What’s a copyright without a copyremedy?: Overview of the Copyright Claims Board

Nathan Clark is a partner at Cline Williams and leads its IP practice group. His practice focuses primarily on intellectual property litigation, both in court and before administrative agencies, and on advising businesses and individual clients with their intellectual property strategies. Clark is a 2015 graduate of the University of Nebraska College of Law and former clerk for Hon. C. Arlen Beam, of the 8th U.S. Circuit Court of Appeals.

Stavros Piperis is an associate at Cline Williams whose practice includes commercial litigation and intellectual property-related matters. Piperis graduated magna cum laude from Creighton University School of Law in 2023, and he will begin a judicial clerkship at the Supreme Court of Nebraska in August. Piperis is also a member of the Archbishop Iakovos Leadership 100 Fund, a nonprofit organization affiliated with the Greek Orthodox Archdiocese of America.

A local, aspiring musician discovered her music is being used to score a YouTube video. A freelance software developer designs a program for a client without a work-for-hire agreement. A local organization copies and distributes material from a publication to attendees at a meeting. 

In each of these cases, and myriad more, a copyright dispute may be brewing — but is it always worth a federal case? There may be a more practical option. 

Why the need for a copyright “small claims” forum? 

While copyright infringement claims may not be particularly common in Missouri,¹ they do occur and can be a source of significant stress and cost on smaller clients. From the plaintiff’s perspective, the expense of federal litigation² to enforce a copyright claim may exceed any realistic expectation of damages and the potential value of an injunction. From the defendant’s perspective, it may face the possibility of significant damages, as well as discretionary fee- and cost-shifting.³ In short, there is a mismatch in some copyright cases between the value of the case and the cost of litigation — in other words, between the value of the right and the cost of enforcing that right. 

One reason for this mismatch is that smaller-value copyright claims very often involve parties without the means to hire lawyers for protracted litigation or to satisfy a large judgment, or the value of the work simply isn’t enough to justify such expenditures. Indeed, as of 2013, “the median cost for a party to litigate a copyright infringement lawsuit with less than $1 million at stake through appeal is $350,000.”⁴ 

Independent artists, authors, or others in creative fields may wish to enforce their copyrights but lack the means or expertise to do so for isolated acts of infringement. An individual or small entity that borrows an image off the internet without a license may balk at the expense of asserting meritorious, but contested, defenses. The effects of this disparity between the value and enforcement cost of copyright might include the enjoyment of undue leverage by one party over another, inefficient dispute resolution, and a failure of the copyright system to have its intended effect for a class of litigants. 

Enter the U.S. Copyright Office’s Copyright Claims Board. Officially launched in June 2022,⁵ the CCB is “an efficient, streamlined way to resolve copyright disputes,” that is “designed to be less expensive and faster than bringing a case in a federal court.”⁶ The origins of the CCB date to discussions between officials at the U.S. Copyright Office and the Judiciary Committee of the House of Representatives, which identified the need “to ensure that authors, photographers, and other copyright owners — many of whom rely upon the promise of exclusive rights associated with the grant of copyright to earn a living and provide for their families — have a realistic ability to enforce those rights when they have a comparatively modest claim for damages.”⁷

The key features of the CCB for your client to understand include:

1. This procedure is only available to the owners of works that are either registered with the U.S. Copyright Office or who have applied for registration. 

2. Although parties may be represented, the CCB’s procedures and online accessibility are designed to be accessible to pro se litigants. 

3. Participation is voluntary by both parties. 

4. Damages are capped at $15,000 per work, or $30,000 in total. 

5. The CCB’s lower cost and speedier resolution come at the cost of reduced or eliminated fact discovery, evidentiary hearings, joinder of non-copyright claims, and motion practice.

