Copyright Alternative in Small-Claims Enforcement (“CASE”) Act Regulations, 16156-16165 [2021-06322]

Download as PDF 16156 Federal Register / Vol. 86, No. 57 / Friday, March 26, 2021 / Proposed Rules Dated: March 5, 2021. L.M. Dickey, Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. 2021–05154 Filed 3–25–21; 8:45 am] BILLING CODE 9110–04–P LIBRARY OF CONGRESS U.S. Copyright Office 37 CFR Chapter III [Docket No. 2021–1] Copyright Alternative in Small-Claims Enforcement (‘‘CASE’’) Act Regulations U.S. Copyright Office, Library of Congress. ACTION: Notification of inquiry. AGENCY: The U.S. Copyright Office is issuing a notification of inquiry regarding its implementation of the Copyright Alternative in Small-Claims Enforcement (‘‘CASE’’) Act. The CASE Act establishes the Copyright Claims Board (‘‘CCB’’), an alternative forum in which parties may voluntarily seek to resolve certain copyright infringement and other claims. The Office must establish regulations to govern the CCB and its procedures, including rules addressing service of notice and other documents, waiver of personal service, notifications that parties are opting out of participating in the forum, discovery, a mechanism for certain claims to be resolved by a single CCB Officer, review of CCB determinations by the Register of Copyrights, publication of records, certifications, and fees. The statute also allows the Office to adopt several optional regulations, including regulations addressing claimants’ permissible number of cases, eligible classes of works, the conduct of proceedings, and default determinations. The statute vests the Office with general authority to adopt regulations to carry out its provisions. To assist in promulgating these regulations, the Office seeks public comment regarding the subjects of inquiry discussed in this notification. DATES: Initial written comments must be received no later than 11:59 p.m. Eastern Time on April 26, 2021. Written reply comments must be received no later than 11:59 p.m. Eastern Time on May 10, 2021. ADDRESSES: For reasons of governmental efficiency, the Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted khammond on DSKJM1Z7X2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 16:46 Mar 25, 2021 Jkt 253001 electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office’s website at https:// www.copyright.gov/rulemaking/caseact-implementation/. If electronic submission of comments is not feasible due to lack of access to a computer and/ or the internet, please contact the Office using the contact information below for special instructions. FOR FURTHER INFORMATION CONTACT: John R. Riley, Assistant General Counsel, by email at jril@copyright.gov, Brad A. Greenberg, Assistant General Counsel, by email at brgr@copyright.gov, or Rachel Counts, Paralegal, by email at rcounts@copyright.gov. They can each be reached by telephone at 202–707– 8350. SUPPLEMENTARY INFORMATION: I. Background A. The CASE Act and the Copyright Claims Board On December 27, 2020, the President signed into law the Copyright Alternative in Small-Claims Enforcement (‘‘CASE’’) Act of 2020.1 The statute establishes the Copyright Claims Board (‘‘CCB’’), a voluntary tribunal in the Copyright Office (‘‘Office’’) comprised of three Copyright Claims Officers who have the authority to render determinations on certain copyright disputes that have a low economic value (‘‘small copyright claims’’). Congress created the CCB to address the significant challenges of litigating small copyright claims in federal court,2 a problem analyzed in depth in the Office’s 2013 policy report, Copyright Small Claims.3 This report included model legislation that Congress drew on in developing the statute, and Congress incorporated the Office’s report and supporting materials into the statute’s legislative history.4 Prior to the CCB beginning operations, jurisdiction to hear copyright infringement suits resides exclusively in federal courts.5 The statute does not displace or limit the ability to bring copyright infringement claims in federal court. Instead, the law provides an alternative forum to decide small copyright claims in a manner that is more accessible to pro se parties and other parties that otherwise could not afford to litigate their claims.6 The CCB has the authority to decide copyright infringement claims (asserted by copyright holders), claims seeking a declaration of noninfringement (asserted by users of copyrighted works or other accused infringers), and misrepresentation claims under 17 U.S.C. 512(f).7 District courts can also refer parties to have their disputes decided by the CCB as part of their alternative dispute resolution programs.8 While the statute mandates the creation of the CCB, it does not change the underlying copyright law with respect to these disputes. The CCB will employ existing case law in making its determinations and, in the case of conflicting judicial copyright precedents that cannot be reconciled, the CCB ‘‘shall follow the law of the Federal jurisdiction in which the action could have been brought if filed in a district court of the United States,’’ or, if the action could have been brought in multiple jurisdictions, the jurisdiction that ‘‘has the most significant ties to the parties and conduct at issue.’’ 9 All CCB determinations are non-precedential.10 The CCB may consult with the Register of Copyrights on general issues of law, although, similarly to the Copyright Royalty Board (‘‘CRB’’), it cannot do so regarding the facts of any pending matter or the application of law to those facts.11 Participation in the CCB is voluntary for all parties.12 In establishing the CCB, Congress adopted a system whereby respondents must be notified of a claim asserted against them, and have the opportunity to opt out of participating in this alternative forum.13 As with private arbitration models, participants may consent to participate in CCB proceedings, waiving their ability to have a dispute heard in federal court including any right to a jury trial.14 As noted below, default determinations are able to be reviewed and set aside by an Article III judge, as an additional safeguard for defaulting respondents.15 6 H.R. 1 Public Law 116–260, sec. 212, 134 Stat. 1182, 2176 (2020). 2 See, e.g., H.R. Rep. No. 116–252, at 18–20 (2019). Note, the statute’s legislative history cited is for H.R. 2426, 116th Cong. (2019), the CASE Act of 2019, a bill largely identical to the CASE Act of 2020. 3 U.S. Copyright Office, Copyright Small Claims (2013) https://www.copyright.gov/docs/ smallclaims/usco-smallcopyrightclaims.pdf (‘‘Small Claims Report’’). 4 H.R. Rep. No. 116–252, at 19. 5 17 U.S.C. 301(a); 28 U.S.C. 1338(a). PO 00000 Frm 00072 Fmt 4702 Sfmt 4702 Rep. No. 116–252, at 17. U.S.C. 1504(c)(1)–(3). 8 Id. 1509(b); see 28 U.S.C. 651. 9 17 U.S.C. 1503(b), 1506(a)(2); H.R. Rep. No. 116–252, at 21–22, 25–26. 10 H.R. Rep. No. 116–252, at 21–22, 33. 11 17 U.S.C. 1503(b)(2); see also id. 802(f)(1)(A)(i) (parallel CRB provision). 12 See id. at 1503(a), 1504(a); H.R. Rep. No. 116– 252, at 17, 21. 13 17 U.S.C. 1506(g)(1), (i). 14 H.R. Rep. No. 116–252, at 21; Small Claims Report at 97–99. 15 17 U.S.C. 1508(c)(1)(C). 7 17 E:\FR\FM\26MRP1.SGM 26MRP1 Federal Register / Vol. 86, No. 57 / Friday, March 26, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS If a party fails to comply with a CCBordered award, the party seeking relief will need to seek a district court order to enforce it.16 The CCB can award multiple types of relief. First, the CCB can award monetary relief of up to $30,000 per proceeding regardless of the number of works involved, exclusive of attorneys’ fees and costs (discussed below).17 This can include (1) actual damages and profits attributable to the infringement, or (2) statutory damages. When awarding statutory damages, the CCB must apply different monetary caps and availability criteria than those applied in federal court. Specifically, the CCB may award up to $15,000 in statutory damages per work infringed for works registered within the Copyright Act’s section 412 time limits,18 and up to $7,500 in statutory damages per work infringed for non-timely registered works (with a cap of $15,000 per proceeding for non-timely registered works). Additionally, when assessing statutory damages, the CCB may not consider or make any finding that an infringement was willful, which typically increase statutory damages in federal court.19 The CCB can only award reasonable costs and attorneys’ fees if doing so would be in the interests of justice.20 Costs and attorneys’ fees are not included in the monetary damages caps,21 but instead have their own limitations. When a party engages in bad-faith conduct, the CCB can award reasonable costs and attorneys’ fees up to $5,000, or $2,500 for pro se claimants.22 Bad-faith conduct includes where ‘‘a party pursued a claim, counterclaim, or defense for a harassing or other improper purpose or without a reasonable basis in law or fact.’’ 23 Such bad-faith conduct could include failure to prosecute, including failure to meet one or more deadlines or requirements set forth in the CCB’s schedule without justifiable cause.24 16 H.R. Rep. No. 116–252, at 22 (citing Stern v. Marshall, 564 U.S. 462, 491 (2011)); 17 U.S.C. 1508(a). 17 Further, when parties elect to use the CCB’s streamlined provisions for ‘‘smaller claims,’’ discussed below, total monetary damages are capped at $5,000 total damages. 17 U.S.C. 1506(z). 18 Id. at 1504(e)(1)(A)(ii)(I). 19 Id. at 1504(e)(1)(A)(ii)(III). 20 Id. at 1506(y)(2). 21 Id. at 1504(e)(1)(D). 22 Id. at 1506(y)(2). ‘‘In extraordinary circumstances,’’ the CCB can award costs and attorneys’ fees over these limits, but only ‘‘where a party has demonstrated a pattern or practice of bad faith conduct’’ and ‘‘in the interests of justice.’’ Id. at 1506(y)(2)(B). 23 Id. at 1506(y)(2). 24 Id. at 1506(v)(2), (y)(2). VerDate Sep<11>2014 16:46 Mar 25, 2021 Jkt 253001 Second, while the CCB cannot issue injunctive relief, it can require that an infringing party cease or mitigate its infringing activity, but only in the event such party agrees and that agreement is reflected in the proceeding’s record.25 The CCB will be comprised of three Copyright Claims Officers and supported by at least two Copyright Claims Attorneys and additional support staff.26 One Officer must have ‘‘substantial familiarity with copyright law and experience in the field of alternative dispute resolution.’’ 27 The other two Officers must possess ‘‘substantial experience in the evaluation, litigation, or adjudication of copyright infringement claims’’ and together must have ‘‘represented or presided over a diversity of copyright interests, including those of both owners and users of copyrighted works.’’ 28 These provisions are intended to ensure that the CCB is comprised of copyright experts, while ‘‘ensur[ing] a balanced system sensitive to both sides of infringement claims’’ and ‘‘undertak[ing] a holistic analysis of infringement claims with an eye toward the resourceful resolution of disputes.’’ 29 The Officers’ duties include ensuring that claims, counterclaims, and defenses are properly asserted, managing CCB proceedings and issuing rulings, requesting production of information and relevant documents, conducting hearings and conferences, facilitating settlements, maintaining records, providing public information, and ultimately rendering determinations and awarding monetary relief.30 Copyright Claims Attorneys will assist the Officers in the administration of their duties and assist the public with understanding the CCB’s procedures and requirements.31 After a determination is rendered, the CCB may reconsider it for clear error of law or fact, and parties may subsequently seek review from the Register of Copyrights to determine whether the Board abused its discretion in denying reconsideration.32 The CCB’s determinations may also be reviewed by a district court ‘‘on limited but wellestablished grounds that parallel Section 10 of the Federal Arbitration Act’’; that is, in the event of fraud, 25 Id. at 1504(e)(2)(A)(i), (e)(2)(B). This provision also applies to parties making knowing material misrepresentations under section 512(f). Id. at 1504(e)(2)(A)(ii). 26 Id. at 1502(b). 27 Id. at 1502(b)(3)(iii). 28 Id. at 1502(b)(3)(ii). 29 Small Claims Report at 100–101. 30 17 U.S.C. 1503(a), 1506. 31 Id. at 1503(a). 32 Id. at 1506(w), (x). PO 00000 Frm 00073 Fmt 4702 Sfmt 4702 16157 corruption, misrepresentation, or misconduct, or if the CCB exceeded its authority or failed to render a final determination concerning the subject matter.33 In addition, in the event of a default determination, a district court may vacate, modify, or correct the determination if it is established that the default or failure to prosecute was due to excusable neglect.34 Congress directed the CCB to begin operations by December 27, 2021; the Register of Copyrights may, for good cause, extend that deadline by not more than 180 days.35 The Officers must be appointed by the Librarian of Congress, after consultation with the Register,36 and the Office must hire other staff, promulgate necessary regulations, and establish related procedures, public materials, and forms. It must operationalize its administration of the various services provided by the CCB and other units of the Office, such as filings, payment administration, and mail processing. Because information technology development is centralized at the Library of Congress, the Library’s Office of the Chief Information Officer (‘‘OCIO’’) must also identify and deploy any necessary IT resources for the CCB, such as virtual hearing platforms and a case management system. Congress vested the Office with broad regulatory authority to carry out the statute,37 and specified that the Register shall ‘‘provide for the efficient administration of the Copyright Claims Board, and for the ability of the Copyright Claims Board to timely complete proceedings instituted under this chapter, including by implementing mechanisms to prevent harassing or improper use of the Copyright Claims Board by any party.’’ 38 Together, the statute and legislative history make clear that Congress intended for the Office to implement regulations in a manner that ‘‘furthers the goals of the Copyright Claims Board’’ 39 and establishes an ‘‘efficient, effective, and voluntary’’ forum for parties to resolve their disputes.40 33 17 U.S.C. 1508(c); H.R. Rep. No. 116–252, at 22; see 9 U.S.C. 10(a) (under the Federal Arbitration Act, arbitral awards may be vacated for corruption, fraud, undue means, evident partiality, misconduct, or exceeding the powers delegated to the arbitrators). 34 17 U.S.C. 1506(c)(1). 35 Public Law 116–260, sec. 212(d), 134 Stat. at 2199. 36 17 U.S.C. 1502(b)(1). 37 Id. at 1510(a)(1). 38 Id. 39 Id. at 1510(a)(2)(A). 40 H.R. Rep. No. 116–252, at 23. E:\FR\FM\26MRP1.SGM 26MRP1 16158 Federal Register / Vol. 86, No. 57 / Friday, March 26, 2021 / Proposed Rules B. Overview of the Rulemaking Process To establish necessary and appropriate regulations to govern the CCB, the Office seeks public comment on the subjects discussed below. The Office is issuing this notification of inquiry as the first step in promulgating the regulations required by the statute. The Office plans to subsequently publish multiple notices of proposed rulemaking, each focusing on one or more of the regulatory categories discussed below. The Office has concluded that this approach will help to efficiently and thoughtfully conduct the relevant regulatory proceedings in light of the scope of the statute and the Office’s available resources. To aid the Office’s review, it is requested that if a submission responds to more than one of the below categories, it be divided into discrete sections with headings clearly indicating the category being discussed in each section. Comments addressing a single category should also have a heading that clearly indicates which category is being discussed. The Office also notes that it tentatively expects to produce a CCB practice guide, which will not be a substitute for existing statutes, regulations, or case law, but will provide parties, potential parties, and the public at large with basic information concerning the CCB and its procedures. The Office has already established a web page describing the CCB, which will be frequently updated as implementation work proceeds.41 The Office encourages parties to file joint comments on issues of common agreement.42 The Office will also consider holding informal meetings to gather additional information on discrete issues prior to publishing notices of proposed rulemaking, establishing guidelines for ex parte communications. Relevant guidelines will be issued at https:// www.copyright.gov/rulemaking/caseact-implementation/, and will be similar to those imposed in other Office proceedings.43 Any such khammond on DSKJM1Z7X2PROD with PROPOSALS 41 Copyright Small Claims and the Copyright Claims Board, https://copyright.gov/about/smallclaims (last visited Mar. 21, 2021). 42 See, e.g., NCTA—The internet & Tele. Ass’n & Motion Picture Ass’n Ex Parte Letter (May 20, 2020), https://www.copyright.gov/rulemaking/ section111/ncta-mpa.pdf (regarding regulations governing cable operators’ reporting practices under 17 U.S.C. 111); Joint Comments of Nat’l Music Pubs.’ Ass’n & Dig. Media Ass’n Submitted in Response to Copyright Royalty Board’s November 5, 2018, Notification of Inquiry (Dec. 10, 2018) (regarding regulations relating to the MMA’s enactment). 43 See, e.g., 83 FR 65747, 65753–54 (Dec. 21, 2018) (identifying guidelines for ex parte communications in MLC and DLC designation VerDate Sep<11>2014 16:46 Mar 25, 2021 Jkt 253001 communications will be on the record to ensure the greatest possible transparency, and will supplement, not substitute for, the written record. While all public comments are welcome, the Office encourages parties to provide specific proposed regulatory language for the Office to consider and for others to comment upon. Similarly, it would be helpful for commenters replying to proposed language to offer alternate language for consideration. Commenters are reminded that while the Office has regulatory authority to implement the statute, it is constrained by the law Congress enacted; the Office can fill statutory gaps, but will not entertain proposals that conflict with the statute.44 II. Subjects of Inquiry A. Initiating CCB Proceedings, Notice, and Service of Notice and Claim As the legislative history explains, the CCB is designed ‘‘to meet the Due Process Clause’s guarantee of fundamental fairness in a federal proceeding,’’ 45 including through mechanisms providing for service of notice and claims and waiver of service provisions modeled after the Federal Rules of Civil Procedure’s (‘‘FRCP’s’’) Rule 4.46 In many cases, service of the notice may be the respondent’s introduction to the nature of the dispute and to the option to have the dispute resolved by the CCB. As discussed below, for a claim to become an active proceeding, it must go through multiple procedural safeguards, including an initial claim review by a CCB attorney and service of multiple notices to the respondent, with the corresponding opportunity to opt out of the proceedings. The statute provides that a claim must first be reviewed by a CCB attorney for sufficiency under the statute and any proceeding); 82 FR 49550, 49563 (Oct. 26, 2017) (identifying guidelines for ex parte communications in the Office’s ‘‘Section 1201’’ rulemaking); see also, Ex Parte Communications,https:// www.copyright.gov/rulemaking/mma-designations/ ex-parte-communications.html (last visited Mar. 21, 2021) (ex parte guidelines for MLC and DLC designation rulemaking); Ex Parte Communications, https://www.copyright.gov/1201/2018/ex-partecommunications.html (last visited Mar. 21, 2021) (ex parte guidelines for Seventh Triennial Section 1201 Proceeding, 2018). 