall
establish regulations requiring certification of the accuracy
and truthfulness of statements made by participants in
proceedings before the Copyright Claims Board.
``(2) Bad faith conduct.--Notwithstanding any other
provision of law, in any proceeding in which a determination
is rendered and it is established that a party pursued a
claim, counterclaim, or defense for a harassing or other
improper purpose, or without a reasonable basis in law or
fact, then, unless inconsistent with the interests of
justice, the Copyright Claims Board shall in such
determination award reasonable costs and attorneys' fees to
any adversely affected party of in an amount of not more than
$5,000, except that--
``(A) if an adversely affected party appeared pro se in the
proceeding, the award to that party shall be for costs only,
in an amount of not more than $2,500; and
``(B) in extraordinary circumstances, such as where a party
has demonstrated a pattern or practice of bad faith conduct
as described in this paragraph, the Copyright Claims Board
may, in the interests of justice, award costs and attorneys'
fees in excess of the limitations under this paragraph.
``(3) Additional penalty.--If the Board finds that on more
than one occasion within a 12-month period a party pursued a
claim, counterclaim, or defense before the Copyright Claims
Board for a harassing or other improper purpose, or without a
reasonable basis in law or fact, that party shall be barred
from initiating a claim before the Copyright Claims Board
under this chapter for a period of 12 months beginning on the
date on which the Board makes such a finding. Any proceeding
commenced by that party that is still pending before the
Board when such a finding is made shall be dismissed without
prejudice, except that if a proceeding has been deemed active
under subsection (i), the proceeding shall be dismissed under
this paragraph only if the respondent provides written
consent thereto.
``(z) Regulations for Smaller Claims.--The Register of
Copyrights shall establish regulations to provide for the
consideration and determination, by at least one Copyright
Claims Officer, of any claim under this chapter in which
total damages sought do not exceed $5,000 (exclusive of
attorneys' fees and costs) that are otherwise consistent with
this chapter. A determination issued under this subsection
shall have the same effect as a determination issued by the
entire Copyright Claims Board.
``Sec. 1507. Effect of proceeding
``(a) Determination.--Subject to the reconsideration and
review processes provided under subsections (w) and (x) of
section 1506 and section 1508(c), the issuance of a final
determination by the Copyright Claims Board in a proceeding,
including a default determination or determination based on a
failure to prosecute, shall, solely with respect to the
parties to such determination, preclude relitigation before
any court or tribunal, or before the Copyright Claims Board,
of the claims and counterclaims asserted and finally
determined by the Board, and may be relied upon for such
purpose in a future action or proceeding arising from the
same specific activity or activities, subject to the
following:
``(1) A determination of the Copyright Claims Board shall
not preclude litigation or relitigation as between the same
or different parties before any court or tribunal, or the
Copyright Claims Board, of the same or similar issues of fact
or law in connection with claims or counterclaims not
asserted or not finally determined by the Copyright Claims
Board.
``(2) A determination of ownership of a copyrighted work
for purposes of resolving a matter before the Copyright
Claims Board may not be relied upon, and shall not have any
preclusive effect, in any other action or proceeding before
any court or tribunal, including the Copyright Claims Board.
``(3) Except to the extent permitted under this subsection
and section 1508, any determination of the Copyright Claims
Board may not be cited or relied upon as legal precedent in
any other action or proceeding before any court or tribunal,
including the Copyright Claims Board.
``(b) Class Actions Not Affected.--
``(1) In general.--A proceeding before the Copyright Claims
Board shall not have any effect on a class action proceeding
in a district court of the United States, and section 1509(a)
shall not apply to a class action proceeding in a district
court of the United States.
``(2) Notice of class action.--Any party to an active
proceeding before the Copyright Claims Board who receives
notice of a pending class action, arising out of the same
transaction or occurrence as the proceeding before the
Copyright Claims Board, in which the party is a class member
shall either--
``(A) opt out of the class action, in accordance with
regulations established by the Register of Copyrights; or
``(B) seek dismissal under section 1506(q)(3) of the
proceeding before the Copyright Claims Board.
``(c) Other Materials in Proceeding.--Except as permitted
under this section and section 1508, a submission or
statement of a party or witness made in connection with a
proceeding before the Copyright Claims Board, including a
proceeding that is dismissed, may not be cited or relied upon
in, or serve as the basis of, any action or proceeding
concerning rights or limitations on rights under this title
before any court or tribunal, including the Copyright Claims
Board.