6. Near elimination of federal court review for fully adjudicated claims. 

7. There are regulations setting out procedures for even “smaller claims” that do not exceed$5,000.⁸

Although this may be an ideal avenue in some instances, a client should carefully consider the ramifications of pursuing or defending a claim through the CCB. Certain tools available to any litigant in the Federal Rules of Civil Procedure, such as depositions and subpoenas, are not routinely available absent a request to the CCB.⁹ The truth-testing benefit of the Rules of Evidence is not available, excepting relevance and the limitation of testimony to parties and witnesses (though expert testimony may be offered in exceptional cases for good cause).¹⁰ And the upshot of this proceeding, if a litigant is unhappy with the result, is an administrative appeal, but not review in a federal court. 

But as an alternative to prohibitively expensive and time-consuming litigation, the CCB offers an opportunity to resolve smaller-scale and smaller-value claims. If you represent a small business who has just received a cease-and-desist letter, an individual with a potential copyright claim, or others for whom “federal court is effectively inaccessible,”¹¹ consider the CCB. 

Overview of the CCB 

Congress established the CCB in 2020.¹² The Copyright Alternative in Small-Claims Enforcement (CASE) Act aimed to “create a cheaper and quicker way for creators to resolve copyright disputes,” with the CCB serving as a tribunal that’s more accessible and “user-friendly” than a federal district court.¹³ The CASE Act enjoyed robust bipartisan support, passing the U.S. House of Representatives by a 410–6 vote before being signed into law as part of an omnibus COVID-19 Relief Bill in December 2020.¹⁴ 

The CASE Act amended Title 17 of the U.S. Code to include 11 sections creating the CCB and outlining the rules and effects of its proceedings.¹⁵ The most noteworthy provisions are summarized below. 

Structure and personnel 

Proceedings before the CCB are decided by a panel of three full-time copyright claims officers who serve for renewable terms of six years.¹⁶ Their role is quasi-judicial and includes the authority to render determinations on the copyright claims before the CCB, as well as duties such as managing the proceedings, requesting document production, awarding monetary relief, and conducting hearings.¹⁷ The officers must render determinations “independently” based on the record before them, but such determinations are bound by the provisions of the CASE Act, “judicial precedent,” and other regulations of the Register of Copyrights.¹⁸

At least two copyright claims attorneys assist in the administration of CCB proceedings and review claims upon filing for compliance with applicable rules and regulations.¹⁹ 

Nature of proceedings 

The CASE Act enumerates the types of claims the CCB has the power to render determinations for, including copyright infringement under 17 U.S.C. § 106, declarations of noninfringement under 17 U.S.C. § 106, and misrepresentation under 17 U.S.C. § 512(f), as well as related counterclaims and legal or equitable defenses.²⁰ The CCB may not issue rulings on claims that lie beyond the CASE Act’s scope or were finally adjudicated by a court of competent jurisdiction.²¹ Claims that are pending before such a court are also out of bounds for the CCB unless that court has granted a stay to permit the CCB claim to proceed.²² 

For remedies, the CCB may award monetary damages of up to $15,000 per work or $30,000 total and enforce agreements to cease certain infringing activities.²³ 

Regulations for smaller claims 

The CASE Act requires the Register of Copyrights to establish additional regulations for CCB claims in which the total damages sought do not exceed $5,000.²⁴ Such claims only require the presence of one copyright claims officer, but their determination has the same effect as other CCB determinations.²⁵ Final rules were adopted in January 2024 and are now codified.²⁶ 

Appearances and representation

Section 1506 of the CASE Act contains many of the rules that make CCB proceedings more forgiving — and perhaps less effective — than suits in federal district court. One defining feature of CCB proceedings is that participation is voluntary: Respondents against whom a claim is brought are free to opt out with written notice to the CCB within 60 days after service.²⁷ Proceedings before the CCB also technically take place at the CCB offices in Washington, D.C., but parties generally may appear virtually and need not attend in person.²⁸ Parties are free, but not required, to hire a lawyer to represent them.²⁹ 