44 See, e.g., Nat’l Cable & Telecomms. Ass’n v. Brand X internet Servs., 545 U.S. 967, 980 (2005) (‘‘[A]mbiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion.’’) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865–66 (1984)). 45 H.R. Rep. No. 116–252 at 22. 46 Id. (providing additional mechanisms, such as the ability to participate in hearings virtually). PO 00000 Frm 00074 Fmt 4702 Sfmt 4702 relevant regulations before the claim and notice of service is served upon a respondent.47 If the claim is reviewed and found to be noncompliant, the CCB will send the claimant a notice of noncompliance and the claimant can amend the claim within thirty days of receiving the notice, without paying an additional fee.48 If the claim remains noncompliant after the amended version is refiled, the claimant can amend it again within an additional thirty-day period after receiving the CCB’s second notice of noncompliance.49 If the claimant does not file a compliant claim or misses either thirty-day refiling period, the claim will be dismissed without prejudice.50 These rules equally apply to counterclaims.51 Once approved by the CCB, the claim must be served on the respondent and proof of service must be filed within ninety days of such approval ‘‘using a standardized process and notice format established by the Register.’’ 52 1. Content of Initial Notice To ensure that respondents are provided with proper notice of the claims asserted against them, along with information enabling a non-represented party to understand what the CCB is, and the process required to elect to participate or decline to do so, the statute details certain elements that must be included in the initial notice accompanying the claim. In addition, the Office is required to create a prescribed notice form and is vested with regulatory authority to specify further requirements to be included. At a minimum, the served notice must meet several requirements prescribed by statue. The notice must be in a form that describes the CCB and the nature of a CCB proceeding.53 In addition, the notice must include ‘‘a clear and prominent explanation of the respondent’s right to opt out of the proceeding and the rights the 47 17 U.S.C. 1506(f)(1); H.R. Rep. No. 116–252, at 22. 48 17 U.S.C. 1506(f)(1)(B). 49 Id. 50 Id. 51 Id. at 1506(f)(2). Further, claims against online service providers for infringement via storage of, referral, or linking to infringing material that may be subject to 17 U.S.C. 512(b)–(d)’s limitations on liability must contain an additional claimant affirmation. The claimant must affirm that they previously notified the service provider of the claimed infringement and the service provider failed to remove or disable access to the material expeditiously, in accordance with the applicable section of 17 U.S.C. 512, or the claim will be dismissed without prejudice. Id. at 1506(f)(1)(C)(i). 52 H.R. Rep. No. 116–252, at 31; 17 U.S.C. 1506(g). 53 17 U.S.C. 1506(g)(1). E:\FR\FM\26MRP1.SGM 26MRP1 Federal Register / Vol. 86, No. 57 / Friday, March 26, 2021 / Proposed Rules respondent waives if it does not.’’ 54 In particular, it must include a prominent statement that by not opting out of a CCB proceeding within sixty days of receiving the notice, the respondent ‘‘loses the opportunity to have the dispute decided by a court created under article III of the Constitution of the United States’’ and ‘‘waives the right to a jury trial regarding the dispute.’’ 55 The Office now solicits comment regarding additional regulatory requirements to help ensure that the initial notice conveys a clear explanation of the CCB, deadlines associated with the pending claim, the ability and method for the respondent to opt out of the proceeding, and the benefits and consequences of participating or declining to do so. For example, FRCP 4, which prescribes the contents of a summons, requires a summons to name the court and parties, be addressed to the defendant, provide contact information for the plaintiff, state the time a defendant must appear, notify the defendant that failure to appear will result in a default judgment, and be signed by the clerk and bear the court’s seal.56 The Office solicits comments regarding whether analogous requirements would be appropriate for a notice to a CCB respondent. The Office notes that a variety of federal and state courts provide templates for summonses, which are succinct documents of two to three pages. For example, the Central District of California provides a fillable PDF that can be digitally signed by the process server; typical for federal court, it references the relevant rules of civil procedure but does not provide explanatory information.57 Cook County, Illinois provides a similar form for state proceedings, but its form includes additional explanatory language as well as a list of hotlines to call for more information.58 It begins: khammond on DSKJM1Z7X2PROD with PROPOSALS You have been named a defendant in the complaint in this case, a copy of which is hereto attached. You are summoned and required to file your appearance, in the office of the clerk of this court, within 30 days after service of this summons, not counting the day of service. If you fail to do so, a judgment by default may be entered against you for the relief assked in the complaint. THERE WILL BE A FEE TO FILE YOUR APPEARANCE. To 54 H.R. Rep. No. 116–252, at 22; 17 U.S.C. 1506(g)(1). 55 17 U.S.C. 1506(g)(1). 56 Fed. R. Civ. P. 4(a)(1). 57 Admin. Off. of the U.S. Cts., Summons in a Civil Action (June 2012) https://www.uscourts.gov/ sites/default/files/ao440.pdf (form AO 440). 58 Clerk for the Circuit Court of Cook County, Summons (Dec. 2020), https:// www.cookcountyclerkofcourt.org/Forms/pdf_files/ CCG0001.pdf (form CCG 0001 A). VerDate Sep<11>2014 16:46 Mar 25, 2021 Jkt 253001 file your written appearance/answer YOU DO NOT NEED TO COME TO THE COURTHOUSE. Further tailored to pro se participants, the form for a small claims summons provided by the Superior Court of New Jersey small claims division, provides stark warnings to respondents and explains the small claims process.59 It reads: YOU ARE BEING SUED! IF YOU WANT THE COURT TO HEAR YOUR SIDE OF THIS CASE, YOU MUST APPEAR IN COURT. IF YOU DO NOT, THE COURT MAY RULE AGAINST YOU. READ ALL OF THIS PAGE AND THE NEXT PAGE FOR DETAILS. In the attached complaint, the person suing you (who is called the plaintiff) briefly tells the court his or her version of the facts of the case and how much money he or she claims you owe. You are cautioned that if you do not come to court on the trial date to answer the complaint, you may lose the case automatically, and the court may give the plaintiff what the plaintiff is asking for, plus interest and court costs. The summons is offered in Spanish as well as English.60 Because a CCB attorney must review the claim for sufficiency before a claimant is allowed to proceed with service upon the respondent, the Office is tentatively inclined to require the inclusion of a docket number assigned by the CCB on the notice as well as the claim. The docket number (or similar unique identifier) could be used by the respondent to access information regarding the proceeding, including how to opt out of a proceeding. The Office queries whether additional data beyond inclusion of the docket number (with ability to verify the proceeding on a CCB website or case management system) should be required to provide indicia that the notice relates to an official government proceeding. In addition, because the CCB is designed to be accessible to participants who are not represented by attorneys, the Office is tentatively planning to require links to the Office’s public information about the CCB to be included on the notice.61 The Office solicits comments on specific educational information that may be helpful to include, while being mindful that the notice must remain easy to understand and avoid overwhelming respondents. For example, should the notice provide information describing 59 New Jersey Courts, Small Claims Summons and Return of Service (Sept. 2018), https:// njcourts.gov/forms/10534_appendix_xi_a2.pdf. 60 Id. 61 Copyright Small Claims and the Copyright Claims Board, https://copyright.gov/about/smallclaims (last visited Mar. 21, 2021). PO 00000 Frm 00075 Fmt 4702 Sfmt 4702 16159 copyright or copyright infringement, as well as potential defenses that may be available to a respondent, such as fair use? The Office seeks comments on each specific field of information that claimants should be required to include in the notice. In addition, the Office is considering the content of the prescribed notice form, and welcomes public input. In responding, parties are encouraged to provide specific suggestions for language to be included on the form to describe the CCB and the decision facing the respondent, including by submitting sample notice forms if they desire. 2. CCB Respondent Notifications (Second Notice) In addition to the initial notice sent by the claimant, the statute requires that the Register promulgate regulations ‘‘providing for a written notification to be sent by, or on behalf of, the Copyright Claims Board to notify the respondent of a pending proceeding.’’ 62 Similar to the initial notice, this notice must ‘‘include information concerning the respondent’s right to opt out of the proceeding, the consequences of opting out and not opting out, and a prominent statement that, by not opting out within 60 days after the date of service . . . the respondent loses the opportunity to have the dispute decided by a court created under article III of the Constitution of the United States’’ and ‘‘waives the right to a jury trial regarding the dispute.’’ 63 This notice supplements the initial notice served by the claimant and is intended to facilitate understanding of the official nature of the documents and proceeding, encourage a respondent to review the materials, and overall, increase the likelihood that a respondent engages with the asserted claim and knowingly elects to proceed or opt out of the CCB proceeding. The Office seeks public input on any issues that should be considered relating to the second notice, including but not limited to its content and how to ensure that recipients understand that it is an official Federal Government notification. The Office also invites suggestions regarding the format and procedure for sending the second notice, considering that Congress allows such notices to be sent ‘‘by, or on behalf of’’ the CCB. For example, should the Office create the notice and post it on the proceeding’s docket for the claimant to download and deliver to the respondent? Should the Office require it 62 17 63 Id. E:\FR\FM\26MRP1.SGM U.S.C. 1506(h). at 1506(h)(1). 26MRP1 16160 Federal Register / Vol. 86, No. 57 / Friday, March 26, 2021 / Proposed Rules to be delivered in hard copy or by email, and how should delivery be documented? Given the small dollar value nature of the claims, and similar standards for federal court, the Office is not inclined to require physical delivery by a method other than the U.S. Postal Service. Similarly, if the CCB itself is responsible for serving the second notice, rather than generating and providing the notice to the claimant who would make service on the CCB’s ‘‘behalf,’’ this would require additional Office operational resources. 3. Service of Process and Designated Agents khammond on DSKJM1Z7X2PROD with PROPOSALS After a CCB attorney has reviewed a claim and found it suitable to proceed, a claimant must serve notice of the proceeding and a copy of the claim on the respondent either via personal service or pursuant to waiver of personal service.64 Personal service may be effected by someone who is both ‘‘not a party to the proceeding and is older than 18 years of age’’ 65 and both service and waiver of service may only occur within the United States.66 Proof of service must be filed with the CCB within ninety days after the CCB determines that the claim is suitable for resolution.67 The statute includes separate rules of service for individuals and corporations, partnerships, and unincorporated associations, including those organizations using designated service agents. No claims can be brought ‘‘by or against a Federal or State governmental entity.’’ 68 Service on an individual 69 may be accomplished by using procedures analogous to those in the FRCP.70 Service can be accomplished by ‘‘complying with State law for serving a summons in an action brought in courts of general jurisdiction in the State where service is made.’’ 71 Service can also be accomplished by ‘‘leaving a copy of the notice and claim at the individual’s dwelling or usual place of abode with someone of suitable age and 64 Id. at 1506(g). The copy of the claim served must be the same as the claim that was filed with the CCB. Id. at 1506(g)(2). 65 Id. at 1506(g)(3). 66 Id. at 1506(g)(9); H.R. Rep. No. 116–252, at 32. 67 17 U.S.C. 1506(g). 68 Id. at 1504(d)(3). The Office invites commenters to address whether the phrase ‘‘Federal or state Governmental entity’’ will be clearly understood by potential claimants. 69 For a minor or an incompetent individual, service can only be effected by ‘‘complying with State law for serving a summons or like process on such an individual in an action brought in the courts of general jurisdiction of the State where service is made.’’ 17 U.S.C. 1506(g)(4), (8). 70 See Fed. R. Civ. P. 4(e). 71 17 U.S.C. 1506(g)(4)(A). VerDate Sep<11>2014 16:46 Mar 25, 2021 Jkt 253001 discretion who resides there.’’ 72 Finally, service on an individual can be accomplished by ‘‘delivering a copy of the notice and claim to an agent designated by the respondent to receive service of process or, if not so designated, an agent authorized by appointment or by law to receive service of process.’’ 73 Like individuals, corporations, partnerships, or unincorporated associations can be served ‘‘by complying with State law for serving a summons in an action brought in courts of general jurisdiction in the State where service is made.’’ 74 These organizations can also be served by delivering the notice and claim to ‘‘an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process in an action brought in courts of general jurisdiction in the State where service is made.’’ 75 Under the statute, such corporations, partnerships, or unincorporated associations may elect to receive CCB claim notices via a designated service agent.76 The Office is required to establish regulations governing this designated service agent option and to ‘‘maintain a current directory of service agents that is available to the public for inspection, including through the internet.’’ 77 The Office may charge these organizations a fee to maintain the designated service agent directory.78 When commenting on aspects related to the CCB’s service agent directory, parties may want to review the Office’s existing designated agent directory for online service providers, created pursuant to the Digital Millennium Copyright Act (‘‘DMCA’’).79 Under the DMCA, the Office has promulgated regulations setting forth requirements for service providers to designate agents to receive notifications of claimed infringement,80 and maintains a centralized online directory of those agents.81 The directory allows the public to search by service provider and view both current and historical designated agent information, and is populated automatically with 72 Id. at 1506(g)(4)(C). at 1506(g)(4)(D). 74 Id. at 1506(g)(5)(A)(i). 75 Id. at 1506(g)(5)(A)(ii). If the service agent is ‘‘one authorized by statute and the statute so requires,’’ the claimant must also mail a copy of the notice and claim to the respondent. Id. 76 Id. at 1506(g)(5)(B). 77 Id. 78 Id. 79 See id. at 512(c)(2). 80 37 CFR 201.38. 81 DMCA Designated Agent Directory, https:// copyright.gov/dmca-directory (last visited Mar. 21, 2021). information supplied by service providers through the Office’s online system.82 To designate an agent in that system, a service provider must supply its full legal name, physical street address, any alternate names used by the service provider, and the name, organization, physical mail address, telephone number, and email address of its designated agent. The registration process costs $6 per designation and must be renewed every three years. Commenters are encouraged to discuss whether and to what extent the Office should look to its DMCA designated agent regulations with respect to implementing the statute’s service agent directory. The Office is interested in comments on whether and how a corporate parent should identify its progeny and how to make the database easy to update, search, and use. Further, and as noted in the section on fees below, the Office requests parties’ comments on the appropriate fee to ‘‘cover the costs of maintaining the directory.’’ 83 The statute also allows a respondent to waive personal service by returning a signed form to the CCB. The claimant must provide this form to the respondent ‘‘by first class mail or by other reasonable means’’ and return of the form must be at no cost to the respondent.84 The claimant’s waiver request must be in writing, include a notice of the proceeding and a copy of the claim, state the date the request was sent, and provide the respondent thirty days to respond.85 The personal service waiver does not constitute a waiver of the respondent’s right to opt out of the proceeding.86 The Office may establish additional regulations governing commencing proceedings, personal service, and the personal service waiver request.87 The statute requires the Office to enact regulations for service of any documents submitted or relied upon in a CCB proceeding, other than the notice of the proceeding and the copy of the claim.88 The Office seeks public input on any issues that should be considered relating to the CCB’s service requirements, including but not limited to waiver and the service of documents 73 Id. PO 00000 Frm 00076 Fmt 4702 Sfmt 4702 82 From a user experience perspective, commenters may also wish to access the Office’s searchable database of Pre-1972 Sound Recordings. Schedules of Pre-1972 Sound Recordings, https:// www.copyright.gov/music-modernization/pre1972soundrecordings/search-soundrecordings.html (last visited Mar. 21, 2021). 