``(d) Applicability of Section 512(g).--A claim or
counterclaim before the Copyright Claims Board that is
brought under subsection (c)(1) or (c)(4) of section 1504, or
brought under subsection (c)(6) of section 1504 and that
relates to a claim under subsection (c)(1) or (c)(4) of such
section, qualifies as an action seeking an order to restrain
a subscriber from engaging in infringing activity under
section 512(g)(2)(C) if--
``(1) notice of the commencement of the Copyright Claims
Board proceeding is provided by the claimant to the service
provider's designated agent before the service provider
replaces the material following receipt of a counter
notification under section 512(g); and
``(2) the claim brought alleges infringement of the
material identified in the notification of claimed
infringement under section 512(c)(1)(C).
[[Page H8351]]
``(e) Failure To Assert Counterclaim.--The failure or
inability to assert a counterclaim in a proceeding before the
Copyright Claims Board shall not preclude the assertion of
that counterclaim in a subsequent court action or proceeding
before the Copyright Claims Board.
``(f) Opt-Out or Dismissal of Party.--If a party has timely
opted out of a proceeding under section 1506(i) or is
dismissed from a proceeding before the Copyright Claims Board
issues a final determination in the proceeding, the
determination shall not be binding upon and shall have no
preclusive effect with respect to that party.
``Sec. 1508. Review and confirmation by district court
``(a) In General.--In any proceeding in which a party has
failed to pay damages, or has failed otherwise to comply with
the relief, awarded in a final determination of the Copyright
Claims Board, including a default determination or a
determination based on a failure to prosecute, the aggrieved
party may, not later than 1 year after the date on which the
final determination is issued, any reconsideration by the
Copyright Claims Board or review by the Register of
Copyrights is resolved, or an amended final determination is
issued, whichever occurs last, apply to the United States
District Court for the District of Columbia or any other
appropriate district court of the United States for an order
confirming the relief awarded in the final determination and
reducing such award to judgment. The court shall grant such
order and direct entry of judgment unless the determination
is or has been vacated, modified, or corrected under
subsection (c). If the United States District Court for the
District of Columbia or other district court of the United
States, as the case may be, issues an order confirming the
relief awarded by the Copyright Claims Board, the court shall
impose on the party who failed to pay damages or otherwise
comply with the relief, the reasonable expenses required to
secure such order, including attorneys' fees, that were
incurred by the aggrieved party.
``(b) Filing Procedures.--
``(1) Application to confirm determination.--Notice of the
application under subsection (a) for confirmation of a
determination of the Copyright Claims Board and entry of
judgment shall be provided to all parties to the proceeding
before the Copyright Claims Board that resulted in the
determination, in accordance with the procedures applicable
to service of a motion in the district court of the United
States where the application is made.
``(2) Contents of application.--The application shall
include the following:
``(A) A certified copy of the final or amended final
determination of the Copyright Claims Board, as reflected in
the records of the Copyright Claims Board, following any
process of reconsideration or review by the Register of
Copyrights, to be confirmed and rendered to judgment.
``(B) A declaration by the applicant, under penalty of
perjury--
``(i) that the copy is a true and correct copy of such
determination;
``(ii) stating the date it was issued;
``(iii) stating the basis for the challenge under
subsection (c)(1); and
``(iv) stating whether the applicant is aware of any other
proceedings before the court concerning the same
determination of the Copyright Claims Board.
``(c) Challenges to the Determination.--
``(1) Bases for challenge.--Not later than 90 days after
the date on which Copyright Claims Board issues a final or
amended final determination in a proceeding, or not later
than 90 days after the date on which the Register of
Copyrights completes any process of reconsideration or review
of the determination, whichever occurs later, a party may
seek a court order vacating, modifying, or correcting the
determination of the Copyright Claims Board in the following
cases:
``(A) If the determination was issued as a result of fraud,
corruption, misrepresentation, or other misconduct.
``(B) If the Copyright Claims Board exceeded its authority
or failed to render a final determination concerning the
subject matter at issue.
``(C) In the case of a default determination or
determination based on a failure to prosecute, if it is
established that the default or failure was due to excusable
neglect.
``(2) Procedure to challenge.--
``(A) Notice of application.--Notice of the application to
challenge a determination of the Copyright Claims Board shall
be provided to all parties to the proceeding before the
Copyright Claims Board, in accordance with the procedures
applicable to service of a motion in the court where the
application is made.