Commencement of proceedings, service of notice, and related matters 

The rules for commencing a CCB action are similarly lenient. A claimant files a claim with the CCB that includes facts material to the claim, a certification of accuracy and truthfulness, and a $100 filing fee.³⁰ The copyright claims attorneys review these filings for compliance, but there are repeated opportunities to amend, with the worst possible outcome a dismissal without prejudice.³¹ 

The same goes for insufficient service and failure to join a necessary party; the CCB enforces standards in these areas but will merely dismiss the case without prejudice if parties do not adhere to them.³² The most rigid rule in this area relates to the opt-out procedures: While a respondent may opt out of a CCB action through written notice within 60 days after being served, failure to opt out within that time period binds the respondent to the proceedings’ determinations.³³ 

Discovery, party submissions, and hearings 

Discovery in CCB proceedings is generally “limited to the production of relevant information and documents, written interrogatories, and requests for admission.”³⁴ The CCB may, however, approve additional relevant discovery or issue a protective order to protect confidential information upon a party’s request and for good cause shown.³⁵ CCB proceedings are also distinct in that they lack any formal motion practice, although parties may request that the CCB address case management and discovery responses.³⁶ 

The CCB itself may also request or permit parties to make submissions addressing relevant questions of fact or law, or other matters, including issues raised sua sponte by the Copyright Claims Officers.³⁷ In such a scenario, a party may respond to an opposing party’s submission.³⁸ 

The CCB may conduct hearings to receive oral argument and testimony in relation to these issues, and at least two copyright claims officers must be present to conduct a hearing.³⁹ 

Evidence 

The CASE Act empowers the CCB to consider the following general types of evidence in a proceeding: (1) documentary and other nontestimonial evidence that is relevant to the claims, counterclaims, or defenses in the proceedings; and (2) testimonial evidence — submitted under penalty of perjury in written form or at a hearing — limited to statements of the parties and nonexpert witnesses, that is relevant to a proceeding’s claims, counterclaims, and defenses.⁴⁰ Expert witness testimony and other types of testimony are permitted only in exceptional cases for good cause shown.⁴¹ 

The CASE Act notes, however, that the CCB may admit the evidence described above “without application of formal rules of evidence.”⁴² The CCB makes factual findings under a preponderance-of-the-evidence standard.⁴³ 

Determinations and resolution 

Parties are free to pursue settlement of some or all of their claims at any time in a CCB proceeding.⁴⁴ If they do not, their claims will be subject to determination by the CCB, which requires a majority vote of the copyright claims officers.⁴⁵ Determinations must be in writing, include an explanation of their factual and legal bases, set forth terms of any settlement or by which respondents have agreed to cease infringing activity, and include a clear statement of damages and relief awarded.⁴⁶ The CCB may also enter a default determination against a respondent who fails to appear or ceases participating in a proceeding without justifiable cause.⁴⁷ Final CCB determinations are published online, but the CASE Act exempts most other information relating to CCB proceedings from public disclosure.⁴⁸ A copyright claims officer who dissents from a decision may append a statement setting forth the grounds for the dissent.⁴⁹ 

Appeals

Within 30 days after the CCB issues a final determination, a party may submit a written request for reconsideration of or amendment to the determination “if the party identifies a clear error of law or fact material to the outcome, or a technical mistake.”⁵⁰ In such a case, the CCB must provide the other parties an opportunity to address the request and then either deny it or issue an amended final determination.⁵¹ 

If the CCB denies a party’s reconsideration request, that party has 30 days to request a further review by the Register of Copyrights, which reviews the CCB’s denial for abuse of discretion.⁵² The register either denies the request or remands the proceeding to the CCB for reconsideration of specified issues and for issuance of an amended final determination.⁵³ In the case of a remand, the amended final determination which results may not be reviewed further except by a federal district court.⁵⁴ 