83 17 U.S.C. 1506(g)(5)(B). 84 Id. at 1506(g)(6). 85 Id. at 1506(g)(6)(A)–(B). 86 Id. at 1506(g)(7)(A). 87 Id. at 1506(e), (g), (g)(6). 88 Id. at 1506(j). E:\FR\FM\26MRP1.SGM 26MRP1 Federal Register / Vol. 86, No. 57 / Friday, March 26, 2021 / Proposed Rules other than the initial notice and claim. To facilitate efficiency of communication with respect to claims brought by parties outside the United States, the Office inquires whether foreign claimants should be required to designate a domestic service agent and to provide such information to respondents. khammond on DSKJM1Z7X2PROD with PROPOSALS B. Opt-Out Provisions Generally, respondents who do not wish to have a claim heard by the CCB can opt out of proceedings on a case-bycase basis. The statute includes two additional opt-out provisions: a blanket opt-out for libraries and archives who do not wish to participate in any CCB proceedings and a separate opt-out for parties who receive notice that they are class members in a pending class action involving the same transaction or occurrence as the CCB proceeding. The Office is directed to establish regulations to govern these opt-out actions.89 1. Respondent’s Opt-Out As outlined above, after being properly served, respondents may opt out of a CCB proceeding by providing written notice to the CCB within sixty days of the date of service, although the CCB can extend that 60-day period in the interests of justice.90 If a respondent does not opt out in a timely manner, the proceeding will become active and the respondent will be bound by the CCB’s determination as provided for in section 1507(a).91 If the respondent does opt out, the proceeding will be dismissed without prejudice.92 The Office seeks public input on any issues that should be considered relating to the respondent’s written opt-out notice, including the content of a notice and the methods that a respondent may use to execute that notice (e.g., paper or electronic). In addition, the Office solicits comments regarding whether it should create a publicly accessible list of entities or individuals who have opted out of using the CCB in prior proceedings, as well as any other considerations relevant to whether the CCB should reflect a system to recognize entities or individuals that wish to consistently opt out of CCB proceedings. On the one hand, Congress did not establish a blanket opt-out for any entities other than libraries and archives, and in that case, it did so expressly by statute. This suggests that 89 Id. at 1506(aa)(1), 1507(b)(2)(A). 90 Id. at 1506(i). 91 Id. 92 Id. VerDate Sep<11>2014 16:46 Mar 25, 2021 Jkt 253001 the Office lacks authority to adopt other blanket opt-outs by regulation.93 On the other hand, the Office understands that entities intending to consistently opt out may appreciate efficiency or at least a way to publicize their intentions, and that potential copyright owner claimants may also wish to avoid incurring filing fees as a result of serving claims upon entities who consistently opt out. 2. Library and Archives Opt-Outs The statute requires the Office to promulgate regulations for libraries and archives to ‘‘set forth procedures for preemptively opting out of proceedings before the Copyright Claims Board’’ and ‘‘compile and maintain a publicly available list of the libraries and archives that have successfully opted out.’’ 94 For purposes of this provision, ‘‘the terms ‘library’ and ‘archives’ mean any library or archives, respectively, that qualifies for the limitations on exclusive rights under [17 U.S.C.] 108.’’ 95 Office regulations cannot require a library or archives to pay a fee to opt out of a CCB proceeding or require renewal of the opt-out decision.96 The Office seeks public input on any issues that should be considered relating to the library and archives optout regulations, including whether a library or archive should be required to prove or certify its qualification for the limitations on exclusive rights under 17 U.S.C. 108, and thus for the blanket optout provision, and how to address circumstances where a library or archives ceases qualifying. In particular, given the prevalence of libraries and archives being located within larger entities, including but not limited to colleges and universities or municipalities, the Office invites suggestions addressing which entities, principals, or agents may opt out on behalf of a library or archive, as well as any associated certifications. The Office also seeks input related to transparency and functionality considerations with respect to its publication of the list of libraries and archives that have opted out. Finally, the Office is interested in whether it should include a regulatory provision that specifies that this opt out extends to employees operating in the course of their employment. 93 See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107 (2012); see also Lindh v. Murphy, 521 U.S. 320, 330 (1997) (describing ‘‘negative implications raised by disparate provisions’’). 94 17 U.S.C. 1506(aa)(2). 95 Id. at 1506(aa)(4). 96 Id. at 1506(aa)(3). PO 00000 Frm 00077 Fmt 4702 Sfmt 4702 16161 3. Class Action Opt-Outs Any party to an active proceeding before the CCB who receives notice of a pending class action arising out of the same transaction or occurrence as the proceeding before the CCB, in which the party is a class member, shall either seek to dismiss the CCB proceeding or opt out of the class action proceeding, ‘‘in accordance with regulations established by the Register of Copyrights.’’ 97 The Office seeks public input on any issues that should be considered relating to regulations governing dismissal or opt-outs related to class action proceedings, including specific proposed regulatory language. C. Additional CCB Practice and Procedures The Office also requests comment on specific practice and procedural issues: Discovery, defaults, certifications for the various filings made by participants, and procedures for ‘‘smaller claims.’’ As noted, the statute provides the Office with broad flexibility to regulate CCB proceedings.98 In this regard, the Office heeds Congress’s observation that ‘‘[w]hile principles of federal procedure are relevant to the CASE Act, the Act is not intended to simply mimic federal practice’’ and that the Office should ‘‘tak[e] advantage of the grant of regulatory authority to create rules and procedures most appropriate to create an efficient dispute resolution forum that also affords due process protections.’’ 99 In addition to those specific areas, the Office welcomes comment on other CCB practices and procedures. 1. Discovery The statute allows for limited discovery in CCB proceedings. Discovery may include ‘‘the production of relevant information and documents, written interrogatories, and written requests for admission,’’ as established by Office regulations.100 If a party makes a request for additional, limited discovery and has demonstrated good cause for that request, the CCB ‘‘may approve additional relevant discovery, on a limited basis, in particular matters, and may request specific information and documents from participants in the proceeding and voluntary submissions from nonparticipants, consistent with the interests of justice.’’ 101 If a party does not ‘‘timely provide discovery materials in response to a proper request 97 Id. at 1507(b)(2). at 1506(a)(1), 1510(a)(1). 99 H.R. Rep. No. 116–252, at 23. 100 17 U.S.C. 1506(n). 101 Id. at 1506(n)(1). 98 Id. E:\FR\FM\26MRP1.SGM 26MRP1 16162 Federal Register / Vol. 86, No. 57 / Friday, March 26, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS for materials that could be relevant to [disputed] facts’’ after being provided notice and an opportunity to respond and upon good cause shown, the CCB may ‘‘apply an adverse inference with respect to disputed facts’’ against that party.102 Congress limited discovery in CCB proceedings to ‘‘ensure that the proceedings are streamlined and efficient.’’ 103 As described by the Office’s Copyright Small Claims report, discovery in the federal courts is the ‘‘primary reason for the length of federal court litigation’’ and is associated with ‘‘often substantial costs and potential for abuse by exploitative litigants.’’ 104 While some discovery may often be necessary in a CCB proceeding, the Office is mindful that additional discovery could compromise the value and efficiency gained by using the CCB, in lieu of using the federal courts. The Office further notes that some state small claims systems adopt presumptions against any discovery at all.105 The Office seeks public input on any issues that should be considered relating to discovery in CCB proceedings, including but not limited to a limit on the number of interrogatories and requests for admission allowed without leave, what constitutes ‘‘good cause’’ to request additional information, standards for determining when information is confidential, and which provisions of FRCP Rule 26 should or should not be imported or adapted into the CCB’s regulations. For example, are there circumstances where a Rule 26(f) conference is appropriate, and if so, should the Office require the use of a specific template that sets out proposed deadlines and allows parties to fill in blanks? In cases where discovery extends to production of electronically stored information (‘‘ESI’’), should the CCB create rules specifically relating to ESI? In responding, commenters are encouraged to direct the Office to any practices or model rules of specific jurisdictions, and describe how their functioning may be worth emulating or avoiding. 2. Protective Orders Any documents or testimony that contain confidential information can be subject to a protective order issued by 102 Id. at 1506(n)(3). Rep. No. 116–252, at 17. 104 Small Claims Report at 13. 105 See, e.g., Commonwealth of Massachusetts, Trial Court of the Commonwealth, Small Claims Standards sec. 5:02, (Nov. 2001), https:// www.mass.gov/doc/small-claims-standards/ download (‘‘Discovery is not routinely available’’). 103 H.R. VerDate Sep<11>2014 16:46 Mar 25, 2021 Jkt 253001 the CCB, upon the request of a party and for good cause shown.106 In considering issues related to discovery, commenters are encouraged to address to the CCB’s handling of confidential information (including the redacting of such information) and the issuance of protective orders. For example, should the CCB adopt a default model protective order that the parties can enter into, with appropriate adaptations as needed? In addressing this topic, commenters may wish to review the Copyright Royalty Board’s confidentiality and redaction regulations and recent protective orders,107 or provide the Office with model rules from jurisdictions that may prove useful. 3. Respondent’s Default and Claimant’s Failure To Prosecute Where a proceeding becomes ‘‘active,’’ i.e., the respondent has not timely opted out of the CCB process, and the respondent ‘‘has failed to appear or has ceased participating in the proceeding,’’ the CCB may enter a default determination.108 To obtain a default determination, the claimant must ‘‘submit relevant evidence and other information in support of the claimant’s claim and any asserted damages.’’ 109 The CCB must then evaluate this evidence, including any other requested submissions, and determine if those materials are sufficient to support a finding in the claimant’s favor and, if so, any appropriate relief and damages.110 If the CCB determines that a default judgment is proper, it must prepare a default determination and provide a written notice to all the respondent’s addresses reflected in the CCB’s proceeding records, including email addresses, giving the respondent thirty days to submit an opposition to the proposed default determination.111 If the respondent timely responds to the CCB’s notice, the CCB must consider the response when issuing its determination, which is then not 106 17 U.S.C. 1506(n)(2). 107 See, e.g., 37 CFR 303.5(k) (rules governing exclusion or redaction of personally identifiable information); Protective Order, Determination of Rates and Terms for Digital Performance of Sound Recordings and Making of Ephemeral Copies to Facilitate Performances (Web V), No. 19–CRB– 0005–WR (2021–2025) (June 24, 2019), https:// app.crb.gov/document/download/4012. 108 17 U.S.C. 1506(u) (The respondent’s failure to appear or participate ‘‘can be demonstrated by the respondent’s failure, without justifiable cause, to meet 1 or more deadlines or requirements set forth in the [CCB’s proceeding] schedule.’’). 109 Id. at 1506(u)(1). 110 Id. 111 Id. at 1506(u)(2). PO 00000 Frm 00078 Fmt 4702 Sfmt 4702 considered a ‘‘default.’’ 112 If the respondent does not respond to the notice, the CCB ‘‘shall proceed to issue the default determination as a final determination,’’ although the CCB ‘‘may, in the interests of justice, vacate the default determination.’’ 113 A federal court can also vacate the default determination ‘‘if it is established that the default . . . was due to excusable neglect.’’ 114 As Congress made clear, the statute ‘‘establishes a strong presumption against default judgments’’ and provides greater protections against default than in the federal courts.115 The statute also gives the Office the authority to supplement the statutory default rules by establishing additional requirements that must be met before the CCB can enter a default determination.116 The Office seeks public input on any issues that should be considered relating to a respondent’s default, including but not limited to regulations regarding proof of damages in a default proceeding.117 The statute also contains rules regarding a claimant’s failure to complete service and failure to prosecute. If a claimant does not complete service on a respondent within ninety days of the CCB approving the claim, the CCB will dismiss the proceeding without prejudice.118 After a proceeding becomes active, if a claimant fails to meet one or more deadlines or requirements set forth in the CCB’s schedule without justifiable cause, the CCB may dismiss the claimant’s claims.119 The CCB must first provide the claimant written notice that it has missed a deadline and a thirty-day period to respond to the notice, and must consider the claimant’s response, if any, before dismissing the claims.120 As noted above, failure to prosecute can constitute bad-faith conduct, potentially subjecting the claimant to pay the respondent’s costs and attorneys’ fees.121 4. Smaller Claims The Office is required to promulgate regulations for a single CCB Officer to hear and resolve ‘‘smaller claims,’’ i.e., claims involving $5,000 or less (exclusive of any attorneys’ fees and 112 Id. at 1506(u)(3). at 1506(u)(4). 114 Id. at 1508(c)(1)(C). 115 H.R. Rep. No. 116–252, at 24. 116 17 U.S.C. 1506(u)(1). 117 See H.R. Rep. No. 116–252, at 24–25. 118 17 U.S.C. 1506(v)(1). 119 Id. at 1506(v)(2). 120 Id. 121 Id. at 1506(v)(2), (y)(2). 113 Id. E:\FR\FM\26MRP1.SGM 26MRP1 Federal Register / Vol. 86, No. 57 / Friday, March 26, 2021 / Proposed Rules costs).122 Congress expects that these smaller claim proceedings will ‘‘otherwise have the procedural protections of any other claim before the Copyright Claims Board,’’ 123 and that a determination issued under the smaller claims provisions will ‘‘have the same effect as a determination issued by the entire Copyright Claims Board.’’ 124 The Office seeks public input on any issues that should be considered relating to smaller claims proceedings, including but not limited to any regulations that will increase the efficiency of the singleOfficer proceeding while retaining the CCB’s standard procedural protections. khammond on DSKJM1Z7X2PROD with PROPOSALS 5. Other Rules of Practice and Procedure; Evidentiary Rules While the discussion above identifies a number of filings and procedures related to the operation of the CCB from initiation of claims through the Board’s rendering of determinations, it is not comprehensive. The Office solicits suggestions, including specific proposals, regarding other procedural rules that would be helpful to the CCB’s goal of establishing an efficient dispute resolution forum while respecting due process protections.125 Because the CCB is designed to be simpler and less formal than federal courts, the Office encourages plain language suggestions and urges commenters to consider what rules are necessary to codify by regulation and in what areas it is advisable for CCB Officers to retain discretion and flexibility. In particular, the Office solicits comment regarding whether to propose adopting additional provisions of the FRCP on areas germane to the CCB’s operations, with potential modifications to simplify them and make them more accessible. For example, commenters may consider addressing rules such as: Serving and filing pleadings and other papers (Rule 5); privacy protections for filings made with the court (Rule 5.2); computing and extending time for motion papers (Rule 6); pleadings allowed (Rule 7); disclosure statement (Rule 7.1); general and special rules of pleadings (Rule 8); form of pleadings (Rule 10); signing pleadings, motions, and other papers; representations to the Court, sanctions (Rule 11); defenses and objections (Rule 12); counterclaim and crossclaim (Rule 13); amended and supplemental pleadings (Rule 15); and 122 Id. at 1506(z). Rep. No. 116–252, at 17. 124 17 U.S.C. 1506(z). 125 See H.R. Rep. No. 116–252, at 23. 123 H.R. VerDate Sep<11>2014 16:46 Mar 25, 2021 Jkt 253001 scheduling and management (Rule 16).126 Beyond the Federal Rules, commenters are strongly encouraged to consider whether other rules or adjudicatory bodies may offer useful models. Most notably, various state court systems operate small claims courts, which may contain helpful language or approaches for the CCB to model.127 Federal courts, too, often have model rules for their districts, including rules tailored to pro se representations. Comparable agency tribunals may also offer useful analogues. For example, the Copyright Royalty Board’s regulations are codified at 37 CFR parts 350 through 355. Several Office regulations also address related issues such as certifications 128 and attestations,129 confidentiality,130 waiver, service of process upon the Office, and production of information by the Office.131 In addition, the U.S. Patent and Trademark Office has promulgated rules governing procedures and practices with respect to operation of the Trademark Trial and Appeals Board as well as the Patent Trial and Appeals Board.132 Like other small claims tribunals, CCB proceedings are not subject to formal rules of evidence.133 The CCB can consider relevant documentary and other nontestimonial evidence as well as relevant testimonial evidence.134 The testimonial evidence must be submitted under penalty of perjury and is normally limited to parties’ and nonexpert witnesses’ statements.135 In exceptional cases, the CCB may permit 126 Fed. R. Civ. P. 5, 5.2, 6, 7, 7.1, 8, 10–13, 15, 16. 