``(B) Staying of proceedings.--For purposes of an
application under this subsection, any judge who is
authorized to issue an order to stay the proceedings in an
any other action brought in the same court may issue an
order, to be served with the notice of application, staying
proceedings to enforce the award while the challenge is
pending.
``Sec. 1509. Relationship to other district court actions
``(a) Stay of District Court Proceedings.--Subject to
section 1507(b), a district court of the United States shall
issue a stay of proceedings or such other relief as the court
determines appropriate with respect to any claim brought
before the court that is already the subject of a pending or
active proceeding before the Copyright Claims Board.
``(b) Alternative Dispute Resolution Process.--A proceeding
before the Copyright Claims Board under this chapter shall
qualify as an alternative dispute resolution process under
section 651 of title 28 for purposes of referral of eligible
cases by district courts of the United States upon the
consent of the parties.
``Sec. 1510. Implementation by Copyright Office
``(a) Regulations.--
``(1) Implementation generally.--The Register of Copyrights
shall establish regulations to carry out this chapter. Such
regulations shall include the fees prescribed under
subsections (e) and (x) of section 1506. The authority to
issue such fees shall not limit the authority of the Register
of Copyrights to establish fees for services under section
708. All fees received by the Copyright Office in connection
with the activities under this chapter shall be deposited by
the Register of Copyrights and credited to the appropriations
for necessary expenses of the Office in accordance with
section 708(d). In establishing regulations under this
subsection, the Register of Copyrights shall provide for the
efficient administration of the Copyright Claims Board, and
for the ability of the Copyright Claims Board to timely
complete proceedings instituted under this chapter, including
by implementing mechanisms to prevent harassing or improper
use of the Copyright Claims Board by any party.
``(2) Limits on monetary relief.--
``(A) In general.--Subject to subparagraph (B), not earlier
than 3 years after the date on which Copyright Claims Board
issues the first determination of the Copyright Claims Board,
the Register of Copyrights may, in order to further the goals
of the Copyright Claims Board, conduct a rulemaking to adjust
the limits on monetary recovery or attorneys' fees and costs
that may be awarded under this chapter.
``(B) Effective date of adjustment.--Any rule under
subparagraph (A) that makes an adjustment shall take effect
at the end of the 120-day period beginning on the date on
which the Register of Copyrights submits the rule to Congress
and only if Congress does not, during that 120-day period,
enact a law that provides in substance that Congress does not
approve the rule.
``(b) Necessary Facilities.--Subject to applicable law, the
Register of Copyrights may retain outside vendors to
establish internet-based, teleconferencing, and other
facilities required to operate the Copyright Claims Board.
``(c) Fees.--Any filing fees, including the fee to commence
a proceeding under section 1506(e), shall be prescribed in
regulations established by the Register of Copyrights. The
sum total of such filing fees shall be in an amount of at
least $100, may not exceed the cost of filing an action in a
district court of the United States, and shall be fixed in
amounts that further the goals of the Copyright Claims Board.
``Sec. 1511. Funding
``There are authorized to be appropriated such sums as may
be necessary to pay the costs incurred by the Copyright
Office under this chapter that are not covered by fees
collected for services rendered under this chapter, including
the costs of establishing and maintaining the Copyright
Claims Board and its facilities.''.
(b) Clerical Amendment.--The table of chapters for title
17, United States Code, is amended by adding after the item
relating to chapter 14 the following:
``15. Copyright Small Claims................................1501''.....
SEC. 3. IMPLEMENTATION.
Not later 1 year after the date of enactment of this Act,
the Copyright Claims Board established under section 1502 of
title 17, United States Code, as added by section 2 of this
Act, shall begin operations.
SEC. 4. STUDY.
Not later than 3 years after the date on which Copyright
Claims Board issues the first determination of the Copyright
Claims Board under chapter 15 of title 17, United States
Code, as added by section 2 of this Act, the Register of
Copyrights shall conduct, and report to Congress on, a study
that addresses the following:
(1) The use and efficacy of the Copyright Claims Board in
resolving copyright claims, including the number of
proceedings the Copyright Claims Board could reasonably
administer.
(2) Whether adjustments to the authority of the Copyright
Claims Board are necessary or advisable, including with
respect to--
(A) eligible claims, such as claims under section 1202 of
title 17, United States Code; and
(B) works and applicable damages limitations.
(3) Whether greater allowance should be made to permit
awards of attorneys' fees and costs to prevailing parties,
including potential limitations on such awards.