Review and confirmation by district court 

If a party has failed to pay damages or otherwise comply with relief awarded in a CCB proceeding, the aggrieved party has one year to apply to a federal district court for an order confirming the relief awarded and reducing it to judgment.⁵⁵ If a party so applies, the CASE Act requires the court to grant the order and direct entry of judgment unless a party has secured an order from the court vacating, modifying, or correcting the CCB determination.⁵⁶ 

Parties may seek such an order within 90 days of a final determination by the CCB in three cases:

(A) if the determination was issued as a result of fraud, corruption, misrepresentation, or other misconduct; 

(B) if the CCB exceeded its authority or failed to render a final determination concerning the subject matter at issue; and 

(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.⁵⁷

Effect of proceedings 

Under the CASE Act, claims and counterclaims which have reached final determination in a CCB proceeding may not be relitigated in any other court or tribunal by the parties who took part in the proceeding.⁵⁸ If the parties differ, however, or if the CCB did not issue a final determination on a claim, the parties may relitigate.⁵⁹ If a claim is the subject of a pending or active proceeding before the CCB, federal district courts must issue a stay of proceedings or some other appropriate relief where such a claim is brought before the court.⁶⁰ Also noteworthy is the general rule that CCB determinations may not serve as legal precedent in any other actions or proceedings, whether before the CCB or another court or tribunal.⁶¹ 

The sayers and the naysayers 

Despite government officials’ packaging of the CCB as “cheaper,” “quicker,” and more “user-friendly” than federal district court, advocates for both copyright owners and accused infringers had mixed reactions to the enactment of the CASE Act.⁶² 

Organizations representing artists and music publishers, such as the Recording Industry of America and the National Music Publishers’ Association, generally backed the creation of the CCB, arguing it would “strengthen creators’ ability to protect their works against infringement online and promote a safer, fairer environment.”⁶³ These entities presumably had in mind the CCB’s relaxed procedural and pleading standards, lowering the barrier to entry for unsophisticated claimants. 

Other pro-creator voices disagreed, however. Some worried that the creation of an entirely new tribunal and claims process would overwhelm smaller actors who already struggled to enforce their rights in the courts.⁶⁴ The act’s soft stance on participation also comes to mind; if a CCB proceeding is indeed the best way for unsophisticated claimants to protect their work, there is nothing stopping respondents from opting out and choosing full-blown litigation instead. That said, the CASE Act does eliminate geographical barriers to participation in proceedings, and if a respondent consents to address a claim through the CCB, a less experienced claimant likely benefits from the relative informality of the process. The CCB merely creates an additional option for copyright owners with claims to pursue; it does not prevent claimants from pursuing any of the paths already available for enforcement of copyright ownership. 

Consumer rights and free speech organizations also opposed the creation of the CCB. Some argued the CASE Act “creates a system that will harm everyday users who, unlike the big players, won’t have the time and capacity to negotiate this new bureaucracy.”⁶⁵ One free speech-focused nonprofit denounced the act’s removal of copyright claims from the jurisdiction of the courts, arguing the creation of the CCB “mean[t] Internet users could face up to $30,000 in penalties for sharing a meme or making a video, with liability determined not by neutral judges but by biased bureaucrats.”⁶⁶ Another warned that the CCB could “bankrupt individual artists and creators while letting corporations and sophisticated mass infringers off the hook entirely.”⁶⁷ 

Advocates for “ordinary internet users” also questioned whether the CCB is truly confined to hearing “small claims,” pointing out that the $30,000 damages cap is “higher than the maximum damages allowed in the small claims courts of nearly every state.”⁶⁸ There were further concerns that despite the ability to opt out of CCB proceedings, the writing requirement and 60-day deadline puts too heavy a burden on unsophisticated respondents.⁶⁹ 