127 See, e.g., Superior Court Rules—Small Claims (DC 2017) https://www.dccourts.gov/sites/default/ files/2017-05/Superior%20Court%20Rules%20 of%20Procedure%20for%20the%20 Small%20Claims%20and%20Conciliation%20 Branch.pdf; see also DC Small Claims and Conciliation Branch Handbook, https:// www.dccourts.gov/sites/default/files/matters-docs/ Small_Claims_Handbook_Revised_May_2015.pdf. 128 See, e.g., 37 CFR 201.4(c)(4)–(5) (recordationrelated certifications), 210.10(j) (section 115 cumulative statements of account certification), 210.27(i) (section 115 monthly reports of usage certification for blanket licensees), 210.29(g) (Mechanical Licensing Collective’s section 115 royalty statement certification). 129 See, e.g., id. at §§ 201.4(d)(4) (redaction of personal identifying information), 201.17(e)(14) (statements of account submitted by cable systems), 201.38(c)(2) (DMCA designated agent attestation). 130 Id. at § 210.34. 131 Id. at part 205. 132 See id. at parts 2, 7, 11, 42. 133 17 U.S.C. 1506(o); Small Claims Report at 126; see e.g., District of Columbia Courts, Small Claims Mediation 2 (Sept. 2017), https://www.dccourts.gov/ sites/default/files/Small%20Claims%20 Mediation%2009-17.pdf (the DC small claims mediation program is expressly not subject to the Federal Rules of Evidence). Cf. Fed. R. Evid. (2020). 134 17 U.S.C. 1506(o). 135 Id. at 1506(o)(2). PO 00000 Frm 00079 Fmt 4702 Sfmt 4702 16163 expert witness testimony for good cause.136 In addition to rules of procedure, the Office encourages parties to comment upon issues relevant to evidentiary rules.137 In responding, the Office invites commenters to propose specific regulatory language so that this notification may crystallize areas of agreement and disagreement among the commenting parties. D. Public Access to Records and Proceedings; Certifications; Case Management System Considerations The CCB will make its final determinations available on a publicly accessible website.138 The CCB is also required to certify official records of its proceedings, including for review and confirmation of CCB determinations by a district court.139 Additionally, the Office must establish regulations regarding publication of other CCB determination records and information, ‘‘including the redaction of records to protect confidential information that is the subject of a protective order.’’ 140 To maintain and publish the CCB’s records, the Office has requested that the OCIO provide the CCB with an electronic filing and case management system. The Office intends for this system to provide capabilities comparable to existing case management systems, such as, those operated in existing small claims courts, the Copyright Royalty Board’s eCRB platform, or the federal courts’ case management/electronic case files system, called PACER.141 The system would provide a mechanism to publish CCB orders and determinations and other information, as well as written submissions to the CCB, including claims and responses, on a public-facing website. In addition to specifically soliciting information regarding issuance of protective orders noticed above, the Office seeks public input on other issues relating to the CCB’s provision of access to records and proceedings to the general public, as well as certification of records and determinations. E. Register’s Review of CCB’s Denial of Reconsideration The CCB’s determinations are subject to reconsideration or amendment by the CCB itself, if a party submits a written 136 Id. 137 See, e.g., Fed. R. Evid. (2020). U.S.C. 1506(t)(3). 139 Id. at 1503(a)(1)(I); 1508(b). 140 Id. at 1506(t)(3). 141 See eCRB, https://app.crb.gov/; Public Access to Court Electronic Records, https:// pacer.uscourts.gov/. 138 17 E:\FR\FM\26MRP1.SGM 26MRP1 16164 Federal Register / Vol. 86, No. 57 / Friday, March 26, 2021 / Proposed Rules request within thirty days of the final determination.142 Where the CCB denies a party’s request for reconsideration of a final determination, that party can request that the Register review the determination. Such review ‘‘shall be limited to consideration of whether the Copyright Claims Board abused its discretion in denying reconsideration of the determination.’’ 143 A request must be accompanied by ‘‘a reasonable filing fee,’’ to be established by regulation.144 After other parties have had an opportunity to address the reconsideration request, the Register must either ‘‘deny the request for review, or remand the proceeding to the Copyright Claims Board for reconsideration of issues specified in the remand and for issuance of an amended final determination.’’ 145 The Office seeks public input on any issues relating to the Register’s review, including any potential regulatory provisions addressing the substance of the request, e.g., inclusion of the reasons the party believes the CCB abused its discretion, post-review procedures, and the amount of a reasonable filing fee. khammond on DSKJM1Z7X2PROD with PROPOSALS F. Fees The statute requires the Office to establish multiple fees associated with CCB proceedings. These include fees to commence a CCB proceeding,146 whether before the full CCB or a single Officer, fees to initiate the Register’s review of the CCB’s denial of reconsideration,147 and fees to ‘‘cover the costs’’ associated with maintaining the service agent directory.148 As noted above, there shall be no fee imposed upon libraries or archives filing a blanket opt-out of proceedings with the CCB.149 The statute further states that ‘‘[t]he sum total of . . . filing fees’’ must be ‘‘not less than $100, may not exceed the cost of filing an action in a district court of the United States’’ (currently $400), and ‘‘shall be fixed in amounts that further the goals of the Copyright Claims Board.’’ 150 The Office tentatively interprets these monetary limits as referring to the collective costs associated with fees paid by claimants to initiate proceedings, given the provision’s comparison to costs of filing an action in district court. For example, the Office does not believe a fee 142 17 143 Id. U.S.C. 1506(w). at 1506(x). 144 Id. 145 Id. 146 Id. at 1506(e)(3). at 1506(x). 148 Id. at 1506(g)(5)(B). 149 Id. at 1506(aa)(3). 150 Id. at 1510(c); see H.R. Rep. No. 116–252, at 28 n.1. 147 Id. VerDate Sep<11>2014 16:46 Mar 25, 2021 Jkt 253001 associated with an entity filing a notice of service agent needs to fall under this cap, since it would be paid by a different entity than a claimant and would not be associated with a particular proceeding. The statute’s fee-setting provisions augment the general fee-setting authority provided to the Office in section 708 of the Copyright Act, which authorizes the Register to fix fees for certain services, including CCB services, based on the cost of providing them.151 The Office has previously interpreted this requirement to permit it to ‘‘use fee revenue from some services to offset losses from others for which the fees are kept low to encourage the public to take advantage of the service.’’ 152 As with most of its services, the Office intends to intake fees for the CCB via pay.gov. The Office seeks public input on any issues that should be considered relating to CCB fees, including with respect to the amounts for specific fees. It is also interested in comments evaluating whether fees to commence a proceeding should be staggered to require an initial fee and an additional fee once the proceeding is active (i.e., obligating claimants with proceedings that are likely to proceed to a determination to bear greater costs than claimants where respondents opt out), whether fees for consideration and determination by a single CCB Officer should be lower than fees for standard CCB proceedings, or any other related topics. G. Permissible Number of Cases The Office has the power to limit ‘‘the permitted number of proceedings each year by the same claimant . . . in the interests of justice and the administration of the Copyright Claims Board.’’ 153 As described by Congress, this power ‘‘functions as both a docket management tool . . . and as protection against abusive conduct.’’ 154 The Office expects the CCB to exercise this power, and notes the likelihood that any initial limitation may be revisited after the CCB has established its workflows and can better evaluate its expected workload. The Office seeks public input on any issues that should be considered relating to the initial limitation of the permitted number of proceedings each 151 17 U.S.C. 708(a). Section 708 contains other requirements for setting certain fees, such as a requirement to conduct a fee study for Congress or limitations on fees for filing statements of account in connection with certain statutory licenses that do not appear to apply to CCB fees. 152 Copyright Office Fees, Notice of Proposed Rulemaking, 83 FR 24054, 24055 (May 24, 2018). 153 17 U.S.C. 1504(g). 154 H.R. Rep. No. 116–252, at 31. PO 00000 Frm 00080 Fmt 4702 Sfmt 4702 year by the same claimant in CCB proceedings, including whether the limitation should be based on a claimant’s filings or active claims, other small claims tribunals’ experiences with comparable limitations,155 and how such a limitation may best be designed to prevent abusive conduct while preserving access for good-faith claimants. H. Conduct of Parties and Attorneys The statute has several provisions to preemptively deter frivolous, vexatious, or otherwise improper conduct, including the claim filing fee,156 the ability for the Office to limit the number of claims an entity can bring each year,157 the total monetary recovery limitation,158 and the provision that a notice of a claim may be sent only after being reviewed by the CCB for statutory and regulatory compliance.159 The statute also requires the Office to establish regulations requiring parties to certify that statements made in CCB proceedings are accurate and truthful.160 Further, the statute contains provisions to address bad-faith conduct, including by awarding costs and attorneys’ fees and barring repeat offenders from initiating claims before the CCB for twelve months.161 These provisions demonstrate that Congress went to great lengths to address potential problems concerning bad-faith claimants. The Office is committed to thoughtful implementation of these provisions to deter both bad-faith conduct and misuse of CCB proceedings by those who have a genuine misunderstanding of the law.162 The Office seeks public input on any issues that should be considered relating to parties’ certification requirements and bad-faith conduct, including how the CCB can verify that filings do not contain fraudulent information, procedures for reporting bad-faith conduct, and whether the Office should prohibit attorneys who have been suspended from the practice of law from participating in CCB proceedings. For example, the U.S. Patent and Trademark 155 See, e.g., Cal. Civ. Proc. Code 116.231; Mich. Comp. Laws 600.8407(2). 156 17 U.S.C. 1510(c). 157 Id. at 1504(g). 158 Id. at 1504(e)(1)(D). 159 Id. at 1506(f)(1). 160 Id. at 1506(e)(2), (y)(1). 161 Id. at 1506(y)(2); see also id. at 1510(a)(1) (directing the Office to establish regulation ‘‘implementing mechanisms to prevent harassing or improper use of the Copyright Claims Board by any party’’). 162 The Office is also committed to providing clear, accessible guidance to the public about the CCB’s rules and procedures, outside of its regulations. E:\FR\FM\26MRP1.SGM 26MRP1 Federal Register / Vol. 86, No. 57 / Friday, March 26, 2021 / Proposed Rules Office has adopted various rules with respect to the operation of the Patent Trial and Appeals Board and the Trademark Trial and Appeals Board, as well as for attorneys and entities prosecuting applications before the agency. Those rules address various issues, such as conduct and discipline, duties of candor, fraud prevention, and, if necessary, sanction, suspension, exclusion or censure.163 Commenters are encouraged to suggest other models (including any adopted by state small claims courts), as well as to offer regulatory language tailored to the CCB specifically. I. Other Subjects khammond on DSKJM1Z7X2PROD with PROPOSALS 163 See, e.g., 35 U.S.C. 32 (authorizing the Patent and Trademark Office Director to ‘‘suspend or exclude . . . from further practice . . . any person, agent or attorney shown to be in competent or disreputable’’); 37 CFR 11.19(b) (grounds for disciplining or disqualifying practitioners); see also 37 CFR 1.56, 1.97 and 1.98, 41.128, 42.11 and 42.12; U.S. Patent and Trademark Office, Scam Prevention, https://www.uspto.gov/patents/basics/ using-legal-services/scam-prevention (including general information to the public and a link to a publically available complaint form). 164 17 U.S.C. 1505(d). Before the CCB renders a determination in any infringement dispute, the work at issue must be registered by the Office and the other parties in the proceeding must have an opportunity to address the registration certificate. But the statute allows a party to file a claim with the CCB before the Office has issued a registration, as long as ‘‘a completed application, a deposit, and the required fee for registration’’ have been delivered to the Office. Id. at 1505(a)(1). 165 Id. at 1504(t)(4). 166 Id. at 1504(c). 16:46 Mar 25, 2021 [FR Doc. 2021–06322 Filed 3–25–21; 8:45 am] BILLING CODE 1410–30–P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 38 RIN 2900–AR00 Veterans Legacy Grants Program Jkt 253001 Department of Veterans Affairs. Proposed rule. AGENCY: ACTION: While this notification outlines a variety of issues relevant to implementation of the CCB, the Office welcomes input on any issues not specifically identified that commenters believe are appropriate and within the Office’s regulatory authority. Commenters should be aware that apart from this notification, the Office intends to separately publish a proposed rule regarding a process to expedite a registration decision for an unregistered work at issue before the CCB,164 as well as a conforming technical edit to the Office’s FOIA regulations.165 In some cases, the Office may defer exercising its regulatory authority until a later date. For example, the Office has the authority to limit claims regarding particular classes of works (e.g., musical works, audiovisual works, architectural works, etc.) that the CCB can hear.166 While the Office welcomes any suggestions regarding this authority now, it may delay exercising it until a later date, including potentially after the CCB is operational. VerDate Sep<11>2014 Dated: March 23, 2021. Regan A. Smith, General Counsel and Associate Register of Copyrights. The Department of Veterans Affairs (VA) proposes regulations to establish the Veterans Legacy Grants Program (VLGP). VA would establish grant application procedures and evaluative criteria for determining whether to issue funding to eligible entities to conduct cemetery research and produce VLGP educational materials. Educational materials would relate the histories of Veterans interred in national, State, or Tribal Veterans’ cemeteries and would promote community engagement with those histories. SUMMARY: Comments must be received on or before May 25, 2021. ADDRESSES: Comments may be submitted through www.Regulations.gov or mailed to: Director, Legislative and Regulatory Service (42E), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420. Comments should indicate that they are submitted in response to ‘‘RIN 2900–AR00— Veterans Legacy Grants Program.’’ Comments received will be available at regulations.gov for public viewing, inspection, or copies. FOR FURTHER INFORMATION CONTACT: Bryce Carpenter, Educational Outreach Programs Officer, National Cemetery Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461–5362. (This is not a toll-free telephone number.) DATES: In Public Law 116–107, sec. 1 (Jan. 17, 2020) (codified at 38 U.S.C. 2400 note), Congress authorized VA to establish a grant program to conduct cemetery research and produce educational materials for the VLGP. VA proposes to add new 38 CFR 38.710 through 38.785 to implement this new grant authority. The mission of the National Cemetery Administration (NCA) is to honor SUPPLEMENTARY INFORMATION: PO 00000 Frm 00081 Fmt 4702 Sfmt 4702 16165 Veterans and their eligible family members with final resting places and lasting tributes, thus ensuring that ‘‘No Veteran Ever Dies.’’ In 2016, the Veterans Legacy Program (VLP) was established to support NCA’s mission to ensure ‘‘No Veteran Ever Dies’’ through contract awards to educational entities to conduct cemetery research and produce educational tools for the public to utilize and learn about the histories of Veterans interred in VA national cemeteries, as well as VA grant-funded State and Tribal Veterans’ cemeteries. By engaging educators, students, researchers, and the public, VLP enabled NCA to share the stories of those who served and build an understanding and appreciation of the reasons national cemeteries are considered national shrines. Through contract awards from 2016 to 2020, VLP funded research for 19 projects, which produced more than 573 Veteran biographies, 17 documentary films about Veterans, and 6 Veterans’ cemetery walking tours. Additionally, under VLP contracts issued to date, VLP will have engaged almost 9,000 kindergarten through high school students, more than 200 undergraduate students, nearly 40 graduate students, more than 50 scholars, and more than 300 teachers. As the VLP program grew, VA sought authority to award grants to entities rather than request contract proposals from educational institutions to carry out this mission-critical function. Public Law 116–107, sec. 1 (codified at 38 U.S.C. 2400 note), enacted in early 2020, authorizes VA to make such grants. Under that authority, this proposed rule would establish regulations to govern VA’s funding of VLP projects through more effective and efficient grant awards that would be administered by the VLGP. The proposed regulations address the purpose and use of grant funds and set out the general process for awarding a grant, as well as criteria for evaluating grant applications, priorities related to the award of a grant, and other general requirements and guidance for administering the VLGP. Section 38.710 sets forth the purpose of the VLGP, which is to fund projects for research related to national, State, or Tribal Veterans’ cemeteries, to present such research through site hosting and other digital technologies, and to produce educational materials that teach about the history of Veterans interred in those cemeteries. Grants may also fund projects that promote community engagement with the histories of Veterans interred in those locations. E:\FR\FM\26MRP1.SGM 26MRP1

