[Federal Register Volume 69, Number 35 (Monday, February 23, 2004)]
[Proposed Rules]
[Pages 8120-8126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-3725]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 69, No. 35 / Monday, February 23, 2004 / 
Proposed Rules  

[[Page 8120]]



LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 205

[Docket No. RM 2004-2]


Legal Processes

AGENCY: Copyright Office, Library of Congress.

ACTION: Proposed rule.

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SUMMARY: The Copyright Office is proposing adoption of rules governing 
service of process on the Copyright Office, the Register of Copyrights 
or an employee of the Copyright Office acting in his or her official 
capacity and adoption of rules governing production of Office documents 
and testimony of Office employees in legal proceedings. These 
regulations will serve as a statement of Office policy and provide 
comprehensive guidelines for the Office and its employees, outside 
agencies, and other persons regarding the appropriate procedures in 
these areas.

DATES: Comments must be received no later than March 24, 2004.

ADDRESSES: An original and ten copies of any comment shall be sent to 
the Copyright Office. If comments are mailed, the address is: Copyright 
Office GC/I&R, PO Box 70400, Southwest Station, Washington, DC 20024-
0400. If comments are hand delivered by a private party, they must be 
addressed to: ``Office of the General Counsel, U.S. Copyright Office, 
James Madison Memorial Building, Room LM-401, 101 Independence Avenue, 
SE., Washington, DC 20559-6000'' and delivered to the Public 
Information Office of the Copyright Office, located in Room 401 of the 
James Madison Memorial Building of the Library of Congress, 101 
Independence Avenue, SE., Washington, DC between 8:30 a.m. and 5 p.m. 
If comments are hand delivered by a commercial, non-government courier 
or messenger, they must be delivered to: the Congressional Courier 
Acceptance Site, located at Second and D Streets, NE., between 8:30 
a.m. and 4 p.m., and addressed to ``Office of the General Counsel, U.S. 
Copyright Office, James Madison Memorial Building, Room LM-401, 101 
Independence Avenue, SE., Washington, DC 20559-6000.''

FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Assistant 
General Counsel or Robert Kasunic, Senior Attorney, Copyright GC/I&R, 
PO Box 70400, Southwest Station, Washington, DC 20024-0400. Telephone 
(202) 707-8380. Telefax: (202) 707-8366.

SUPPLEMENTARY INFORMATION: The Copyright Office is proposing revision 
of part 205 of subchapter A of Chapter II, 37 CFR. Generally, part 205 
establishes rules governing service of complaints, summonses, subpoenas 
and other legal process on the Copyright Office and its employees in 
their official capacities. Under the proposed revision, subpart A sets 
forth the definitions for the part, the addresses for legal service, 
and waiver of the rules. Subpart B establishes the requirements for 
service of legal process on an employee of the Copyright Office 
concerning information acquired in the course of performing official 
duties or because of the employee's official relationship with the 
Office and clarifies the requirements for service on the Register of 
Copyrights pursuant to section 17 U.S.C. 411(a). Subpart C prescribes 
policies and procedures of the Copyright Office governing testimony by 
an Office employee in his or her official capacity and the production 
of Office documents pursuant to a demand, request, subpoena, or order 
for use in legal proceedings in which the Office is not a party.

Background

1. Service of Process

    Since its inception, the Copyright Office has operated without any 
published rules or regulations governing service of process.\1\ Unlike 
many government agencies, the Copyright Office is not charged with 
enforcing the provisions of the statute that it administers. Under both 
the Copyright Act of 1909 and the Copyright Act of 1976, the rights 
bestowed by copyright protection are primarily enforced privately by 
copyright owners. The Copyright Office is an office of public record 
which, through the registration process, enables copyright owners both 
to make a record of their works and to facilitate protection of those 
works. The Office has, in the past, referred to the applicable law 
governing service of complaints and summonses on the United States and 
has handled service of subpoenas and other process on a case-by-case 
basis. See Fed. R. Civ. p. 4(i). The proposed rules ensure that service 
intended for the Office and its employees will be properly handled. 
These rules also ensure centralized procedures that are necessary for 
the Office's timely response to service of legal process.
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    \1\ In 1994, the Office published a policy statement containing 
an address where litigation material should be directed. In 2001, it 
published in regulatory text the address where the Register should 
be served when copyright registration is refused and the applicant 
wants to bring a copyright infringement suit. 66 FR 19094 (April 13, 
2001).
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2. Production of Documents and Testimony by Employees in Legal 
Proceedings in Which the Office Is Not a Party