(4) Potential mechanisms to assist copyright owners with
small claims in ascertaining the identity and location of
unknown online infringers.
(5) Whether the Copyright Claims Board should be expanded
to offer mediation or other nonbinding alternative dispute
resolution services to interested parties.
(6) Such other matters as the Register of Copyrights
believes may be pertinent concerning the Copyright Claims
Board.
SEC. 5. SEVERABILITY.
If any provision of this Act, an amendment made by this
Act, or the application of such
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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.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from New
York (Mr. Jeffries) and the gentleman from Virginia (Mr. Cline) each
will control 20 minutes.
The Chair recognizes the gentleman from New York.
General Leave
Mr. JEFFRIES. Mr. Speaker, I ask unanimous consent that all Members
have 5 legislative days to revise and extend their remarks and include
extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from New York?
There was no objection.
Mr. JEFFRIES. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, today, we will vote on H.R. 2426, the Copyright
Alternative in Small-Claims Enforcement Act, otherwise known as the
CASE Act, a bill that will allow creators to protect their copyrighted
work under law.
Copyright infringement is not a victimless crime. Photographers,
illustrators, visual artists, authors, songwriters, and musicians all
rely upon their protected works to put food on the table, clothing on
their backs, and support their families. When their copyrighted work is
used unlawfully or pirated, that is the functional equivalent of a
burglary.
But small creators victimized by infringement often find themselves
in a tough spot. They have a right to enforce their work under
copyright law but are often unable to do so in a practical sense.
On the one hand, you have the notice and takedown process that can be
inefficient, cumbersome, and, as many small creators will tell you,
often pointless. On the other hand, there is the Article III Federal
court system that can be expensive, time-consuming, and often out of
reach for many working-class and middle-class creators.
For instance, the average cost of litigating an infringement case in
Federal court is approximately $350,000, but the total amount of
damages that can be awarded, for instance, in a CASE Act-eligible
matter cannot exceed $30,000. In that instance, the cost of litigating
a case could be more than 10 times the damages that are at issue.
According to a survey by the American Bar Association, which supports
this legislation, most lawyers will not take infringement cases with
damages at or lower than $30,000. As a result, many petitioners are
functionally unable to vindicate their rights under law. In other
words, these creators are given a right without a remedy.
The CASE Act will provide a viable alternative. This legislation
would establish a voluntary forum for small copyright claims housed
within the Copyright Office. Disputes would be heard by a new entity
called the Copyright Claims Board made up of intellectual property
experts with experience representing both creators and the users of
copyrighted material.
Unlike Federal court, the cases before the board will have limited
damages. Parties would not have to appear in person and can proceed, if
they choose, without an attorney.
These provisions address the significant burdens that currently
exist, imposed by Federal court litigation, making this system more
user-friendly for all, regardless of your side, but inclusive of
working-class and middle-class members of the creative community.
Both sides must agree to participate in order for the small claims
tribunal to have jurisdiction. It is a voluntary system where either
side can opt out.
Simply put, the legislation allows for copyright disputes to be
resolved in a fair, timely, and affordable manner.
I urge my colleagues to support this bill, and I reserve the balance
of my time.
Mr. CLINE. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I thank the gentleman from New York for his leadership
on this important issue.
The United States Constitution expressly calls for the protection of
creative works in order to promote innovation and creativity. Under
that lofty authority, Congress established the copyright system. As was
the hope, copyright-intensive industries have become critical to our
economy, reportedly contributing more than $1 trillion.
Unfortunately, in the system that we have today, many small
businesses and individuals are unable to enforce their copyrights
because they do not have deep enough pockets. It costs tens or hundreds
of thousands of dollars to hire lawyers to litigate a copyright claim
in Federal court.
Sadly, this forces individuals to stand idly by as thieves profit off
of their work. Our Founding Fathers wouldn't want a copyright system
that discourages creators. After all, they wanted to create a system
that fosters the creation of artistic works. That is why so many
members of the Judiciary Committee helped craft legislation to stop the
theft of copyrighted works and so many Members of the House have joined
in support of it.
H.R. 2426, the CASE Act, would establish a copyright small claims
proceeding within the Copyright Office to provide a less expensive
alternative to costly Federal court litigation.
The proceedings would be simple, conducted remotely, handled by a
panel of copyright experts, and limited to straightforward cases of
alleged copyright infringement.
