The Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020 established the Copyright Claims Board (CCB). The CCB is a new administrative court housed within the United States Copyright Office that is set to go into effect on December 27, 2021. The CCB is designed to provide a cheaper and more efficient venue over federal court to litigate certain copyright infringement claims. The CCB will have three full time judges (a/k/a Copyright Claims Officers) appointed by the Librarian of Congress, with at least two full time attorneys to support their efforts.
The CCB will hear certain civil based copyright claims, counterclaims, and defenses. Examples include infringement claims, declaratory relief actions of non-infringement, and claims for misrepresentation related to a Digital Millennium Copyright Act (DMCA) takedown notice. While the CCB can award monetary damages and help settle claims and counterclaims, the CCB can only rule on copyright infringement claims for underlying copyrighted works that are already registered. This is in line with the Fourth Estate SCOTUS case requiring registration, not merely application, before brining a federal action of copyright infringement. If there is pending federal litigation on the underlying copyright, the federal court would need to grant a stay and permit the CCB to proceed.
Procedurally, the filing party (claimant) must initiate one of more claims for the CCB to review. If in compliance, the CCB will permit the proceeding to move forward. Then the claimant has 90 days to serve the accused infringer (or respondent) with a copy of the filed claim and notice, and file proof of service with the CCB.
Notably, a respondent must affirmatively "opt out" of the CCB proceeding within 60 days after being served or they will have effectively consented to have the case heard before the CCB and lose their right to litigate the case in federal court. If the CCB case proceeds, it is designed to move forward with limited discovery, no formal motion practice, and no in-person hearings. Different than federal court (prior to the pandemic at least), all appearances are virtual using Internet based technology.
The CCB is limited to awarding $30,000 maximum for each proceeding. For claims based on timely registered copyrighted works (i.e. entitled to statutory damages), the claimant is eligible to an award of $15,000 in statutory damages per work infringed, with a total of $30,000 possible in one proceeding (excluding attorneys fees and costs).
In a change from existing law, the CASE Act allows for statutory damages for works not timely registered. In this case, a claimant is only eligible for an award of $7,500 in statutory damages per work infringed, with a maximum of $15,000 in any one proceeding (again, excluding attorneys fees and costs). Prior to the CASE Act, a copyright owner could only recover statutory damages if the works were registered before the infringement started or within three months of publication.
The claimant can also elect to recover actual damages and profits up to $30,000 (excluding attorneys fees and costs), in lieu of statutory damages. Attorneys fees and costs are potentially recoverable, with a cap of $5,000, but only in cases where the opposing party has demonstrated "bad faith".
Notably, while the CCB cannot consider whether a party infringed a copyright work "willfully" when assessing an award of statutory damages, it can consider whether the party agreed to mitigate the alleged infringing activity as an additional factor when awarding statutory damages.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.