Agencies

[Federal Register Volume 86, Number 57 (Friday, March 26, 2021)]
[Proposed Rules]
[Pages 16156-16165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06322]


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LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Chapter III

[Docket No. 2021-1]


Copyright Alternative in Small-Claims Enforcement (``CASE'') Act 
Regulations

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Notification of inquiry.

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SUMMARY: The U.S. Copyright Office is issuing a notification of inquiry 
regarding its implementation of the Copyright Alternative in Small-
Claims Enforcement (``CASE'') Act. The CASE Act establishes the 
Copyright Claims Board (``CCB''), an alternative forum in which parties 
may voluntarily seek to resolve certain copyright infringement and 
other claims. The Office must establish regulations to govern the CCB 
and its procedures, including rules addressing service of notice and 
other documents, waiver of personal service, notifications that parties 
are opting out of participating in the forum, discovery, a mechanism 
for certain claims to be resolved by a single CCB Officer, review of 
CCB determinations by the Register of Copyrights, publication of 
records, certifications, and fees. The statute also allows the Office 
to adopt several optional regulations, including regulations addressing 
claimants' permissible number of cases, eligible classes of works, the 
conduct of proceedings, and default determinations. The statute vests 
the Office with general authority to adopt regulations to carry out its 
provisions. To assist in promulgating these regulations, the Office 
seeks public comment regarding the subjects of inquiry discussed in 
this notification.

DATES: Initial written comments must be received no later than 11:59 
p.m. Eastern Time on April 26, 2021. Written reply comments must be 
received no later than 11:59 p.m. Eastern Time on May 10, 2021.

ADDRESSES: For reasons of governmental efficiency, the Copyright Office 
is using the regulations.gov system for the submission and posting of 
public comments in this proceeding. All comments are therefore to be 
submitted electronically through regulations.gov. Specific instructions 
for submitting comments are available on the Copyright Office's website 
at https://www.copyright.gov/rulemaking/case-act-implementation/. If 
electronic submission of comments is not feasible due to lack of access 
to a computer and/or the internet, please contact the Office using the 
contact information below for special instructions.

FOR FURTHER INFORMATION CONTACT: John R. Riley, Assistant General 
Counsel, by email at [email protected], Brad A. Greenberg, Assistant 
General Counsel, by email at [email protected], or Rachel Counts, 
Paralegal, by email at [email protected]. They can each be reached 
by telephone at 202-707-8350.

SUPPLEMENTARY INFORMATION: 

I. Background

A. The CASE Act and the Copyright Claims Board

    On December 27, 2020, the President signed into law the Copyright 
Alternative in Small-Claims Enforcement (``CASE'') Act of 2020.\1\ The 
statute establishes the Copyright Claims Board (``CCB''), a voluntary 
tribunal in the Copyright Office (``Office'') comprised of three 
Copyright Claims Officers who have the authority to render 
determinations on certain copyright disputes that have a low economic 
value (``small copyright claims''). Congress created the CCB to address 
the significant challenges of litigating small copyright claims in 
federal court,\2\ a problem analyzed in depth in the Office's 2013 
policy report, Copyright Small Claims.\3\ This report included model 
legislation that Congress drew on in developing the statute, and 
Congress incorporated the Office's report and supporting materials into 
the statute's legislative history.\4\
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    \1\ Public Law 116-260, sec. 212, 134 Stat. 1182, 2176 (2020).
    \2\ See, e.g., H.R. Rep. No. 116-252, at 18-20 (2019). Note, the 
statute's legislative history cited is for H.R. 2426, 116th Cong. 
(2019), the CASE Act of 2019, a bill largely identical to the CASE 
Act of 2020.
    \3\ U.S. Copyright Office, Copyright Small Claims (2013) https://www.copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf 
(``Small Claims Report'').
    \4\ H.R. Rep. No. 116-252, at 19.
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    Prior to the CCB beginning operations, jurisdiction to hear 
copyright infringement suits resides exclusively in federal courts.\5\ 
The statute does not displace or limit the ability to bring copyright 
infringement claims in federal court. Instead, the law provides an 
alternative forum to decide small copyright claims in a manner that is 
more accessible to pro se parties and other parties that otherwise 
could not afford to litigate their claims.\6\
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    \5\ 17 U.S.C. 301(a); 28 U.S.C. 1338(a).
    \6\ H.R. Rep. No. 116-252, at 17.
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    The CCB has the authority to decide copyright infringement claims 
(asserted by copyright holders), claims seeking a declaration of 
noninfringement (asserted by users of copyrighted works or other 
accused infringers), and misrepresentation claims under 17 U.S.C. 
512(f).\7\ District courts can also refer parties to have their 
disputes decided by the CCB as part of their alternative dispute 
resolution programs.\8\
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    \7\ 17 U.S.C. 1504(c)(1)-(3).
    \8\ Id. 1509(b); see 28 U.S.C. 651.
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    While the statute mandates the creation of the CCB, it does not 
change the underlying copyright law with respect to these disputes. The 
CCB will employ existing case law in making its determinations and, in 
the case of conflicting judicial copyright precedents that cannot be 
reconciled, the CCB ``shall follow the law of the Federal jurisdiction 
in which the action could have been brought if filed in a district 
court of the United States,'' or, if the action could have been brought 
in multiple jurisdictions, the jurisdiction that ``has the most 
significant ties to the parties and conduct at issue.'' \9\ All CCB 
determinations are non-precedential.\10\ The CCB may consult with the 
Register of Copyrights on general issues of law, although, similarly to 
the Copyright Royalty Board (``CRB''), it cannot do so regarding the 
facts of any pending matter or the application of law to those 
facts.\11\
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    \9\ 17 U.S.C. 1503(b), 1506(a)(2); H.R. Rep. No. 116-252, at 21-
22, 25-26.
    \10\ H.R. Rep. No. 116-252, at 21-22, 33.
    \11\ 17 U.S.C. 1503(b)(2); see also id. 802(f)(1)(A)(i) 
(parallel CRB provision).
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    Participation in the CCB is voluntary for all parties.\12\ In 
establishing the CCB, Congress adopted a system whereby respondents 
must be notified of a claim asserted against them, and have the 
opportunity to opt out of participating in this alternative forum.\13\ 
As with private arbitration models, participants may consent to 
participate in CCB proceedings, waiving their ability to have a dispute 
heard in federal court including any right to a jury trial.\14\ As 
noted below, default determinations are able to be reviewed and set 
aside by an Article III judge, as an additional safeguard for 
defaulting respondents.\15\

