[Federal Register Volume 90, Number 45 (Monday, March 10, 2025)]
[Notices]
[Pages 11625-11628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-03795]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
[Docket No. 2025-2]
CASE Act Study
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of inquiry and request for comments.
-----------------------------------------------------------------------
SUMMARY: As required by the Copyright Alternative in Small-Claims
Enforcement Act of 2020, the U.S. Copyright Office is initiating a
study of the Copyright Claims Board. To inform the Office's study, the
Office seeks comments on issues pertaining to the Copyright Claims
Board, including its use and efficacy.
DATES: Written comments are due no later than 11:59 p.m. Eastern Time
on May 9, 2025. Written reply comments are due no later than 11:59 p.m.
Eastern Time on June 23, 2025.
ADDRESSES: The Copyright Office is using the regulations.gov system for
the submission and posting of public comments in this proceeding. All
comments are to be submitted electronically through regulations.gov.
Specific instructions for submitting comments are available on the
Copyright Office's website at http://copyright.gov/policy/CASE-study.
If electronic comment submission is not feasible due to lack of access
to a computer or the internet, please contact the Office using the
contact information below for special instructions.
FOR FURTHER INFORMATION CONTACT: Rhea Efthimiadis, Assistant to the
General Counsel, by email at [email protected], or by telephone at
202-707-8350.
SUPPLEMENTARY INFORMATION:
I. Introduction
The Copyright Alternative in Small-Claims Enforcement Act of 2020
(the ``CASE Act'') directed the Copyright Office to establish the
Copyright Claims Board (the ``CCB''),\1\ a voluntary forum for parties
seeking resolution of certain copyright disputes that have a total
monetary value of $30,000 or less. The CCB ``is intended to be
accessible especially for pro se [i.e., self-represented] parties and
those with little prior formal exposure to copyright laws who cannot
otherwise afford to have their claims and defenses heard in federal
court,'' \2\ an issue analyzed in depth in the Office's 2013 policy
report, Copyright Small Claims.\3\ Since the CCB launched operations in
June 2022, claimants \4\ have filed over 1,000 claims.\5\ The CCB has
managed hundreds of proceedings and issued over 30 final
determinations, the first of which was published on February 15,
2023.\6\
---------------------------------------------------------------------------
\1\ Public Law 116-260, sec. 212, 134 Stat. 1182, 2176 (2020).
\2\ H.R. Rep. No. 116-252, at 17 (2019).
\3\ U.S. Copyright Office, Copyright Small Claims (2013)
(``Copyright Small Claims''), https://www.copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf.
\4\ Throughout this Notice, references to ``claimant'' may also
include ``counterclaimants,'' as appropriate.
\5\ See Oversight Hearing Before the Subcomm. on Intellectual
Prop. Comm. on the S. Comm. on the Judiciary, 119th Cong. 2 (2024),
https://www.copyright.gov/laws/hearings/Testimony-Register-Shira-Perlmutter-Nov-13-Hearing-Senate-IP-Subcommittee-of-US-Copyright-Office.pdf (statement of Shira Perlmutter, Register of Copyrights
and Director, U.S. Copyright Office); CCB, Key Statistics (Oct.
2024), https://ccb.gov/CCB-Statistics-and-FAQs-Oct-2024.pdf (setting
forth CCB statistics for period from June 2022 to September 2024).
\6\ Final Determination, Flores v. Mitrakos, No. 22-CCB-0035
(Feb. 15, 2023), https://dockets.ccb.gov/document/download/2124
(reflecting final determination where the CCB adopted the parties'
settlement terms); Final Determination, Oppenheimer v. Prutton, No.
22-CCB-0045 (Feb. 28, 2023), https://dockets.ccb.gov/document/download/2220 (reflecting first final determination not involving a
settlement).
---------------------------------------------------------------------------
The CASE Act directs the Register of Copyrights to complete a study
within three years of the CCB's first final determination, addressing
five specific topics, as well as any other topics related to the CCB
that the Register believes to be pertinent.\7\ This Notice initiates
that study.