    The Copyright Office occasionally receives subpoenas and other 
informal requests for documents and testimony in cases in which the 
Office is not a party. Although the Office has rules governing requests 
for information from the general public and charges fees for providing 
such information, the Office currently has no regulations governing 
subpoenas requesting document production and testimony of Office 
employees in legal proceedings. An increase in such requests in recent 
years warrants adoption of regulations governing their submission, 
evaluation, and processing. Proper handling of subpoenas for documents 
and testimony requires uniform rules and centralized procedures. In 
some situations, litigants have served subpoenas directly on Office 
employees, while others have mailed copies of subpoenas to the 
Copyright Office. In some cases, the responsible officials within the 
Office have not become aware of the existence of subpoenas for days or 
even weeks. Such delays cause the Office to lose valuable time 
assessing and responding to subpoenas for testimony and documents. 
Establishing uniform procedures for legal processes will ensure timely 
notice and promote centralized decision-making.
    As a general rule, all documents and material submitted to the 
Copyright

[[Page 8121]]

Office as part of a completed registration of a claim to copyright are 
available for public inspection and copying. 37 CFR 201.2(b)(1). Anyone 
seeking such documents, including documents to be used in litigation, 
must contact the Certifications and Documents Section of the Office. 
Id. Correspondence between a copyright claimant or his or her agent and 
the Copyright Office regarding matters such as recordation, 
registration, or refusal to register is also available for public 
inspection. The Certifications and Documents Section certifies the 
authenticity of copies of Office documents and records which expedites 
legal proceedings since such certified copies of public documents and 
public records are self-authenticating. Fed. R. Evid. 902, 1005. See 
also, Fed. R. Civ. p. 44(a)(1). Office policy denies direct public 
access to in-process files and to work areas where they are handled. 37 
CFR 201.2(b)(2). Information contained in the in-process files may, 
under certain circumstances, be obtained by complying with the 
procedures of 37 CFR 201.2(b)(3). Records that are not open to the 
public include correspondence, memoranda, reports, opinions, and 
similar material relating to internal matters of personnel and 
procedures, Office administration, security matters, and internal 
consideration of policy and decisional matters, including the work 
product of an attorney. 37 CFR 201.2(c).
    Section 201.2(d) of 37 CFR prescribes the method for requesting 
copies of copyright registration records. Copying of the deposit copies 
of works submitted for registration is limited to circumstances where 
there is written permission from the copyright holder(s), a court 
order, or a written request submitted via a Litigation Statement from 
an attorney engaged in either actual or prospective litigation 
involving the requested work.
    Copyright Office regulations also specify how documents, other than 
registration material, that are available to the public may be 
obtained. For example, administrative staff manuals may be obtained in 
accordance with 37 CFR 201.2(b)(7).
    Given the existing regulations and the availability of most Office 
documents and records, further regulations for production of documents 
in legal proceedings may seem unnecessary. When the Office has received 
production requests in the past, it has attempted to apply current 
regulations to respond to the request. Attorneys familiar with Office 
practices generally forego seeking document production via request or 
subpoena and simply follow the established procedures. When attorneys 
do not follow established procedures for obtaining information, it is 
usually because they are unfamiliar with Office practices or 
established procedures. Typically, such demands take the form of a 
subpoena on an Office employee directing him or her to appear at a 
certain time and place and to produce certain documents. In addition, 
subpoenas are sometimes served on an Office employee who is not 
responsible for the requested documents. Responding to these requests 
and subpoenas is not only burdensome for the Office, but is less 
efficient for the requestor who could obtain the requested documents 
more expeditiously by other means. There is, therefore, a need to 
regulate requests by centralizing their receipt and thereby allowing 
the Office to assess the request in an efficient manner. The proposed 
rules will also assist those seeking documents or testimony from the 
Office, by clarifying the alternative procedures available to obtain 
the information sought.
    The rules governing testimony of Office employees in legal 
proceedings will also centralize the service of deposition subpoenas. 
Subpoenas for depositions are typically directed to copyright examiners 
and supervisors, but the Office has received deposition notices for 
other employees. Generally, the information sought by deposition is 
available through alternative written resources published or available 
for public inspection by the Office. As a consequence, it is important 
for the Copyright Office General Counsel to determine whether Office 
involvement in private litigation would unduly burden Office resources. 
This determination requires obtaining information on the precise nature 
of the testimony sought and whether alternative sources of the 
requested information are available. A single procedure directing all 
requests for testimony to an authorized official for review and 
evaluation will expedite and centralize the decision-making process. 
The Copyright Office is, therefore, proposing the following 
regulations.