Damage awards would be low, reaching a maximum of no greater than
$15,000 per work, with a total award for a case capped at $30,000.
Participation in such a small claims proceeding would be completely
voluntary, and anyone falsely accused of infringement could simply opt
out of the small claims proceeding.
The CASE Act includes a number of other safeguards to prevent abuse.
The Copyright Office is authorized to limit the number of cases one
person can file and will review the allegations for sufficiency before
forwarding them to the accused infringer.
If an accuser files in bad faith, he or she would have to pay fees to
the party falsely accused of infringement and be barred for 1 year.
Several other provisions of H.R. 2426 would protect against
inadvertent default judgments. They include requirements that the
accused infringer be physically served; the complaint warn the accused
infringer of the ramifications of not responding; and the accused be
given several notices and chances to respond to the allegations against
them.
Most importantly, before a default judgment can be granted, the
copyright owner must establish that their copyright was actually
infringed by the accused.
The bill is intended to provide a streamlined, inexpensive
alternative for parties to resolve small claims of copyright
infringement outside of court. H.R. 2426 accomplishes all of these
goals.
I am proud to join my colleagues--Congressman Jeffries, Ranking
Member Collins, Chairman Nadler, Martha Roby, Hank Johnson, Judy Chu,
Ted Lieu, and Brian Fitzpatrick--to provide an important avenue of
relief to the creators in our communities who provide such significant
support to our local economies.
I urge my colleagues to support this legislation, and I reserve the
balance of my time.
Mr. JEFFRIES. Mr. Speaker, let me first thank the distinguished
gentleman from the Commonwealth of Virginia (Mr. Cline) for his
leadership as it relates to the CASE Act.
Mr. Speaker, I yield 4 minutes to the gentleman from New York (Mr.
Nadler), the distinguished chair of the House Judiciary Committee.
Mr. NADLER. Mr. Speaker, I thank the gentleman for yielding.
Mr. Speaker, I rise in strong support of H.R. 2426, the Copyright
Alternative in Small-Claims Enforcement Act of 2019, or the CASE Act.
This important bipartisan legislation would establish a voluntary
small claims court within the Copyright Office to hear copyright suits
seeking $30,000 or less in total damages.
Today, many small creators, especially visual artists, are unable to
protect their rights because the cost of pursuing an infringement claim
in Federal court is far greater, as much as 10 times or more than the
damages they could ever hope to receive. Few attorneys would take a
case when such limited damages are at stake because they would not
likely recoup their costs.
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It is a fundamental principle of the American legal system that a
right must have a remedy. But if it costs $250,000 to recover a few
thousand dollars from someone who has infringed your copyright, then
what remedy do you really have?
The CASE Act would provide important protections for the many
independent creators who are currently unable to protect their work in
Federal court. It would establish a small claims board within the
Copyright Office to resolve infringement claims seeking $30,000 or less
in total damages, with claims officers appointed by the Librarian of
Congress.
The proceedings are designed to be less expensive and much easier to
navigate, even without an attorney, than Federal court. And they would
enable parties to represent themselves or to seek pro bono assistance
from law students.
The board would conduct its proceedings entirely by telephone and the
internet, and no one would need to travel to a hearing or a courthouse.
The bill caps damages at no more than $15,000 per work infringed, and
no more than $30,000 total. The board would work with the parties to
settle their claims.
Importantly, the proceedings would be voluntary. Plaintiffs can
decide whether this is the proper forum to file their claim, and
defendants may opt out of the process if they prefer to have their case
heard by a Federal judge.
{time} 1615
The sponsor of this legislation, the gentleman from New York (Mr.
Jeffries), has worked tirelessly to ensure that this legislation
includes revisions and suggestions from many Members and stakeholders.
The revisions include various heightened due process protections and
provisions intended to reduce potential abuse of the system, all of
which has made a good bill even better.
For far too long, it has been virtually impossible for small creators
to vindicate their right to a just measure of damages from infringers.
Today we have an opportunity to take an important step in helping
independent photographers, filmmakers, graphic designers, and other
creators to protect their work.
I would like to thank Mr. Jeffries and Ranking Member Collins for
their outstanding leadership on the CASE Act.
I would also like to thank the Copyright Office, which conducted an
exhaustive study on the issue and whose recommendations form the basis
for the bill.
In addition, I appreciate the support of colleagues on both sides of
the aisle, including the gentlewoman from California (Ms. Judy Chu),
who has introduced similar legislation in previous Congresses and who
has been tireless in her work to protect creators' rights.