---------------------------------------------------------------------------
\7\ Public Law 116-260, sec. 212(d), 134 Stat. at 2199-2200.
---------------------------------------------------------------------------
II. The Office's Establishment of the CCB
The CASE Act provided that the CCB would be housed within the
Copyright Office and granted the Office general authority to implement
the statute's provisions through its rulemaking power.\8\ While the
CASE Act detailed many of the components and procedures of the CCB,
Congress delegated to the Office the specific authority to promulgate
certain regulations necessary for the CCB's
[[Page 11626]]
operations.\9\ These regulations address many aspects of the CCB's
proceedings, including how parties should present their positions and
how the CCB will operate.\10\
---------------------------------------------------------------------------
\8\ 17 U.S.C. 1510(a).
\9\ See, e.g., id. at 1504(g) (``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.''); id. at 1505(d) (``[T]he 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.'').
\10\ See 87 FR 16989 (Mar. 25, 2022); 87 FR 30060 (May 17,
2022); 87 FR 20707 (Apr. 8, 2022); 87 FR 13171 (Mar. 9, 2022); 86 FR
46119 (Aug. 18, 2021).
---------------------------------------------------------------------------
The Office began the regulatory process by publishing a
notification of inquiry in March 2021, inviting public comment on the
CCB's operations.\11\ Over the course of the following 15 months, the
Office issued several proposed and final rules relating to different
stages of CCB processes and procedures, such as initiating
proceedings,\12\ conducting active proceedings,\13\ representation of
parties,\14\ opt-out procedures,\15\ and expedited copyright
registration for works involved in claims before the CCB.\16\ The
Office also hired three Copyright Claims Officers, three Copyright
Claims Attorneys, and additional support staff. In collaboration with
the Library of Congress, it built the CCB's electronic filing and case
management system (``eCCB''), as well as setting up virtual hearing
facilities, office space, a standalone website, and other operational
essentials. As a result of these efforts, the CCB was able to launch on
June 16, 2022, before the CASE Act's deadline.\17\
---------------------------------------------------------------------------
\11\ 86 FR 16156 (Mar. 26, 2021).
\12\ 87 FR 16989.
\13\ 87 FR 30060.
\14\ 87 FR 20707.
\15\ 87 FR 13171.
\16\ 86 FR 46119.
\17\ The CASE Act directed the CCB to begin operations within a
year of its enactment, though the Register was empowered to extend
that deadline by up to 180 days. Public Law 116-260, sec. 212(d),
134 Stat. at 2199.
---------------------------------------------------------------------------
Over the past two and a half years, the Office has issued
additional rulemakings. For example, in July 2023, it published a final
rule setting forth the requirements for asserting or responding to
counterclaims based on an agreement pertaining to the same transaction
or occurrence that is the subject of an infringement claim.\18\ In
October 2024, it published a final rule amending the process and fee
for obtaining a certified final determination from the CCB.\19\ The
Office continues to monitor the CCB's operations and make additional
regulatory adjustments as needed.
---------------------------------------------------------------------------
\18\ 88 FR 48380 (July 27, 2023).
\19\ 89 FR 80743 (Oct. 4, 2024).
---------------------------------------------------------------------------
Before identifying the current areas of inquiry, the Office offers
a high-level overview of the rules and regulations governing the steps
in a CCB proceeding, identifying which procedures are pursuant to
regulation or are required by the statute.
A. Initiating Proceedings
To initiate a CCB proceeding, a claimant must pay an initial filing
fee (a portion of the total filing fee) \20\ and submit its claim for a
``compliance review,'' i.e., a review of the claim's sufficiency under
the statute and any relevant regulations.\21\ This process includes two
opportunities for the claimant to cure a deficient claim. Once the
claim is approved, unless the respondent waives personal service,\22\
the claimant must serve notice of the proceeding and a copy of the
claim on the respondent.\23\ This service must comply with federal law
and proof of the service must be filed with the CCB.\24\ Respondents
then have sixty days from service to opt out of participating in the
proceeding.\25\ If the respondent does not submit a timely opt-out
notice, the proceeding enters the active proceeding phase.\26\
---------------------------------------------------------------------------
\20\ 17 U.S.C. 1506(e)(3), 1510(c); 37 CFR 222.2(a). The $100
filing fee is paid in two installments: an initial payment of $40
and a second payment of $60. 37 CFR 222.2(a).