Proposed Regulations

    The Copyright Office is proposing revision of part 205 of 
subchapter A of chapter II of 37 CFR as adopted on April 13, 2001, 37 
CFR 205.1. Generally, part 205 would set forth the Office rules on 
legal processes. Subpart A contains the general provisions governing 
legal process on the Office. Subpart B sets forth the requirements for 
service of process on the Office or its employees in their official 
capacities. Subpart C prescribes the requirements for requests and 
subpoenas to produce Office documents or the testimony of Office 
employees in legal proceedings in which the Office is not a party to 
the action.
1. General Provisions
    The general provisions supply definitions and Office addresses. 
There is also a provision that permits waiver of the rule by the 
General Counsel. Only the General Counsel of the Copyright Office or 
his or her designee is authorized to receive service of process for the 
Office or an employee of the Office acting in his or her official 
capacity. The requirements prescribed by part 205 are in addition to 
any requirements prescribed by law or statute; and parties must, of 
course, comply with the service requirements of the Federal Rules of 
Civil or Criminal Procedure and any other applicable statute or court 
rule.
2. Service of Process
    The purpose of subpart B is to identify the proper parties within 
the Copyright Office upon whom process must be served, and to describe 
the conditions and requirements of such service.
    Section 205.11 provides the scope and purpose of subpart B.
    Section 205.12 clarifies that the subpart applies only to process 
served on the Copyright Office and its employees in their official 
capacities. Subpart B does not apply to any Office employee who is 
served with process in his or her individual capacity for matters 
related solely to his or her personal dealings.
    Section 205.13 clarifies the procedures for complaints served on 
the Register of Copyrights pursuant to 17 U.S.C. 411(a).
3. Testimony by Employees and/or the Production of Documents in Legal 
Proceedings in which the Office is not a Party
    Subpart C governs the terms and procedures for demands for Office 
documents or the testimony of a Copyright Office employee in his or her 
official capacity in legal proceedings. The requirements of subpart C 
are modeled on those imposed by other federal agencies following United 
States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    The Supreme Court's decision in United States ex rel. Touhy v. 
Ragen, 340 U.S. 462 (1951) affirmed the reversal of a contempt charge 
against an FBI agent who, pursuant to a Department of Justice (``DOJ'') 
regulation, refused to produce certain

[[Page 8122]]

