Copyright Claims Board: Now Entering the “Active Phase"
AGG Corporate and Technology attorney Michelle Davis authored an article for the January 2023 issue of Law.com’s Entertainment Law & Finance Newsletter providing an update on the Copyright Claims Board (“CCB”) and its outlook for 2023.
Launched in June 2022, the CCB was designed to establish a small claims court that would serve as a more efficient, less expensive alternative to federal proceedings. Of the more than 250 claims received, at least 11 have made it to the “active phase” with more expected in 2023. “Active phase means a respondent was served, failed to ‘opt out,’ and now the esteemed three-member tribunal of copyright experts may finally get a chance to make some rulings,” Michelle explained.
Despite its intentions to save time and money for handling small claims, Michelle noted that a drawback to this is that damages and remedies for copyright infringement would be limited, too.
The cost to file with the CCB is currently $40 for initial filing and another $60 when the proceeding enters the active phase, significantly less than the $402 it costs to file a suit in a federal district court. While this “discount” is coupled with savings from having to travel to D.C. because cases are all handled electronically and remotely, “with bargain prices come bargain remedies,” Michelle said. Defendants cannot be ordered to pay more than $30,000 In damages in a board proceeding, so a plaintiff must strategically consider the financial solvency of their respondent, merits of the case, and the possibility of missing a windfall in federal court (e.g., a six-figure payout for willful infringement).
Other considerations about whether to pursue a claim with the CCB include the scope and that participation with the CCB is voluntary — that is a respondent has 60 days to “opt out.” As for scope, CCB only handles three types of copyright-related claims and counterclaims: i) infringement; ii) declaration of noninfringement; and iii) misrepresentation claims related to takedown notice or counter-notice under the Digital Millennium Copyright Act. And when weighing the possibility that the respondent will opt out, claimants may consider whether they would be willing to advance the issue to federal court or whether the respondent would be disposed to taking their chances with the less expensive CCB proceedings.
In addition to highlighting other aspects of the CCB docket, including caps on the number of claims that can be filed, streamlined discovery and limited appeals options, Michelle concluded the article by detailing common filing mistakes to avoid once determining the CCB is the best route for a claim. These mistakes include failing to provide enough detail or clarity (see the CCB Handbook for more details on requirements), inability to file against foreign entities, seeking unauthorized remedies and more.
For more details on filing a claim with the Copyright Claims Board, you may access the full article here.
- Michelle G. Davis