\21\ 17 U.S.C. 1506(f)(1); 37 CFR 224.1; H.R. Rep. No. 116-252
at 22.
\22\ 17 U.S.C. 1506(g)(6); 37 CFR 222.5(c).
\23\ 17 U.S.C. 1506(g); 37 CFR 222.5.
\24\ 17 U.S.C. 1506(f)(2), (g); 37 CFR 222.5(c)(3).
\25\ 17 U.S.C. 1506(g)(1).
\26\ Id. at 1506(i).
---------------------------------------------------------------------------
B. Active Proceedings
Once a proceeding enters the active phase, the claimant makes the
second filing fee payment and the parties attend a pre-discovery
conference and engage in discovery by exchanging certain information
and documents that are relevant to the issues in the proceeding.\27\
Discovery typically involves the use of interrogatories and requests to
produce documents, using standardized CCB-provided forms.\28\ The
claimant then submits written testimony to the CCB, through a written
statement, documentary evidence, and any witness statements.\29\ The
respondent is provided an opportunity to submit its own written
testimony, after which the claimant may submit reply written
testimony.\30\ Pursuant to statute, CCB Officers may decide claims
based only on written testimony or after an optional hearing.\31\
---------------------------------------------------------------------------
\27\ Id. at 1506(n).
\28\ 37 CFR 225.1(a).
\29\ Id. at 222.15.
\30\ Id.
\31\ 17 U.S.C. 1506(c)(2), 506(p); 37 CFR 222.16.
---------------------------------------------------------------------------
If the claimant requests a ``smaller claims'' proceeding when they
file their claim, discovery and written statements can be more
limited.\32\ Only one CCB Officer normally presides over a smaller
claims proceeding,\33\ and proceedings begin with that Officer holding
a conference to determine what parts of standard discovery are
necessary. The written testimony phase is handled by having the parties
present their evidence, witness statements, and any arguments, followed
by a ``merits conference.'' The presiding Officer then provides the
parties with proposed findings of fact, and parties have an opportunity
to respond in advance of a final determination.\34\
---------------------------------------------------------------------------
\32\ 37 CFR 226.4.
\33\ 17 U.S.C. 1506(z); 37 CFR 226.4(a).
\34\ 37 CFR 226.4(e). At any point in the proceeding, the CCB
can hold a voluntary settlement conference, which is handled by an
Officer who is not the presiding Officer in that matter.
---------------------------------------------------------------------------
If a respondent fails to participate in an active proceeding or,
without justifiable cause, fails to meet any filing deadline or other
requirement set forth in an order, the CCB, after providing notice to
the respondent, may initiate default determination proceedings.\35\ As
part of those proceedings, the CCB requires the claimant to submit
written testimony in support of a default determination.\36\ The CCB
then considers the evidence to determine if it is sufficient to find
that respondent has defaulted and whether the respondent has a
meritorious defense.\37\
---------------------------------------------------------------------------
\35\ 17 U.S.C. 1506(u); 37 CFR 227.1.
\36\ 37 CFR 227.2(a).
\37\ Id. at 227.3(a).
---------------------------------------------------------------------------
C. Aiding Participants
The CCB is intended to be easier for pro se parties to use than
litigating in federal court.\38\ The Office developed the CCB's
regulations, forms, processes, and procedures with this goal in mind.