documents subpoenaed by a state prisoner in a federal habeas corpus 
proceeding. The DOJ regulation forbade employees from disclosing 
Department documents, except as authorized by the Attorney General or 
his assistant. The Court held that the FBI agent's refusal to produce 
documents was lawful given the DOJ regulation. The Court stated that 
``[w]hen one considers the variety of information contained in the 
files of any government department and the possibilities of harm from 
unrestricted disclosure in court, the usefulness, indeed necessity, of 
centralizing determination as to whether subpoenas duces tecum will be 
willingly obeyed or challenged is obvious.'' Touhy at 468. Thus, under 
Touhy, government entities may centralize, by regulation, 
determinations concerning subpoena responses and forbid the 
unauthorized response by employees. Further, government employees 
cannot be held in contempt of court for complying with such 
regulations.
    Touhy regulations typically provide internal guidance and direction 
to agency employees, as well as establish procedures that must be 
followed by those external to an agency who are seeking information 
from the agency or its employees. Touhy regulations usually contain 
provisions concerning matters such as who an agency employee should 
contact for direction when he or she receives a subpoena or demand; the 
agency's office or official that a party or attorney seeking testimony 
or documents should contact; and who at the agency may authorize the 
production of testimony or documents by agency employees. Almost 
universal are provisions prohibiting an employee's disclosure of 
documents or giving of testimony without authorization of an 
appropriate agency official. Additionally, some regulations set out 
factors that the agency decision-maker should consider in deciding 
whether to authorize the giving of testimony or the release of 
documents. Touhy regulations, thus, serve the purpose of centralizing 
determinations within an agency concerning whether and to what extent 
demands for testimony and documents will be honored.
    Section 205.21 outlines the scope of subpart C and notes that it 
applies to testimony and production of documents in legal proceedings 
pursuant to a demand, subpoena or order. Section 205.21 makes it clear 
that an employee acting in his or her official capacity may not appear 
voluntarily as a witness or provide voluntary testimony in a legal 
proceeding without authorization by the General Counsel of the 
Copyright Office. The section explains the reasons for this policy, 
including conservation of Office resources and the centralization of 
the administrative process.
    Sections 205.22 and 205.23 state under what conditions the Office 
will authorize the production of documents and testimony in a legal 
proceeding in which the Office is not a party. Section 205.22 provides 
the required procedure for demands for documents or testimony in legal 
proceedings. In most cases, testimony of an Office employee must be 
sought through either a subpoena or a court order, both of which 
require proper service on the Copyright Office. The service 
requirements of Rule 45 of the Federal Rules of Civil Procedure must be 
complied with. However, there are occasions when one or more parties to 
a proceeding contact the Office and request a deposition of an Office 
employee or seek testimony at trial. The proposed rule clarifies that 
any such demand, request or subpoena for testimony must be in writing, 
must be accompanied by an affidavit or declaration under penalty of 
perjury pursuant to 28 U.S.C. 1746, and must be delivered to the 
General Counsel of the Copyright Office.
    Likewise, all demands, requests, subpoenas or orders for production 
of documents must be directed to the General Counsel of the Copyright 
Office. As discussed above, under current Copyright Office regulations, 
most documents in the possession of the Office are available to the 
general public, and the Office encourages litigants to avail themselves 
of these records by following existing agency practices. When the 
Office has in the past received a subpoena or order for production of 
documents, it has generally responded to the demand through use of 
current procedures. However, because a court may require an official of 
the Office to appear in person to produce the requested records, it is 
necessary to adopt procedures governing these types of demands.
    In addition to requiring that all demands, requests or subpoenas 
for testimony and production of documents in legal proceedings in which 
the Office is not a party be in written form, Sec.  205.22(a)(3) 
requires that all demands, requests and subpoenas be accompanied by an 
affidavit or declaration under penalty of perjury pursuant to 28 U.S.C. 
1746 that identifies the title of the legal proceeding, the forum, the 
requesting party's interest in the legal proceeding, the reasons for 
the demand, request or subpoena, a showing that the desired testimony 
or document is not reasonably available from any other source, and, if 
testimony is requested, the intended use of the testimony, a detailed 
summary of the testimony desired, and a showing that no document could 
be provided and used in lieu of the requested testimony. The purpose of 
this requirement is to permit the Office to evaluate whether the 
information sought in the demand is available through other less 
burdensome means before deciding whether the testimony or production 
should be authorized.
    Subsections (b) through (f) of Sec.  205.22 propose several Office 
practices governing testimony by employees and production of documents 
in legal proceedings. Subsection (b) makes it clear that no Office 
employee may provide testimony or produce a document in a legal 
proceeding concerning Office business without the authorization of the 
General Counsel of the Copyright Office. In addition, no Office 
employee shall answer inquiries from members of the public regarding 
testimony or documents subject to a demand, subpoena or order. All 
requests for such testimony must be directed to the General Counsel of 
the Copyright Office. There are two exceptions to this rule: there is 
no limitation on testimony of facts or events that are unrelated to 
official business and there is no limitation on a former employee's 
testimony as an expert in connection with a particular matter in which 
the former employee did not participate personally while at the Office.
    As discussed above, most documents in the possession of the Office 
are public records and can be obtained by the public under current 
regulations. In general, the Office will continue to direct the public 
to seek documents through its Certification and Documents Section. 
Parties seeking documents, including certified documents to be used in 
litigation, must contact the Certification and Documents Section of the 
Office.
    Section 205.23 governs the scope of permissible testimony. When the 
testimony of an employee is authorized by the General Counsel, an 
employee may testify as to relevant matters of fact within his or her 
knowledge so long as the factual matters do not probe into the mental 
processes employed in formulating a decision of the Office. United 
States v. Morgan, 298 U.S. 468 (1941); Western Electric Co., Inc. v. 
Piezo Technology, Inc., 860 F.2d 428 (Fed. Cir. 1988). In addition, an 
employee would be prohibited from giving expert or conjectural 
testimony.

[[Page 8123]]

List of Subjects in 37 CFR Part 205

    Copyright, Service of process, Testimony by employees and 
production of documents in legal proceedings.

Proposed Regulations

    In consideration of the foregoing, the Copyright Office proposes to 
revise 37 CFR part 205 as follows:
    1. Part 205 is revised to read as follows:

PART 205--LEGAL PROCESSES

Subpart A--General Provisions

Sec.
205.1 Definitions.
205.2 Address for mail and service; telephone number.
205.3 Waiver of rules.
205.4 Relationship of this part to the Federal Rules of Civil and 
Criminal Procedure.
205.5 Scope of this part related to Copyright Office duties under 
title 17 of the U.S. Code.
Subpart B--Service of Process
205.11 Scope and purpose.
205.12 Process served on the Register of the Copyright Office and an 
employee in his or her official capacity.
205.13 Complaints served on the Register of Copyrights pursuant to 
17 U.S.C. 411.
Subpart C--Testimony by Employees and Production of Documents in Legal 
Proceedings in Which the Office Is Not a Party
205.21 Scope and purpose.
205.22 Production of documents and testimony.
205.23 Scope of testimony.