[[Page 16157]]

If a party fails to comply with a CCB-ordered award, the party seeking 
relief will need to seek a district court order to enforce it.\16\
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    \12\ See id. at 1503(a), 1504(a); H.R. Rep. No. 116-252, at 17, 
21.
    \13\ 17 U.S.C. 1506(g)(1), (i).
    \14\ H.R. Rep. No. 116-252, at 21; Small Claims Report at 97-99.
    \15\ 17 U.S.C. 1508(c)(1)(C).
    \16\ H.R. Rep. No. 116-252, at 22 (citing Stern v. Marshall, 564 
U.S. 462, 491 (2011)); 17 U.S.C. 1508(a).
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    The CCB can award multiple types of relief. First, the CCB can 
award monetary relief of up to $30,000 per proceeding regardless of the 
number of works involved, exclusive of attorneys' fees and costs 
(discussed below).\17\ This can include (1) actual damages and profits 
attributable to the infringement, or (2) statutory damages. When 
awarding statutory damages, the CCB must apply different monetary caps 
and availability criteria than those applied in federal court. 
Specifically, the CCB may award up to $15,000 in statutory damages per 
work infringed for works registered within the Copyright Act's section 
412 time limits,\18\ and up to $7,500 in statutory damages per work 
infringed for non-timely registered works (with a cap of $15,000 per 
proceeding for non-timely registered works). Additionally, when 
assessing statutory damages, the CCB may not consider or make any 
finding that an infringement was willful, which typically increase 
statutory damages in federal court.\19\
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    \17\ Further, when parties elect to use the CCB's streamlined 
provisions for ``smaller claims,'' discussed below, total monetary 
damages are capped at $5,000 total damages. 17 U.S.C. 1506(z).
    \18\ Id. at 1504(e)(1)(A)(ii)(I).
    \19\ Id. at 1504(e)(1)(A)(ii)(III).
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    The CCB can only award reasonable costs and attorneys' fees if 
doing so would be in the interests of justice.\20\ Costs and attorneys' 
fees are not included in the monetary damages caps,\21\ but instead 
have their own limitations. When a party engages in bad-faith conduct, 
the CCB can award reasonable costs and attorneys' fees up to $5,000, or 
$2,500 for pro se claimants.\22\ Bad-faith conduct includes where ``a 
party pursued a claim, counterclaim, or defense for a harassing or 
other improper purpose or without a reasonable basis in law or fact.'' 
\23\ Such bad-faith conduct could include failure to prosecute, 
including failure to meet one or more deadlines or requirements set 
forth in the CCB's schedule without justifiable cause.\24\
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    \20\ Id. at 1506(y)(2).
    \21\ Id. at 1504(e)(1)(D).
    \22\ Id. at 1506(y)(2). ``In extraordinary circumstances,'' the 
CCB can award costs and attorneys' fees over these limits, but only 
``where a party has demonstrated a pattern or practice of bad faith 
conduct'' and ``in the interests of justice.'' Id. at 1506(y)(2)(B).
    \23\ Id. at 1506(y)(2).
    \24\ Id. at 1506(v)(2), (y)(2).
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    Second, while the CCB cannot issue injunctive relief, it can 
require that an infringing party cease or mitigate its infringing 
activity, but only in the event such party agrees and that agreement is 
reflected in the proceeding's record.\25\
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    \25\ Id. at 1504(e)(2)(A)(i), (e)(2)(B). This provision also 
applies to parties making knowing material misrepresentations under 
section 512(f). Id. at 1504(e)(2)(A)(ii).
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    The CCB will be comprised of three Copyright Claims Officers and 
supported by at least two Copyright Claims Attorneys and additional 
support staff.\26\ One Officer must have ``substantial familiarity with 
copyright law and experience in the field of alternative dispute 
resolution.'' \27\ The other two Officers must possess ``substantial 
experience in the evaluation, litigation, or adjudication of copyright 
infringement claims'' and together must have ``represented or presided 
over a diversity of copyright interests, including those of both owners 
and users of copyrighted works.'' \28\ These provisions are intended to 
ensure that the CCB is comprised of copyright experts, while 
``ensur[ing] a balanced system sensitive to both sides of infringement 
claims'' and ``undertak[ing] a holistic analysis of infringement claims 
with an eye toward the resourceful resolution of disputes.'' \29\
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    \26\ Id. at 1502(b).
    \27\ Id. at 1502(b)(3)(iii).
    \28\ Id. at 1502(b)(3)(ii).
    \29\ Small Claims Report at 100-101.
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    The Officers' duties include ensuring that claims, counterclaims, 
and defenses are properly asserted, managing CCB proceedings and 
issuing rulings, requesting production of information and relevant 
documents, conducting hearings and conferences, facilitating 
settlements, maintaining records, providing public information, and 
ultimately rendering determinations and awarding monetary relief.\30\ 
Copyright Claims Attorneys will assist the Officers in the 
administration of their duties and assist the public with understanding 
the CCB's procedures and requirements.\31\
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    \30\ 17 U.S.C. 1503(a), 1506.
    \31\ Id. at 1503(a).
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    After a determination is rendered, the CCB may reconsider it for 
clear error of law or fact, and parties may subsequently seek review 
from the Register of Copyrights to determine whether the Board abused 
its discretion in denying reconsideration.\32\ The CCB's determinations 
may also be reviewed by a district court ``on limited but well-
established grounds that parallel Section 10 of the Federal Arbitration 
Act''; that is, in the event of fraud, corruption, misrepresentation, 
or misconduct, or if the CCB exceeded its authority or failed to render 
a final determination concerning the subject matter.\33\ In addition, 
in the event of a default determination, a district court may vacate, 
modify, or correct the determination if it is established that the 
default or failure to prosecute was due to excusable neglect.\34\
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    \32\ Id. at 1506(w), (x).
    \33\ 17 U.S.C. 1508(c); H.R. Rep. No. 116-252, at 22; see 9 
U.S.C. 10(a) (under the Federal Arbitration Act, arbitral awards may 
be vacated for corruption, fraud, undue means, evident partiality, 
misconduct, or exceeding the powers delegated to the arbitrators).
    \34\ 17 U.S.C. 1506(c)(1).
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    Congress directed the CCB to begin operations by December 27, 2021; 
the Register of Copyrights may, for good cause, extend that deadline by 
not more than 180 days.\35\ The Officers must be appointed by the 
Librarian of Congress, after consultation with the Register,\36\ and 
the Office must hire other staff, promulgate necessary regulations, and 
establish related procedures, public materials, and forms. It must 
operationalize its administration of the various services provided by 
the CCB and other units of the Office, such as filings, payment 
administration, and mail processing. Because information technology 
development is centralized at the Library of Congress, the Library's 
Office of the Chief Information Officer (``OCIO'') must also identify 
and deploy any necessary IT resources for the CCB, such as virtual 
hearing platforms and a case management system.
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    \35\ Public Law 116-260, sec. 212(d), 134 Stat. at 2199.
    \36\ 17 U.S.C. 1502(b)(1).
---------------------------------------------------------------------------

    Congress vested the Office with broad regulatory authority to carry 
out the statute,\37\ and specified that the Register shall ``provide 
for the efficient administration of the Copyright Claims Board, and for 
the ability of the Copyright Claims Board to timely complete 
proceedings instituted under this chapter, including by implementing 
mechanisms to prevent harassing or improper use of the Copyright Claims 
Board by any party.'' \38\ Together, the statute and legislative 
history make clear that Congress intended for the Office to implement 
regulations in a manner that ``furthers the goals of the Copyright 
Claims Board'' \39\ and establishes an ``efficient, effective, and 
voluntary'' forum for parties to resolve their disputes.\40\
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    \37\ Id. at 1510(a)(1).
    \38\ Id.
    \39\ Id. at 1510(a)(2)(A).
    \40\ H.R. Rep. No. 116-252, at 23.

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[[Page 16158]]

B. Overview of the Rulemaking Process

    To establish necessary and appropriate regulations to govern the 
CCB, the Office seeks public comment on the subjects discussed below. 
The Office is issuing this notification of inquiry as the first step in 
promulgating the regulations required by the statute. The Office plans 
to subsequently publish multiple notices of proposed rulemaking, each 
focusing on one or more of the regulatory categories discussed below. 
The Office has concluded that this approach will help to efficiently 
and thoughtfully conduct the relevant regulatory proceedings in light 
of the scope of the statute and the Office's available resources. To 
aid the Office's review, it is requested that if a submission responds 
to more than one of the below categories, it be divided into discrete 
sections with headings clearly indicating the category being discussed 
in each section. Comments addressing a single category should also have 
a heading that clearly indicates which category is being discussed. The 
Office also notes that it tentatively expects to produce a CCB practice 
guide, which will not be a substitute for existing statutes, 
regulations, or case law, but will provide parties, potential parties, 
and the public at large with basic information concerning the CCB and 
its procedures. The Office has already established a web page 
describing the CCB, which will be frequently updated as implementation 
work proceeds.\41\
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    \41\ Copyright Small Claims and the Copyright Claims Board, 
https://copyright.gov/about/small-claims (last visited Mar. 21, 
2021).
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    The Office encourages parties to file joint comments on issues of 
common agreement.\42\ The Office will also consider holding informal 
meetings to gather additional information on discrete issues prior to 
publishing notices of proposed rulemaking, establishing guidelines for 
ex parte communications. Relevant guidelines will be issued at https://www.copyright.gov/rulemaking/case-act-implementation/, and will be 
similar to those imposed in other Office proceedings.\43\ Any such 
communications will be on the record to ensure the greatest possible 
transparency, and will supplement, not substitute for, the written 
record.
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    \42\ See, e.g., NCTA--The internet & Tele. Ass'n & Motion 
Picture Ass'n Ex Parte Letter (May 20, 2020), https://www.copyright.gov/rulemaking/section111/ncta-mpa.pdf (regarding 
regulations governing cable operators' reporting practices under 17 
U.S.C. 111); Joint Comments of Nat'l Music Pubs.' Ass'n & Dig. Media 
Ass'n Submitted in Response to Copyright Royalty Board's November 5, 
2018, Notification of Inquiry (Dec. 10, 2018) (regarding regulations 
relating to the MMA's enactment).
    \43\ See, e.g., 83 FR 65747, 65753-54 (Dec. 21, 2018) 
(identifying guidelines for ex parte communications in MLC and DLC 
designation proceeding); 82 FR 49550, 49563 (Oct. 26, 2017) 
(identifying guidelines for ex parte communications in the Office's 
``Section 1201'' rulemaking); see also, Ex Parte 
Communications,https://www.copyright.gov/rulemaking/mma-designations/ex-parte-communications.html (last visited Mar. 21, 
2021) (ex parte guidelines for MLC and DLC designation rulemaking); 
Ex Parte Communications, https://www.copyright.gov/1201/2018/ex-parte-communications.html (last visited Mar. 21, 2021) (ex parte 
guidelines for Seventh Triennial Section 1201 Proceeding, 2018).
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    While all public comments are welcome, the Office encourages 
parties to provide specific proposed regulatory language for the Office 
to consider and for others to comment upon. Similarly, it would be 
helpful for commenters replying to proposed language to offer alternate 
language for consideration.
    Commenters are reminded that while the Office has regulatory 
authority to implement the statute, it is constrained by the law 
Congress enacted; the Office can fill statutory gaps, but will not 
entertain proposals that conflict with the statute.\44\
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    \44\ See, e.g., Nat'l Cable & Telecomms. Ass'n v. Brand X 
internet Servs., 545 U.S. 967, 980 (2005) (``[A]mbiguities in 
statutes within an agency's jurisdiction to administer are 
delegations of authority to the agency to fill the statutory gap in 
reasonable fashion.'') (citing Chevron, U.S.A., Inc. v. Nat. Res. 
Def. Council, Inc., 467 U.S. 837, 865-66 (1984)).
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II. Subjects of Inquiry