Since the CASE Act's passage, the Office has produced a wide array of
information to educate the public, including parties to CCB
proceedings, about the CCB and its operations. These materials include
a dedicated CCB website (ccb.gov) which provides a user handbook, video
tutorials, handouts, FAQs, and links to additional resources such as
legislative history and rulemaking activity. To date, the Office has
participated in many in-person and virtual events to educate the public
on the CCB and to promote its use. In addition to speaking at external
events,
[[Page 11627]]
CCB staff frequently educates the public through calls, emails, and the
compliance review process. The CCB's website also has a pro bono
directory of law school clinics and other organizations that are
available to provide free or reduced fee services.\39\
---------------------------------------------------------------------------
\38\ H.R. Rep. No. 116-252 at 17.
\39\ See 17 U.S.C. 1506(d)(2).
---------------------------------------------------------------------------
III. The Current Inquiry
The CASE Act requires the Office to complete a study of the CCB's
operations for Congress's review no later than three years after
issuance of the first CCB final determination. In its Copyright Small
Claims report, the Office recommended such a study, explaining that
``[a]s with any unprecedented program, it is difficult to predict all
of the contingencies that might arise once it becomes operational'' and
recommended that ``after three years of operation, the Office should
report to Congress on the efficacy of the system, including in relation
to eligible works and claims, damages limitations, fee-shifting
authority, identification of unknown infringers, and possible inclusion
of mediation or similar [alternative dispute resolution] services.''
\40\ The CASE Act identifies a number of specific subjects that should
be included in the study, but grants the Register the discretion to
also study ``such other matters as [she] believes may be pertinent
concerning the Copyright Claims Board.'' \41\
---------------------------------------------------------------------------
\40\ Copyright Small Claims at 132.
\41\ Public Law 116-260, sec. 212(e)(6), 134 Stat. at 2199-2200.
---------------------------------------------------------------------------
The Register has identified additional questions to expand on and
supplement the topics proscribed by Congress, listed below. The Office
invites written comments on all of these subjects. Parties responding
to this Notice of Inquiry need not address every subject, but the
Office requests that they clearly identify and separately address each
subject for which a response is submitted. This information will be
used to inform the Office's report to Congress, as well as possible
future regulatory work. Input is sought from a broad range of
perspectives, including without limitation those parties that have used
the CCB, considered using the CCB, or declined to use the CCB
(including respondents who have opted out), and legal representatives
of these parties, as well as commenters who provided input to the
Office's prior policy study or its implementing regulations for the
CCB. Input is also sought on whether potential modifications would
involve changing the statute, regulations, or other procedures.
Commenters should provide the factual, legal, or policy basis for
their responses and make clear whether they are submitting their
comment in a personal capacity or on behalf of an organization or
entity they are authorized to represent.
Topics of Inquiry
1. The use and efficacy of the CCB in resolving copyright claims,
including the number of proceedings the CCB could reasonably
administer.\42\
---------------------------------------------------------------------------
\42\ Public Law 116-260, sec. 212(e)(1), 134 Stat. at 2199-2200.
---------------------------------------------------------------------------
a. Is the CCBs existence promoting settlements or other private
dispute resolutions, either without bringing a claim before the CCB or
after filing a claim with the CCB?
b. Is the CCB's $40 initial filing fee deterring frivolous claims
without deterring meritorious claims?
c. Is the compliance review process working as intended and, if
not, how should it be modified?
d. Should the CASE Act's service requirements be modified? Are
there other ways to increase the ease and efficiency of perfecting
service while adequately preserving respondents' due process rights?
e. Is the opt-out system working as intended and, if not, how
should it be modified?
f. Are there ways to further streamline and reduce the complexity
of CCB proceedings while preserving parties' rights? For example,
should any statutory or regulatory time periods be adjusted to allow
for faster resolutions of claims?
g. Are the scope of discovery and the use of standard discovery
forms appropriately tailored to parties' needs and expectations?
h. Are the CCB's procedures governing written testimony
appropriately tailored to parties' needs and expectations?
i. Are the processes and procedures for smaller claims proceedings
appropriately tailored to parties' needs and expectations, compared to
the processes and procedures that apply in standard proceedings?