    Authority: 17 U.S.C. 702.

Subpart A--General Provisions


Sec.  205.1  Definitions.

    For the purpose of this part:
    Demand means an order, subpoena or any other request for documents 
or testimony for use in a legal proceeding.
    Document means any record or paper held by the Copyright Office, 
including, without limitation, official letters, deposits, 
recordations, registrations, publications, or other material submitted 
in connection with a claim to register a copyright.
    Employee means any current or former officer or employee of the 
Copyright Office, as well as any individual subject to the 
jurisdiction, supervision, or control of the Copyright Office.
    General Counsel, unless otherwise specified, means the General 
Counsel of the United States Copyright Office or his or her designee.
    Legal proceeding means any pretrial, trial, and post trial stages 
of existing or reasonably anticipated judicial or administrative 
actions, hearings, investigations, or similar proceedings before 
courts, commissions, boards or other tribunals, foreign or domestic. 
This phrase includes all phases of discovery as well as responses to 
formal or informal requests by attorneys or others involved in legal 
proceedings. This phrase also includes state court proceedings 
(including grand jury proceedings) and any other state or local 
legislative and administrative proceedings.
    Office means the United States Copyright Office, including any 
section, division or operating unit within the United States Copyright 
Office.
    Official business means the authorized business of the United 
States Copyright Office.
    Testimony means a statement in any form, including a personal 
appearance before a court or other legal tribunal, an interview, a 
deposition, an affidavit or declaration under penalty of perjury 
pursuant to 28 U.S.C. 1746, a telephonic, televised, or videotaped 
statement or any response given during discovery or similar proceeding, 
which response would involve more than the production of documents, 
including a declaration under 35 U.S.C. 25 or a declaration under 
penalty of perjury pursuant to 28 U.S.C. 1746.
    United States means the Federal Government, its departments and 
agencies, individuals acting on behalf of the Federal Government, and 
parties to the extent they are represented by the United States.


Sec.  205.2  Address for mail and service; telephone number.

    (a) Mail under this part should be addressed to the General 
Counsel, Copyright GC/I&R, PO Box 70400, Southwest Station, Washington, 
DC 20024-0400.
    (b) Service by hand shall be made upon an authorized person from 
8:30 a.m. to 5 p.m. E.S.T., Monday through Friday in the Public 
Information Office, U.S. Copyright Office, Library of Congress, James 
Madison Memorial Building, Room LM-401, 101 Independence Avenue, SE., 
Washington, DC. Persons authorized to accept service of process are the 
General Counsel of the Copyright Office and his or her designees.
    (c) The Office of the General Counsel may be reached by telephone 
during normal business hours specified in paragraph (b) of this section 
at 202-707-8380.


Sec.  205.3  Waiver of rules.

    In extraordinary situations, when the interest of justice requires, 
the General Counsel may waive or suspend the rules of this part, sua 
sponte or on petition of an interested party, subject to such 
requirements as the General Counsel may impose on the parties. However, 
the inclusion of certain legal process within the scope of these rules, 
e.g., state legal proceedings, does not represent a waiver of any claim 
of immunity, privilege, or other defense by the Office in a legal 
proceeding, including but not limited to, sovereign immunity, 
preemption, or lack of relevance. This rule does not create any right 
or benefit, substantive or procedural, enforceable at law by a party 
against the Copyright Office or the United States.


Sec.  205.4  Relationship of this part to the Federal Rules of Civil 
and Criminal Procedure.

    Nothing in this part waives any requirement under the Federal Rules 
of Civil or Criminal Procedure.


Sec.  205.5  Scope of this part related to Copyright Office duties 
under title 17 of the U.S. Code.

    This part relates only to legal proceedings, process, requests and 
demands relating to the Copyright Office's performance of its duties 
pursuant to title 17 of the United States Code. Legal proceedings, 
process, requests and demands relating to other matters (e.g., personal 
injuries, employment matters, etc.) are the responsibility of the 
General Counsel of the Library of Congress and are governed by 36 CFR 
part 703.

Subpart B--Service of Process


Sec.  205.11  Scope and purpose.