Results so far 

The CCB began hearing cases in June 2022.⁷⁰ In its first year, the CCB received approximately 500 filed claims — at a rate of about two claim filings per business day — from claimants in over 40 states and 20 other countries, including both individuals and small and large businesses.⁷¹ According to the CCB, over 70% of those claimants were self-represented, either as an individual or a business in-house counsel or employee.⁷² There were more photography-based infringement claims than any other type over the first year, but the majority of infringement claims involve other kinds of media.⁷³ 

CCB officials also observed that the participation rate has exceeded expectations; the first year saw more opt-ins than opt-outs.⁷⁴ One copyright claim officer attributed this to the benefits the CCB offers parties that federal courts do not, such as the $30,000 damages cap, the time and money saved by avoiding formal litigation, and the fact that the copyright claims officers have far more copyright experience than most federal judges.⁷⁵ 

CCB officers have nonetheless conceded that the process is imperfect. One acknowledged there are reasons to choose litigation over a CCB proceeding, such as where more formal and rigorous discovery through depositions and third-party subpoenas is needed.⁷⁶ Officers have also admitted there is a “steep learning curve” for many first-time claimants.⁷⁷ Although some have no difficulty with the process, most parties to CCB proceedings “appear to have little or no prior experience with litigation,” and many run into difficulties when drafting a claim, serving process, and presenting evidence on damages.⁷⁸ This is reflected in the fact that a large swath of CCB claims never make it through the initial compliance review by the copyright claims attorneys: A potential cause for concern, though one official argued that the CCB “is not here to let any claim go through regardless of its flaws” and that the high dismissal count is “a positive indicator of the CCB’s effectiveness.”⁷⁹ 

Overall, CCB officers judged the board’s inaugural year to be a great success and “extremely well-received.”⁸⁰

Conclusion 

There is little else as frustrating to potential litigants as possessing a right without the means to vindicate it. While the CCB may or may not be the right solution for your client, it is a welcome effort toward providing copyright claimants and defendants an alternative, more accessible, copyremedy. 

Shared with permission from the Nebraska State Bar Association, The Nebraska Lawyer (May/June 2024).

Endnotes 
1 In a U.S. Courts overview of intellectual property claims nation-wide from 1996-2018, Missouri accounted for 31 copyright claims filed on an annual basis, or 0.2% of all copyright claims nationally. Just the Facts: Intellectual Property Cases — Patent, Copyright, and Trademark, U.S. COURTS (Feb. 13, 2020), https://www.uscourts.gov/news/2020/02/13/just-facts-intellectual-property-cases-patent-copyright-and-trademark. This number does not capture instances where a Missouri resident sues an out-of-state alleged infringer. 28 U.S.C. § 1400 (providing for venue where “the defendant or his agent resides or may be found”). Nor does it capture disputes resolved privately through settlement before an action is commenced. 

2 “No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to … copyrights.” 28 U.S.C. § 1338(a). 

3 17 U.S.C. § 504(c) (providing statutory damages for registered works of up to $30,000 for all infringements involved in an action of any one work, and up to $150,000 for willful infringement); Id. § 505. 

4 U.S. COPYRIGHT OFF., COPYRIGHT SMALL CLAIMS: A REPORT OF THE REGISTER OF COPYRIGHTS 7 (2013), available at 
https://www.copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf.

5 Copyright Office Announces Claims Board is Open for Filing, COPYRIGHT.GOV (June 16, 2022), https://www.copyright.gov/newsnet/2022/969.html#:~:text=Issue%20No.,claims%20of%20 up%20to%20%2430%2C000. 

6 About the Copyright Claims Board, CCB.GOV, https://ccb.gov/about/(last visited Mar. 15, 2024). 

7 Letter from Lamar S. Smith, Chairman, U.S. House Judiciary Comm. to Maria A. Pallanter, Reg. of Copyrights (Oct. 11, 2011), in U.S. COPYRIGHT OFF., supra n. 4.

8 37 C.F.R. Part 226. 

9 17 U.S.C. § 1506(n). 