2. Are there any aspects of other small claims tribunals, including
their models or procedures, that should be considered for the CCB? \43\
---------------------------------------------------------------------------
\43\ The Office previously considered various other tribunals'
models and procedures when making recommendations in its Copyright
Small Claims report. See Copyright Small Claims at 51-91.
---------------------------------------------------------------------------
3. Are there ways that the CCB can be made more accessible and
user-friendly, including for self-represented parties? For instance,
please consider:
a. Whether the CCB's forms, processes, or procedures should be
adjusted; and
b. Whether the CCB should supplement its educational resources
(e.g., its handbook, video tutorials, handouts, and website), either by
revising existing resources or adding additional resources.
4. Are there any changes that could be made to improve the default
process or reduce the incidence of defaults while adequately preserving
respondents' rights and ensuring the timely processing of claims?
5. Are the statutory and regulatory rules for addressing bad-faith
actors working as intended? In particular, is the one-year ban for bad-
faith actors sufficient in length and should there be different
sanctions for repeat offenders?
6. Are there any changes that could be made to improve the ability
of claimants to enforce determinations?
7. Whether adjustments to the CCB's authority are necessary or
advisable, including with respect to: (A) eligible claims, such as
claims under section 1202 of title 17, United States Code (which
addresses the integrity of copyright management information); (B)
eligible types of works; and (C) applicable damages limitations.\44\
---------------------------------------------------------------------------
\44\ Public Law 116-260, sec. 212(e)(2), 134 Stat. at 2199-2200.
---------------------------------------------------------------------------
a. Are there additional claims that arise under title 17 that would
be appropriate for the CCB to resolve?
b. Currently the CASE Act's damages limitations are $30,000 per
proceeding and, for statutory damages, $15,000 per work infringed.
Would raising or lowering these caps improve the operations of the CCB?
c. Whether greater allowance should be made to permit or limit
awards of attorneys' fees and costs to prevailing parties.\45\
Currently the cap for attorneys' fees and costs for bad-faith conduct
under the CASE Act is $5,000; however, in extraordinary circumstances,
the CCB can exceed that cap.\46\ Should this cap be increased or
decreased?
---------------------------------------------------------------------------
\45\ See id.
\46\ 17 U.S.C. 1506(y)(2).
---------------------------------------------------------------------------
8. What additional mechanisms, if any, should the CCB adopt to
assist claimants in ascertaining the identity and location of unknown
online infringers? \47\ Should the CCB be granted subpoena power to
assist parties in identifying or locating potential respondents?
---------------------------------------------------------------------------
\47\ Public Law 116-260, sec. 212(e)(4), 134 Stat. at 2199-2200;
17 U.S.C. 1503(a)(2)(C); see also 17 U.S.C. at 512(h).
---------------------------------------------------------------------------
9. Whether the CCB should be expanded to offer mediation or other
[[Page 11628]]
nonbinding alternative dispute resolution services to interested
parties.\48\
---------------------------------------------------------------------------
\48\ Public Law 116-260, sec. 212(e)(5), 134 Stat. at 2199-2200.
---------------------------------------------------------------------------
10. Other topics of interest to the Register:
a. The CASE Act contains a rule that treats filing certain CCB
claims as equivalent to filing a court action, for the purpose of
contesting a counter-notice under 512(g)(2)(C).\49\ Is this rule
working as intended and, if not, how should it be modified?
---------------------------------------------------------------------------
\49\ 17 U.S.C. 1507(d); see id. at 512(g)(2)(C).
---------------------------------------------------------------------------
b. Do law student representatives, legal clinics, and pro bono
organizations face any obstacles in representing or counseling clients
before the CCB? How can the Office increase CCB participation by these
groups?
c. Are there any other issues relevant to the CCB or the CASE Act
that commenters wish to address, including any proposed statutory or
regulatory changes?
Dated: March 5, 2025.
Suzanne Wilson,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2025-03795 Filed 3-7-25; 8:45 am]
BILLING CODE 1410-30-P