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Copyright Claims Board — Small but mighty?

published in McAfee & Taft tIPsheet | April 14, 2022

As you’ve read in this space before, copyright law can be hard to navigate. Because copyright infringement is a strict liability tort, copying someone else’s material can lead to much more serious consequences than when you looked at the class brain’s math homework in 7th grade. There have been some hefty awards in copyright infringement cases in the news recently, like the jury verdict (later reversed) that would have had Katy Perry paying $2.8 million to rapper Marcus Gray for supposedly using an eight-note riff in her DARK HORSE hit song. (Gray et al. v. Perry et al., No. 2:15-cv-05642 (CD Cal. Mar. 16, 2020). Damage awards are only part of the picture in a copyright battle. Attorney’s fees to press or defend the suit can add up as well, particularly since copyright claims must be brought in federal court. But maybe there’s a better way….

At the end of 2020, Congress passed CASE (Copyright Alternative in Small Claims Enforcement), authorizing the Copyright Office to establish a Copyright Claims Board (CCB) — essentially small claims court for copyright issues. The CCB, which is supposed to begin hearing claims this summer, is meant to be a more accessible, streamlined option to resolve lower stakes disputes.

The CCB is a three-member panel of copyright experts that can hear copyright claims with less than $30,000 in damages. Claims under $5,000 have an even more streamlined process, with only one hearing officer. Physically located in Washington, D.C., its proceedings are electronic, so it isn’t necessary to appear in person for disputes involving claims of infringement, declarations of non-infringement, and misrepresentation in takedown procedures under the Digital Millennium Copyright Act. Unlike a claim in federal court, plaintiffs at the CCB don’t have to have a registration for their works in hand prior to bringing a claim. However, they do have to have an application for registration on file, and can ask for expedited review of that application. Discovery, where the parties share information about the matter and often a very expensive part of a lawsuit, will be far more limited in scope and duration than in federal court.

If you choose to file a claim before the CCB, you can ask for money damages, either statutory or actual damages and profits, but only up to $30,000. Attorney’s fees and costs will only be awarded if there’s a determination of bad faith, and are capped at $5,000 (or $2,500 if the other party is not represented by counsel). The CCB can’t issue injunctive relief (like an order to cease using the infringed work), but if the parties agree that the defendant will modify or stop certain infringing behavior, the CCB will include that agreement in its final determination.

It’s not mandatory — you can still choose federal court if you prefer, but you can’t bring the same claim in both venues. You can opt out of participation in a CCB proceeding, but that might result in a default or bumping the matter into federal court. The CCB will have the power to dismiss claims and curb abusive actors/copyright trolls who bring actions in bad faith — something that’s been a struggle at times for the federal courts. If it works as planned, this new board may make it much easier for copyright holders to ward off infringers.