    (a) This subpart provides the procedures governing service of 
process on the Copyright Office and its employees in their official 
capacity. These regulations provide the identity of Copyright Office 
officials who are authorized to accept service of process. The purpose 
of this subpart is to provide a centralized location for receipt of 
service of process to the Office. Such centralization will provide 
timely notification of legal process and expedite Office response. 
Litigants also must comply with all requirements pertaining to service 
of process that are established by statute, court rule and rule of 
procedure including the applicable provisions of the Federal Rules of 
Civil Procedure governing service upon the United States.
    (b) This subpart does not apply to service of process made on an 
employee

[[Page 8124]]

personally for matters not related to official business of the Office. 
Process served upon a Copyright Office employee in his or her 
individual capacity must be served in compliance with the applicable 
requirements for service of process established by statute, court rule, 
or rule of procedure.


Sec.  205.12  Process served on the Copyright Office and its employees 
in their official capacities.

    (a) Summonses, complaints and all other process directed to the 
Copyright Office, the Register of Copyrights or any other Copyright 
Office employee in his or her official capacity should be served on the 
General Counsel of the Copyright Office or his designee as indicated in 
Sec.  205.2. To effect proper service, the requirements of Rule 4(i) of 
the Federal Rules of Civil Procedure must also be satisfied by 
effecting service on both the United States attorney for the district 
in which the action is brought and the Attorney General, Attn: Director 
of Intellectual Property Staff, Commercial Litigation Branch, Civil 
Division, Department of Justice, Washington, DC 20530.
    (b) Any employee of the Office served with a summons or complaint 
in connection with the conduct of official business shall immediately 
notify and shall deliver the summons or complaint to the Office of the 
General Counsel of the Copyright Office.
    (c) Any employee receiving a summons or complaint shall note on the 
summons or complaint the date, hour, and place of service and mode of 
service.
    (d) The Office will accept service of process for an employee only 
when the legal proceeding is brought in connection with the conduct of 
official business carried out in the employee's official capacity.
    (e) When a legal proceeding is brought to hold an employee 
personally liable in connection with an action taken in the conduct of 
official business, rather than liable in an official capacity, the 
employee is to be served in accordance with any applicable statute, 
court rule, or rule of procedure. Service of process in this case is 
inadequate when made only on the General Counsel. An employee sued 
personally for an action taken in the conduct of official business 
shall immediately notify and deliver a copy of the summons or complaint 
to the General Counsel of the Copyright Office.


Sec.  205.13  Complaints served on the Register of Copyrights pursuant 
to 17 U.S.C. 411(a).

    When an action has been instituted pursuant to 17 U.S.C. 411(a) for 
infringement of the copyright of a work for which registration has been 
refused, notice of the institution of the action and a copy of the 
complaint must be served on the Register of Copyrights by sending such 
documents by registered or certified mail to the General Counsel of the 
Copyright Office, GC/I&R, PO Box 70400, Southwest Station, Washington, 
DC 20024-0400, or delivery by hand addressed to the General Counsel of 
the Copyright Office and delivered to the Public Information Office, 
U.S. Copyright Office, Library of Congress, James Madison Memorial 
Building, Room LM-401, 101 Independence Avenue, SE., Washington, DC. 
The notice must be in the form of a letter that is clearly identified 
as a 411(a) notice. Both the letter and the envelope should state: 
``Section 411(a) Notice to the Register of Copyrights.'' In compliance 
with FED. R. CIV. P. Sec. 4(i), a notice of the institution of the 
action and a copy of the complaint must also be served on both the 
United States attorney for the district in which the action is brought 
and the United States Department of Justice, directed to the Attorney 
General, Attn: Director of Intellectual Property Staff, Civil Division, 
Department of Justice, Washington, DC 20530.

Subpart C--Testimony by Employees and Production of Documents in 
Legal Proceedings in Which the Office Is Not a Party


Sec.  205.21  Scope and purpose.

    (a) This subpart prescribes policies and procedures of the 
Copyright Office governing testimony, in legal proceedings in which the 
Office is not a party, by Office employees in their official capacities 
and the production of Office documents for use in legal proceedings 
pursuant to a demand, request, subpoena or order.
    (b) The purpose of this subpart is:
    (1) To conserve the time of Office employees for conducting 
official business;
    (2) To minimize the possibility of involving the Office in the 
matters of private parties or other issues which are not related to the 
mission of the Office;
    (3) To prevent the public from confusing personal opinions of 
Office employees with Office policy;
    (4) To avoid spending the time and money of the United States for 
private purposes;
    (5) To preserve the integrity of the administrative process, 
minimize disruption of the decisionmaking process, and prevent 
interference with the Office's administrative functions.
    (c) An employee of the Office may not voluntarily appear as a 
witness or voluntarily testify in a legal proceeding relating to his or 
her official capacity without proper authorization under this subpart.
    (d) This subpart does not apply to any legal proceeding in which:
    (1) An employee is to testify regarding facts or events that are 
unrelated to official business; or
    (2) A former employee is asked to testify as an expert on a matter 
in which that employee did not personally participate while at the 
Office so long as the former employee testifies concerning his or her 
personal opinion and does not purport to speak for or on behalf of the 
Copyright Office.