Mr. Speaker, I am proud to be a cosponsor of this important
legislation, and I urge my colleagues to support the bill.
Mr. CLINE. Mr. Speaker, I yield myself the balance of my time to
close.
Mr. Speaker, I thank the gentleman again for his leadership on this
issue, and I thank the chairman for his remarks.
Again, this bill is a purely optional system and allows anyone who
doesn't wish to participate to opt out. The Copyright Office considered
this feature in its report back in 2013 and highlighted significant
shortcomings of an opt-in approach, including concerns that such a
system would fail to capture infringers who choose to ignore a claim of
infringement and/or fail to return an affirmative written response
regarding agreement to participate in the system, as is currently the
case.
The opt-out system provided in the CASE Act does not change the
voluntary nature of the small claims process it creates. In fact, it is
simple, and respondents would be made aware of their right to opt out
as well as the consequences of opting out and not opting out, which
would be prominently stated and explained in the notice they receive.
Again, Mr. Speaker, I would say that this is a bipartisan initiative.
I would just add several different Members on both sides participated.
I want to thank all of them for their hard work. I want to thank the
staff for their hard work, as well.
This will go a long way toward furthering the protection of creative
works as our Founders intended in the U.S. Constitution.
Mr. Speaker, I yield back the balance of my time.
Mr. JEFFRIES. Mr. Speaker, I yield myself the balance of my time to
close.
Mr. Speaker, the CASE Act is the product of more than 10 years of
careful study by this House and the United States Copyright Office.
As Chairman Nadler indicated, I want to thank the Copyright Office
for the work that they have done in laying the foundation for the CASE
Act.
Once again, I urge my colleagues to support this legislation so that
creators, authors, musicians, and users finally have a forum for small
copyright claims where they can meaningfully assert their rights and
defenses.
This bill has support through cosponsorship of more than 150 Members
of this House on both sides of the aisle, and I thank each and every
one of them.
The bill is endorsed by dozens of groups, including the American Bar
Association, AFL-CIO, the NAACP, the Copyright Alliance, the United
States Chamber of Commerce, the Association of American Publishers, the
Authors Guild, CreativeFuture, Nashville Songwriters, National Press
Photographers, the Recording Academy, the Latin American Recording
Academy, the Songwriters Guild of America, the Institute for
Intellectual Property and Social Justice, the Songwriters of North
America, as well as SAG-AFTRA, and many, many more. I would like to
thank all of them for their advocacy and for their effort.
Article I, Section 8, Clause 8 of the United States Constitution
gives Congress the power to create a robust intellectual property
system in order to, in the words of the Framers of the Constitution,
``promote the progress of science and useful arts.''
The Founders recognized that society would benefit if we incentivize
and protect creativity and innovation. In doing so, the creative
community will continue to share their creative brilliance with the
American people and the world and experience some benefit from the
fruits of their labor.
Times have changed since the provisions of Article I, Section 8,
Clause 8 were first written into the Constitution in 1787, but the
constitutional principle remains the same, and that is what the CASE
Act is all about.
I would like to thank the many cosponsors of this legislation,
including my good friend, Judiciary Committee Ranking Member Doug
Collins; the Judiciary Committee chair for his tremendous leadership,
Jerry Nadler; Courts, Intellectual Property, and the Internet
Subcommittee Chairman Hank Johnson; Courts, Intellectual Property, and
the Internet Subcommittee Ranking Member Martha Roby; Ted Lieu; Ben
Cline; Judy Chu; Brian Fitzpatrick; and many, many others.
On the Senate side, I am grateful for the leadership of Senators John
Kennedy, Dick Durbin, Thom Tillis, and Mazie Hirono, who are original
cosponsors of the Senate companion to this legislation, which is making
its way through that Chamber as well.
In the last Congress, we came together, Democrats and Republicans,
progressives and conservatives, the left and the right, to pass the
historic Music Modernization Act that was signed into law by President
Donald Trump, illustrating that we can come together. In this instance,
I am grateful that the same coalition has come back together in support
of the working-class and middle-class creative community.
Mr. Speaker, I urge all of my colleagues to support this bill, and I
yield back the balance of my time.
The SPEAKER pro tempore (Mr. Carson of Indiana). The question is on
the motion offered by the gentleman from New York (Mr. Jeffries) that
the House suspend the rules and pass the bill, H.R. 2426, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. AMASH. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this motion will be postponed.
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