10 Id. § 1506(o). 

11 U.S. COPYRIGHT OFF., supra n. 4 at 8. 

12 Consolidated Appropriations Act, 2021, Pub. L. 116-260, Div. Q, Title II, § 212, 134 Stat. 2177 (2020) (Copyright Alternative in Small-Claims Enforcement Act of 2020). 

13 Blake Brittain, U.S. Copyright Office’s new small-claims court opens for business, Reuters (June 16, 2022), available at https://www.reuters.com/legal/litigation/us-copyright-offices-new-small-claims-court-opens-business-2022-06-16/. 

14 See, e.g., Jan Wolfe, IN BRIEF: U.S. House votes in favor of copyright small claims court bill, REUTERS LEGAL (October 23, 2019), available at https://www.westlaw.com/Document/I36d1cb40f5e711e99f22d4f86d0a2ff9/View/FullText.html ?transitionType=Default&contextData=(sc. Default)&VR=3.0&RS=cblt1.0; Cynthia Ahmed, Copyright Alternative in Small-Claims Enforcement (CASE) Act, Harvard Journal of Law and Technology (April 23, 2021), available at https://jolt.law.harvard.edu/digest/copyright-alternative-in-small-claims-enforcement-case-act. 

15 17 U.S.C. §§ 1501–11. 

16 17 U.S.C. § 1502. 

17 17 U.S.C. § 1503. 

18 Id.

19 Id.

20 17 U.S.C. § 1504.

21 Id.

22 Id.

23 Id.

24 17 U.S.C. § 1506.

25 Id.

26 Copyright Claims Board: Active Proceedings and Evidence - Smaller Claims Procedures, 89 Fed. Reg. 2489 (Jan. 16, 2024) (codified at 37 C.F.R. Parts 220, 222, and 226).

27 17 U.S.C. § 1506.

28 Id.

29 Id.

30 Id.; see also About the Copyright Claims Board, CCB.GOV, https://ccb.gov/about/ (last visited Mar. 16, 2024) (providing fee schedule).

31 17 U.S.C. § 1506.

32 Id.

33 Id.

34 Id.

35 Id.

36 Id.

37 Id.

38 Id.

39 Id.

40 Id.

41 Id.

42 Id.

43 Id.

44 Id.

45 Id.

46 Id.

47 Id.

48 Id.

49 Id.

50 Id.

51 Id.

52 Id.

53 Id.

54 17 U.S.C. § 1508.

55 Id.

56 Id.

57 Id.

58 17 U.S.C. § 1507.

59 Id.

60 17 U.S.C. § 1509.

61 17 U.S.C. § 1507. 

62 Brittain, supra note 13. 

63 Id.

64 See Cynthia Ahmed, Copyright Alternative in Small-Claims Enforcement (CASE) Act, Harvard Journal of Law and Technology (April 23, 2021), available at https://jolt.law.harvard.edu/digest/copyright-alternative-in-small-claims-enforcement-case-act. 

65 Jason Kelley, The CASE Act Is Just the Beginning of the Next Copyright Battle, Electronic Frontier Foundation (December 22, 2020), available at https://www.eff.org/deeplinks/2020/12/case-act-hidden-coronavirus-relief-bill-just-beginning-next-copyright-battle. 

66 Id.

67 Brittain, supra note 13. 

68 Mitch Stoltz, Copyright “Small Claims” Quasi-Court Opens. Here’s Why Many Defendants Will Opt Out, Electronic Frontier Foundation (June 17, 2022), available at https://www.eff.org/deeplinks/2022/06/copyright-small-claims-quasi-court-opens-heres-why-many-defendants-will-opt-out. 

69 Id.

70 Brittain, supra note 13. 

71 Copyright Office Celebrates First Anniversary of Copyright Claims Board, 16 Landslide 51 (2023).

72 Id.

73 Id.

74 Id.

75 Id.

76 Id.

77 Id.

78 Id.

79 Id.

80 Id.