Sec.  205.22  Production of documents and testimony.

    (a) Generally, all documents and material submitted to the 
Copyright Office as part of a completed application to register a claim 
to copyright are available for public inspection and copying. Most 
documents are therefore available through Office services that do not 
require the utilization of litigation processes. Anyone seeking such 
documents must contact the Certifications and Documents Section of the 
Office. 37 CFR 201.2(b)(1). Certified copies of public documents and 
public records are self-authenticating. FED R. EVID. 902 and 1005; see 
also, FED. R. CIV. P. 44(a)(1). In certain specified circumstances, 
information contained in the in-process files may be obtained by 
complying with the procedures of 37 CFR 201.2(b)(3). Correspondence 
between a copyright claimant or his or her agent and the Copyright 
Office in a completed registration, recordation, or refusal to register 
is also available for public inspection. Section 201.2(d) of this 
chapter prescribes the method for requesting copies of copyright 
registration records. Reproduction of deposit copies of works submitted 
for registration are, upon approval of the General Counsel, available 
to an attorney engaged in actual or prospective litigation involving 
the requested work upon written request and a completed Litigation 
Statement or a court order. The fees associated with various document 
requests, searches, copies, and expedited handling are listed in 37 CFR 
201.3. Other publications containing Copyright Office procedures and 
practices are available to the public without charge from the Copyright 
Office or its Web site: http://www.loc.gov/copyright. The Office Web 
site also allows online searching of copyright registration information 
and information pertaining

[[Page 8125]]

to documents recorded with the Copyright Office beginning January 1, 
1978. Pre-1978 copyright registration information and document 
recordation information is available to the public in the Copyright 
Office during regular business hours. If the information sought to be 
obtained from the Office is not available through these Office 
services, demands and subpoenas for testimony or documents may be 
served as follows:
    (1) Demands for testimony or documents. All demands, requests, 
subpoenas or orders for production of documents or testimony in a legal 
proceeding directed to the Copyright Office, the Register of Copyrights 
or any other Copyright Office employee in his or her official capacity 
must be in writing and should be served on the General Counsel of the 
Copyright Office as indicated in Sec.  205.2 of this part and in 
accordance with the Federal Rules of Civil or Criminal Procedure.
    (2) Affidavits. Except when the Copyright Office is a party to the 
legal proceeding, every demand, request or subpoena shall be 
accompanied by an affidavit or declaration under penalty of perjury 
pursuant to 28 U.S.C. 1746. Such affidavit or declaration shall contain 
a written statement setting forth the title of the legal proceeding; 
the forum; the requesting party's interest in the legal proceeding; the 
reasons for the demand, request, or subpoena; a showing that the 
desired testimony or document is not reasonably available from any 
published or other written source, (e.g. Federal Register, Compendium 
II: Compendium of Copyright Office Practices, other written practices 
of the Office, circulars, the Copyright Office Web site) and is not 
available by other established procedure, e.g. 37 CFR 201.2, 201.3. If 
testimony is requested in the affidavit or declaration, it shall 
include the intended use of the testimony, a detailed summary of the 
testimony desired, and a showing that no document could be provided and 
used in lieu of the requested testimony. The purpose of these 
requirements is to permit the General Counsel of the Copyright Office 
to make an informed decision as to whether testimony or production of a 
document should be authorized. The decision by the General Counsel will 
be based on consideration of the purposes set forth in Sec.  205.21(b), 
on the evaluation of the requesting party's need for the testimony and 
any other factor warranted by the circumstances. Typically, when the 
information requested is available through other existing Office 
procedures or materials, the General Counsel will not authorize 
production of documents or testimony.
    (b) No Copyright Office employee shall give testimony concerning 
the official business of the Office or produce any document in a legal 
proceeding other than those made available by the Certifications and 
Documents Section under existing regulations without the prior 
authorization of the General Counsel. Without prior approval from the 
General Counsel, no Office employee shall answer inquiries from a 
person not employed by the Library of Congress or the Justice 
Department regarding testimony or documents in connection with a 
demand, subpoena or order. All inquiries involving demands, subpoenas, 
or orders shall be directed to the General Counsel of the Copyright 
Office.
    (c) Any Office employee who receives a demand, request, subpoena or 
order for testimony or the production of documents in a legal 
proceeding shall immediately notify the Copyright Office General 
Counsel at the phone number indicated in Sec.  205.2 and shall 
immediately forward the demand to the Copyright Office General Counsel.
    (d) The General Counsel may consult or negotiate with an attorney 
for a party or the party, if not represented by an attorney, to refine 
or limit a demand, request or subpoena to address interests or concerns 
of the Office. Failure of the attorney or party to cooperate in good 
faith under this part may serve as the basis for the General Counsel to 
deny authorization for the testimony or production of documents sought 
in the demand.
    (e) A determination under this part regarding authorization to 
respond to a demand is not an assertion or waiver of privilege, lack of 
relevance, technical deficiency or any other ground for noncompliance. 
The Copyright Office reserves the right to oppose any demand on any 
appropriate legal ground independent of any determination under this 
part, including but not limited to, sovereign immunity, preemption, 
privilege, lack of relevance, or technical deficiency.
    (f) Office procedures when an employee receives a demand or 
subpoena:
    (1) If the General Counsel has not acted by the return date, the 
employee must appear at the time and place set forth in the subpoena 
(unless otherwise advised by the General Counsel) and inform the court 
(or other legal authority) that the demand has been referred for the 
prompt consideration of the General Counsel and shall request the court 
(or other legal authority) to stay the demand pending receipt of the 
requested instructions.
    (2) If the General Counsel makes a determination not to authorize 
testimony or the production of documents, but the subpoena is not 
withdrawn or modified and Department of Justice representation cannot 
be arranged, the employee should appear at the time and place set forth 
in the subpoena unless advised otherwise by the General Counsel. If 
legal counsel cannot appear on behalf of the employee, the employee 
should produce a copy of these rules and state that the General Counsel 
has advised the employee not to provide the requested testimony or to 
produce the requested document. If a court (or other legal authority) 
rules that the demand in the subpoena must be complied with, the 
employee shall respectfully decline to comply with the demand, citing 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).