A. Initiating CCB Proceedings, Notice, and Service of Notice and Claim

    As the legislative history explains, the CCB is designed ``to meet 
the Due Process Clause's guarantee of fundamental fairness in a federal 
proceeding,'' \45\ including through mechanisms providing for service 
of notice and claims and waiver of service provisions modeled after the 
Federal Rules of Civil Procedure's (``FRCP's'') Rule 4.\46\ In many 
cases, service of the notice may be the respondent's introduction to 
the nature of the dispute and to the option to have the dispute 
resolved by the CCB. As discussed below, for a claim to become an 
active proceeding, it must go through multiple procedural safeguards, 
including an initial claim review by a CCB attorney and service of 
multiple notices to the respondent, with the corresponding opportunity 
to opt out of the proceedings.
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    \45\ H.R. Rep. No. 116-252 at 22.
    \46\ Id. (providing additional mechanisms, such as the ability 
to participate in hearings virtually).
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    The statute provides that a claim must first be reviewed by a CCB 
attorney for sufficiency under the statute and any relevant regulations 
before the claim and notice of service is served upon a respondent.\47\ 
If the claim is reviewed and found to be noncompliant, the CCB will 
send the claimant a notice of noncompliance and the claimant can amend 
the claim within thirty days of receiving the notice, without paying an 
additional fee.\48\ If the claim remains noncompliant after the amended 
version is refiled, the claimant can amend it again within an 
additional thirty-day period after receiving the CCB's second notice of 
noncompliance.\49\ If the claimant does not file a compliant claim or 
misses either thirty-day refiling period, the claim will be dismissed 
without prejudice.\50\ These rules equally apply to counterclaims.\51\ 
Once approved by the CCB, the claim must be served on the respondent 
and proof of service must be filed within ninety days of such approval 
``using a standardized process and notice format established by the 
Register.'' \52\
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    \47\ 17 U.S.C. 1506(f)(1); H.R. Rep. No. 116-252, at 22.
    \48\ 17 U.S.C. 1506(f)(1)(B).
    \49\ Id.
    \50\ Id.
    \51\ Id. at 1506(f)(2). Further, claims against online service 
providers for infringement via storage of, referral, or linking to 
infringing material that may be subject to 17 U.S.C. 512(b)-(d)'s 
limitations on liability must contain an additional claimant 
affirmation. The claimant must affirm that they previously notified 
the service provider of the claimed infringement and the service 
provider failed to remove or disable access to the material 
expeditiously, in accordance with the applicable section of 17 
U.S.C. 512, or the claim will be dismissed without prejudice. Id. at 
1506(f)(1)(C)(i).
    \52\ H.R. Rep. No. 116-252, at 31; 17 U.S.C. 1506(g).
---------------------------------------------------------------------------

1. Content of Initial Notice
    To ensure that respondents are provided with proper notice of the 
claims asserted against them, along with information enabling a non-
represented party to understand what the CCB is, and the process 
required to elect to participate or decline to do so, the statute 
details certain elements that must be included in the initial notice 
accompanying the claim. In addition, the Office is required to create a 
prescribed notice form and is vested with regulatory authority to 
specify further requirements to be included.
    At a minimum, the served notice must meet several requirements 
prescribed by statue. The notice must be in a form that describes the 
CCB and the nature of a CCB proceeding.\53\ In addition, the notice 
must include ``a clear and prominent explanation of the respondent's 
right to opt out of the proceeding and the rights the

[[Page 16159]]

respondent waives if it does not.'' \54\ In particular, it must include 
a prominent statement that by not opting out of a CCB proceeding within 
sixty days of receiving the notice, the respondent ``loses the 
opportunity to have the dispute decided by a court created under 
article III of the Constitution of the United States'' and ``waives the 
right to a jury trial regarding the dispute.'' \55\
---------------------------------------------------------------------------

    \53\ 17 U.S.C. 1506(g)(1).
    \54\ H.R. Rep. No. 116-252, at 22; 17 U.S.C. 1506(g)(1).
    \55\ 17 U.S.C. 1506(g)(1).
---------------------------------------------------------------------------

    The Office now solicits comment regarding additional regulatory 
requirements to help ensure that the initial notice conveys a clear 
explanation of the CCB, deadlines associated with the pending claim, 
the ability and method for the respondent to opt out of the proceeding, 
and the benefits and consequences of participating or declining to do 
so. For example, FRCP 4, which prescribes the contents of a summons, 
requires a summons to name the court and parties, be addressed to the 
defendant, provide contact information for the plaintiff, state the 
time a defendant must appear, notify the defendant that failure to 
appear will result in a default judgment, and be signed by the clerk 
and bear the court's seal.\56\ The Office solicits comments regarding 
whether analogous requirements would be appropriate for a notice to a 
CCB respondent.
---------------------------------------------------------------------------

    \56\ Fed. R. Civ. P. 4(a)(1).
---------------------------------------------------------------------------

    The Office notes that a variety of federal and state courts provide 
templates for summonses, which are succinct documents of two to three 
pages. For example, the Central District of California provides a 
fillable PDF that can be digitally signed by the process server; 
typical for federal court, it references the relevant rules of civil 
procedure but does not provide explanatory information.\57\ Cook 
County, Illinois provides a similar form for state proceedings, but its 
form includes additional explanatory language as well as a list of 
hotlines to call for more information.\58\ It begins:
---------------------------------------------------------------------------

    \57\ Admin. Off. of the U.S. Cts., Summons in a Civil Action 
(June 2012) https://www.uscourts.gov/sites/default/files/ao440.pdf 
(form AO 440).
    \58\ Clerk for the Circuit Court of Cook County, Summons (Dec. 
2020), https://www.cookcountyclerkofcourt.org/Forms/pdf_files/CCG0001.pdf (form CCG 0001 A).

    You have been named a defendant in the complaint in this case, a 
copy of which is hereto attached. You are summoned and required to 
file your appearance, in the office of the clerk of this court, 
within 30 days after service of this summons, not counting the day 
of service. If you fail to do so, a judgment by default may be 
entered against you for the relief assked in the complaint. THERE 
WILL BE A FEE TO FILE YOUR APPEARANCE. To file your written 
---------------------------------------------------------------------------
appearance/answer YOU DO NOT NEED TO COME TO THE COURTHOUSE.

    Further tailored to pro se participants, the form for a small 
claims summons provided by the Superior Court of New Jersey small 
claims division, provides stark warnings to respondents and explains 
the small claims process.\59\ It reads:
---------------------------------------------------------------------------

    \59\ New Jersey Courts, Small Claims Summons and Return of 
Service (Sept. 2018), https://njcourts.gov/forms/10534_appendix_xi_a2.pdf.

---------------------------------------------------------------------------
YOU ARE BEING SUED!

IF YOU WANT THE COURT TO HEAR YOUR SIDE OF THIS CASE, YOU MUST 
APPEAR IN COURT. IF YOU DO NOT, THE COURT MAY RULE AGAINST YOU. READ 
ALL OF THIS PAGE AND THE NEXT PAGE FOR DETAILS.

In the attached complaint, the person suing you (who is called the 
plaintiff) briefly tells the court his or her version of the facts 
of the case and how much money he or she claims you owe. You are 
cautioned that if you do not come to court on the trial date to 
answer the complaint, you may lose the case automatically, and the 
court may give the plaintiff what the plaintiff is asking for, plus 
interest and court costs.

    The summons is offered in Spanish as well as English.\60\
---------------------------------------------------------------------------

    \60\ Id.
---------------------------------------------------------------------------

    Because a CCB attorney must review the claim for sufficiency before 
a claimant is allowed to proceed with service upon the respondent, the 
Office is tentatively inclined to require the inclusion of a docket 
number assigned by the CCB on the notice as well as the claim. The 
docket number (or similar unique identifier) could be used by the 
respondent to access information regarding the proceeding, including 
how to opt out of a proceeding. The Office queries whether additional 
data beyond inclusion of the docket number (with ability to verify the 
proceeding on a CCB website or case management system) should be 
required to provide indicia that the notice relates to an official 
government proceeding.
    In addition, because the CCB is designed to be accessible to 
participants who are not represented by attorneys, the Office is 
tentatively planning to require links to the Office's public 
information about the CCB to be included on the notice.\61\ The Office 
solicits comments on specific educational information that may be 
helpful to include, while being mindful that the notice must remain 
easy to understand and avoid overwhelming respondents. For example, 
should the notice provide information describing copyright or copyright 
infringement, as well as potential defenses that may be available to a 
respondent, such as fair use?
---------------------------------------------------------------------------

    \61\ Copyright Small Claims and the Copyright Claims Board, 
https://copyright.gov/about/small-claims (last visited Mar. 21, 
2021).
---------------------------------------------------------------------------

    The Office seeks comments on each specific field of information 
that claimants should be required to include in the notice. In 
addition, the Office is considering the content of the prescribed 
notice form, and welcomes public input. In responding, parties are 
encouraged to provide specific suggestions for language to be included 
on the form to describe the CCB and the decision facing the respondent, 
including by submitting sample notice forms if they desire.
2. CCB Respondent Notifications (Second Notice)
    In addition to the initial notice sent by the claimant, the statute 
requires that the Register promulgate regulations ``providing for a 
written notification to be sent by, or on behalf of, the Copyright 
Claims Board to notify the respondent of a pending proceeding.'' \62\ 
Similar to the initial notice, this notice must ``include information 
concerning the respondent's right to opt out of the proceeding, the 
consequences of opting out and not opting out, and a prominent 
statement that, by not opting out within 60 days after the date of 
service . . . the respondent loses the opportunity to have the dispute 
decided by a court created under article III of the Constitution of the 
United States'' and ``waives the right to a jury trial regarding the 
dispute.'' \63\
---------------------------------------------------------------------------

    \62\ 17 U.S.C. 1506(h).
    \63\ Id. at 1506(h)(1).
---------------------------------------------------------------------------

    This notice supplements the initial notice served by the claimant 
and is intended to facilitate understanding of the official nature of 
the documents and proceeding, encourage a respondent to review the 
materials, and overall, increase the likelihood that a respondent 
engages with the asserted claim and knowingly elects to proceed or opt 
out of the CCB proceeding. The Office seeks public input on any issues 
that should be considered relating to the second notice, including but 
not limited to its content and how to ensure that recipients understand 
that it is an official Federal Government notification. The Office also 
invites suggestions regarding the format and procedure for sending the 
second notice, considering that Congress allows such notices to be sent 
``by, or on behalf of'' the CCB. For example, should the Office create 
the notice and post it on the proceeding's docket for the claimant to 
download and deliver to the respondent? Should the Office require it

[[Page 16160]]

to be delivered in hard copy or by email, and how should delivery be 
documented? Given the small dollar value nature of the claims, and 
similar standards for federal court, the Office is not inclined to 
require physical delivery by a method other than the U.S. Postal 
Service. Similarly, if the CCB itself is responsible for serving the 
second notice, rather than generating and providing the notice to the 
claimant who would make service on the CCB's ``behalf,'' this would 
require additional Office operational resources.
3. Service of Process and Designated Agents
    After a CCB attorney has reviewed a claim and found it suitable to 
proceed, a claimant must serve notice of the proceeding and a copy of 
the claim on the respondent either via personal service or pursuant to 
waiver of personal service.\64\ Personal service may be effected by 
someone who is both ``not a party to the proceeding and is older than 
18 years of age'' \65\ and both service and waiver of service may only 
occur within the United States.\66\ Proof of service must be filed with 
the CCB within ninety days after the CCB determines that the claim is 
suitable for resolution.\67\ The statute includes separate rules of 
service for individuals and corporations, partnerships, and 
unincorporated associations, including those organizations using 
designated service agents. No claims can be brought ``by or against a 
Federal or State governmental entity.'' \68\
---------------------------------------------------------------------------

    \64\ Id. at 1506(g). The copy of the claim served must be the 
same as the claim that was filed with the CCB. Id. at 1506(g)(2).
    \65\ Id. at 1506(g)(3).
    \66\ Id. at 1506(g)(9); H.R. Rep. No. 116-252, at 32.
    \67\ 17 U.S.C. 1506(g).
    \68\ Id. at 1504(d)(3). The Office invites commenters to address 
whether the phrase ``Federal or state Governmental entity'' will be 
clearly understood by potential claimants.
---------------------------------------------------------------------------

    Service on an individual \69\ may be accomplished by using 
procedures analogous to those in the FRCP.\70\ Service can be 
accomplished by ``complying with State law for serving a summons in an 
action brought in courts of general jurisdiction in the State where 
service is made.'' \71\ Service can also be accomplished by ``leaving a 
copy of the notice and claim at the individual's dwelling or usual 
place of abode with someone of suitable age and discretion who resides 
there.'' \72\ Finally, service on an individual can be accomplished by 
``delivering a copy of the notice and claim to an agent designated by 
the respondent to receive service of process or, if not so designated, 
an agent authorized by appointment or by law to receive service of 
process.'' \73\
---------------------------------------------------------------------------

    \69\ For a minor or an incompetent individual, service can only 
be effected by ``complying with State law for serving a summons or 
like process on such an individual in an action brought in the 
courts of general jurisdiction of the State where service is made.'' 
17 U.S.C. 1506(g)(4), (8).
    \70\ See Fed. R. Civ. P. 4(e).
    \71\ 17 U.S.C. 1506(g)(4)(A).
    \72\ Id. at 1506(g)(4)(C).
    \73\ Id. at 1506(g)(4)(D).
---------------------------------------------------------------------------

    Like individuals, corporations, partnerships, or unincorporated 
associations can be served ``by complying with State law for serving a 
summons in an action brought in courts of general jurisdiction in the 
State where service is made.'' \74\ These organizations can also be 
served by delivering the notice and claim to ``an officer, a managing 
or general agent, or any other agent authorized by appointment or by 
law to receive service of process in an action brought in courts of 
general jurisdiction in the State where service is made.'' \75\
---------------------------------------------------------------------------

    \74\ Id. at 1506(g)(5)(A)(i).
    \75\ Id. at 1506(g)(5)(A)(ii). If the service agent is ``one 
authorized by statute and the statute so requires,'' the claimant 
must also mail a copy of the notice and claim to the respondent. Id.
---------------------------------------------------------------------------

    Under the statute, such corporations, partnerships, or 
unincorporated associations may elect to receive CCB claim notices via 
a designated service agent.\76\ The Office is required to establish 
regulations governing this designated service agent option and to 
``maintain a current directory of service agents that is available to 
the public for inspection, including through the internet.'' \77\ The 
Office may charge these organizations a fee to maintain the designated 
service agent directory.\78\
---------------------------------------------------------------------------

    \76\ Id. at 1506(g)(5)(B).
    \77\ Id.
    \78\ Id.
---------------------------------------------------------------------------

    When commenting on aspects related to the CCB's service agent 
directory, parties may want to review the Office's existing designated 
agent directory for online service providers, created pursuant to the 
Digital Millennium Copyright Act (``DMCA'').\79\ Under the DMCA, the 
Office has promulgated regulations setting forth requirements for 
service providers to designate agents to receive notifications of 
claimed infringement,\80\ and maintains a centralized online directory 
of those agents.\81\ The directory allows the public to search by 
service provider and view both current and historical designated agent 
information, and is populated automatically with information supplied 
by service providers through the Office's online system.\82\ To 
designate an agent in that system, a service provider must supply its 
full legal name, physical street address, any alternate names used by 
the service provider, and the name, organization, physical mail 
address, telephone number, and email address of its designated agent. 
The registration process costs $6 per designation and must be renewed 
every three years.
---------------------------------------------------------------------------