Sec.  205.23  Scope of testimony.

    (a)(1) If a Copyright Office employee is authorized to give 
testimony in a legal proceeding, the testimony, if otherwise proper, 
shall be limited to facts within the personal knowledge of the Office 
employee. An Office employee is prohibited from giving expert 
testimony, or opinion, answering hypothetical or speculative questions, 
or giving testimony with respect to subject matter which is privileged. 
If an Office employee is authorized to testify in connection with his 
or her involvement or assistance in a proceeding or matter before the 
Office, that employee is further prohibited from giving testimony in 
response to an inquiry about the bases, reasons, mental processes, 
analyses, or conclusions of that employee in the performance of his or 
her official functions.
    (2) The General Counsel may authorize an employee to appear and 
give expert testimony or opinion testimony upon the showing, pursuant 
to Sec.  205.3 of this part, that exceptional circumstances warrant 
such testimony and that the anticipated testimony will not be adverse 
to the interest of the Copyright Office or the United States.
    (b) If an Office employee is authorized to testify, the employee 
will generally be prohibited from providing testimony in response to 
questions which seek, for example:
    (1) To elicit information about the employee's:
    (i) Qualifications to examine or otherwise consider a particular 
copyright application.
    (ii) Usual practice or whether the employee followed a procedure 
set out

[[Page 8126]]

in any Office manual of practice in a particular case.
    (iii) Consultation with another Office employee.
    (iv) Familiarity with:
    (A) Preexisting works that are similar.
    (B) Registered works, works sought to be registered, a copyright 
application, registration, denial of registration, or request for 
reconsideration.
    (C) Copyright law or other law.
    (D) The actions of another Office employee.
    (v) Reliance on particular facts or arguments.
    (2) To inquire into the manner in and extent to which the employee 
considered or studied material in performing the function.
    (3) To inquire into the bases, reasons, mental processes, analyses, 
or conclusions of that Office employee in performing the function.
    (4) In exceptional circumstances, the General Counsel may waive 
these limitations pursuant to Sec.  205.3 of this part.

    Dated: February 17, 2004.
David O. Carson,
General Counsel.
[FR Doc. 04-3725 Filed 2-20-04; 8:45 am]
BILLING CODE 1410-30-P