    \79\ See id. at 512(c)(2).
    \80\ 37 CFR 201.38.
    \81\ DMCA Designated Agent Directory, https://copyright.gov/dmca-directory (last visited Mar. 21, 2021).
    \82\ From a user experience perspective, commenters may also 
wish to access the Office's searchable database of Pre-1972 Sound 
Recordings. Schedules of Pre-1972 Sound Recordings, https://www.copyright.gov/music-modernization/pre1972-soundrecordings/search-soundrecordings.html (last visited Mar. 21, 2021).
---------------------------------------------------------------------------

    Commenters are encouraged to discuss whether and to what extent the 
Office should look to its DMCA designated agent regulations with 
respect to implementing the statute's service agent directory. The 
Office is interested in comments on whether and how a corporate parent 
should identify its progeny and how to make the database easy to 
update, search, and use. Further, and as noted in the section on fees 
below, the Office requests parties' comments on the appropriate fee to 
``cover the costs of maintaining the directory.'' \83\
---------------------------------------------------------------------------

    \83\ 17 U.S.C. 1506(g)(5)(B).
---------------------------------------------------------------------------

    The statute also allows a respondent to waive personal service by 
returning a signed form to the CCB. The claimant must provide this form 
to the respondent ``by first class mail or by other reasonable means'' 
and return of the form must be at no cost to the respondent.\84\ The 
claimant's waiver request must be in writing, include a notice of the 
proceeding and a copy of the claim, state the date the request was 
sent, and provide the respondent thirty days to respond.\85\ The 
personal service waiver does not constitute a waiver of the 
respondent's right to opt out of the proceeding.\86\
---------------------------------------------------------------------------

    \84\ Id. at 1506(g)(6).
    \85\ Id. at 1506(g)(6)(A)-(B).
    \86\ Id. at 1506(g)(7)(A).
---------------------------------------------------------------------------

    The Office may establish additional regulations governing 
commencing proceedings, personal service, and the personal service 
waiver request.\87\ The statute requires the Office to enact 
regulations for service of any documents submitted or relied upon in a 
CCB proceeding, other than the notice of the proceeding and the copy of 
the claim.\88\
---------------------------------------------------------------------------

    \87\ Id. at 1506(e), (g), (g)(6).
    \88\ Id. at 1506(j).
---------------------------------------------------------------------------

    The Office seeks public input on any issues that should be 
considered relating to the CCB's service requirements, including but 
not limited to waiver and the service of documents

[[Page 16161]]

other than the initial notice and claim. To facilitate efficiency of 
communication with respect to claims brought by parties outside the 
United States, the Office inquires whether foreign claimants should be 
required to designate a domestic service agent and to provide such 
information to respondents.

B. Opt-Out Provisions

    Generally, respondents who do not wish to have a claim heard by the 
CCB can opt out of proceedings on a case-by-case basis. The statute 
includes two additional opt-out provisions: a blanket opt-out for 
libraries and archives who do not wish to participate in any CCB 
proceedings and a separate opt-out for parties who receive notice that 
they are class members in a pending class action involving the same 
transaction or occurrence as the CCB proceeding. The Office is directed 
to establish regulations to govern these opt-out actions.\89\
---------------------------------------------------------------------------

    \89\ Id. at 1506(aa)(1), 1507(b)(2)(A).
---------------------------------------------------------------------------

1. Respondent's Opt-Out
    As outlined above, after being properly served, respondents may opt 
out of a CCB proceeding by providing written notice to the CCB within 
sixty days of the date of service, although the CCB can extend that 60-
day period in the interests of justice.\90\ If a respondent does not 
opt out in a timely manner, the proceeding will become active and the 
respondent will be bound by the CCB's determination as provided for in 
section 1507(a).\91\ If the respondent does opt out, the proceeding 
will be dismissed without prejudice.\92\ The Office seeks public input 
on any issues that should be considered relating to the respondent's 
written opt-out notice, including the content of a notice and the 
methods that a respondent may use to execute that notice (e.g., paper 
or electronic).
---------------------------------------------------------------------------

    \90\ Id. at 1506(i).
    \91\ Id.
    \92\ Id.
---------------------------------------------------------------------------

    In addition, the Office solicits comments regarding whether it 
should create a publicly accessible list of entities or individuals who 
have opted out of using the CCB in prior proceedings, as well as any 
other considerations relevant to whether the CCB should reflect a 
system to recognize entities or individuals that wish to consistently 
opt out of CCB proceedings. On the one hand, Congress did not establish 
a blanket opt-out for any entities other than libraries and archives, 
and in that case, it did so expressly by statute. This suggests that 
the Office lacks authority to adopt other blanket opt-outs by 
regulation.\93\ On the other hand, the Office understands that entities 
intending to consistently opt out may appreciate efficiency or at least 
a way to publicize their intentions, and that potential copyright owner 
claimants may also wish to avoid incurring filing fees as a result of 
serving claims upon entities who consistently opt out.
---------------------------------------------------------------------------

    \93\ See Antonin Scalia & Bryan A. Garner, Reading Law: The 
Interpretation of Legal Texts 107 (2012); see also Lindh v. Murphy, 
521 U.S. 320, 330 (1997) (describing ``negative implications raised 
by disparate provisions'').
---------------------------------------------------------------------------

2. Library and Archives Opt-Outs
    The statute requires the Office to promulgate regulations for 
libraries and archives to ``set forth procedures for preemptively 
opting out of proceedings before the Copyright Claims Board'' and 
``compile and maintain a publicly available list of the libraries and 
archives that have successfully opted out.'' \94\ For purposes of this 
provision, ``the terms `library' and `archives' mean any library or 
archives, respectively, that qualifies for the limitations on exclusive 
rights under [17 U.S.C.] 108.'' \95\ Office regulations cannot require 
a library or archives to pay a fee to opt out of a CCB proceeding or 
require renewal of the opt-out decision.\96\
---------------------------------------------------------------------------

    \94\ 17 U.S.C. 1506(aa)(2).
    \95\ Id. at 1506(aa)(4).
    \96\ Id. at 1506(aa)(3).
---------------------------------------------------------------------------

    The Office seeks public input on any issues that should be 
considered relating to the library and archives opt-out regulations, 
including whether a library or archive should be required to prove or 
certify its qualification for the limitations on exclusive rights under 
17 U.S.C. 108, and thus for the blanket opt-out provision, and how to 
address circumstances where a library or archives ceases qualifying. In 
particular, given the prevalence of libraries and archives being 
located within larger entities, including but not limited to colleges 
and universities or municipalities, the Office invites suggestions 
addressing which entities, principals, or agents may opt out on behalf 
of a library or archive, as well as any associated certifications. The 
Office also seeks input related to transparency and functionality 
considerations with respect to its publication of the list of libraries 
and archives that have opted out. Finally, the Office is interested in 
whether it should include a regulatory provision that specifies that 
this opt out extends to employees operating in the course of their 
employment.
3. Class Action Opt-Outs
    Any party to an active proceeding before the CCB who receives 
notice of a pending class action arising out of the same transaction or 
occurrence as the proceeding before the CCB, in which the party is a 
class member, shall either seek to dismiss the CCB proceeding or opt 
out of the class action proceeding, ``in accordance with regulations 
established by the Register of Copyrights.'' \97\ The Office seeks 
public input on any issues that should be considered relating to 
regulations governing dismissal or opt-outs related to class action 
proceedings, including specific proposed regulatory language.
---------------------------------------------------------------------------

    \97\ Id. at 1507(b)(2).
---------------------------------------------------------------------------

C. Additional CCB Practice and Procedures

    The Office also requests comment on specific practice and 
procedural issues: Discovery, defaults, certifications for the various 
filings made by participants, and procedures for ``smaller claims.'' As 
noted, the statute provides the Office with broad flexibility to 
regulate CCB proceedings.\98\ In this regard, the Office heeds 
Congress's observation that ``[w]hile principles of federal procedure 
are relevant to the CASE Act, the Act is not intended to simply mimic 
federal practice'' and that the Office should ``tak[e] advantage of the 
grant of regulatory authority to create rules and procedures most 
appropriate to create an efficient dispute resolution forum that also 
affords due process protections.'' \99\ In addition to those specific 
areas, the Office welcomes comment on other CCB practices and 
procedures.
---------------------------------------------------------------------------

    \98\ Id. at 1506(a)(1), 1510(a)(1).
    \99\ H.R. Rep. No. 116-252, at 23.
---------------------------------------------------------------------------

1. Discovery
    The statute allows for limited discovery in CCB proceedings. 
Discovery may include ``the production of relevant information and 
documents, written interrogatories, and written requests for 
admission,'' as established by Office regulations.\100\ If a party 
makes a request for additional, limited discovery and has demonstrated 
good cause for that request, the CCB ``may approve additional relevant 
discovery, on a limited basis, in particular matters, and may request 
specific information and documents from participants in the proceeding 
and voluntary submissions from nonparticipants, consistent with the 
interests of justice.'' \101\ If a party does not ``timely provide 
discovery materials in response to a proper request

[[Page 16162]]

for materials that could be relevant to [disputed] facts'' after being 
provided notice and an opportunity to respond and upon good cause 
shown, the CCB may ``apply an adverse inference with respect to 
disputed facts'' against that party.\102\
---------------------------------------------------------------------------

    \100\ 17 U.S.C. 1506(n).
    \101\ Id. at 1506(n)(1).
    \102\ Id. at 1506(n)(3).
---------------------------------------------------------------------------

    Congress limited discovery in CCB proceedings to ``ensure that the 
proceedings are streamlined and efficient.'' \103\ As described by the 
Office's Copyright Small Claims report, discovery in the federal courts 
is the ``primary reason for the length of federal court litigation'' 
and is associated with ``often substantial costs and potential for 
abuse by exploitative litigants.'' \104\ While some discovery may often 
be necessary in a CCB proceeding, the Office is mindful that additional 
discovery could compromise the value and efficiency gained by using the 
CCB, in lieu of using the federal courts. The Office further notes that 
some state small claims systems adopt presumptions against any 
discovery at all.\105\
---------------------------------------------------------------------------

    \103\ H.R. Rep. No. 116-252, at 17.
    \104\ Small Claims Report at 13.
    \105\ See, e.g., Commonwealth of Massachusetts, Trial Court of 
the Commonwealth, Small Claims Standards sec. 5:02, (Nov. 2001), 
https://www.mass.gov/doc/small-claims-standards/download 
(``Discovery is not routinely available'').
---------------------------------------------------------------------------

    The Office seeks public input on any issues that should be 
considered relating to discovery in CCB proceedings, including but not 
limited to a limit on the number of interrogatories and requests for 
admission allowed without leave, what constitutes ``good cause'' to 
request additional information, standards for determining when 
information is confidential, and which provisions of FRCP Rule 26 
should or should not be imported or adapted into the CCB's regulations. 
For example, are there circumstances where a Rule 26(f) conference is 
appropriate, and if so, should the Office require the use of a specific 
template that sets out proposed deadlines and allows parties to fill in 
blanks? In cases where discovery extends to production of 
electronically stored information (``ESI''), should the CCB create 
rules specifically relating to ESI? In responding, commenters are 
encouraged to direct the Office to any practices or model rules of 
specific jurisdictions, and describe how their functioning may be worth 
emulating or avoiding.
2. Protective Orders
    Any documents or testimony that contain confidential information 
can be subject to a protective order issued by the CCB, upon the 
request of a party and for good cause shown.\106\ In considering issues 
related to discovery, commenters are encouraged to address to the CCB's 
handling of confidential information (including the redacting of such 
information) and the issuance of protective orders. For example, should 
the CCB adopt a default model protective order that the parties can 
enter into, with appropriate adaptations as needed? In addressing this 
topic, commenters may wish to review the Copyright Royalty Board's 
confidentiality and redaction regulations and recent protective 
orders,\107\ or provide the Office with model rules from jurisdictions 
that may prove useful.
---------------------------------------------------------------------------

    \106\ 17 U.S.C. 1506(n)(2).
    \107\ See, e.g., 37 CFR 303.5(k) (rules governing exclusion or 
redaction of personally identifiable information); Protective Order, 
Determination of Rates and Terms for Digital Performance of Sound 
Recordings and Making of Ephemeral Copies to Facilitate Performances 
(Web V), No. 19-CRB-0005-WR (2021-2025) (June 24, 2019), https://app.crb.gov/document/download/4012.
---------------------------------------------------------------------------

3. Respondent's Default and Claimant's Failure To Prosecute
    Where a proceeding becomes ``active,'' i.e., the respondent has not 
timely opted out of the CCB process, and the respondent ``has failed to 
appear or has ceased participating in the proceeding,'' the CCB may 
enter a default determination.\108\ To obtain a default determination, 
the claimant must ``submit relevant evidence and other information in 
support of the claimant's claim and any asserted damages.'' \109\ The 
CCB must then evaluate this evidence, including any other requested 
submissions, and determine if those materials are sufficient to support 
a finding in the claimant's favor and, if so, any appropriate relief 
and damages.\110\
---------------------------------------------------------------------------

    \108\ 17 U.S.C. 1506(u) (The respondent's failure to appear or 
participate ``can be demonstrated by the respondent's failure, 
without justifiable cause, to meet 1 or more deadlines or 
requirements set forth in the [CCB's proceeding] schedule.'').
    \109\ Id. at 1506(u)(1).
    \110\ Id.
---------------------------------------------------------------------------

    If the CCB determines that a default judgment is proper, it must 
prepare a default determination and provide a written notice to all the 
respondent's addresses reflected in the CCB's proceeding records, 
including email addresses, giving the respondent thirty days to submit 
an opposition to the proposed default determination.\111\ If the 
respondent timely responds to the CCB's notice, the CCB must consider 
the response when issuing its determination, which is then not 
considered a ``default.'' \112\ If the respondent does not respond to 
the notice, the CCB ``shall proceed to issue the default determination 
as a final determination,'' although the CCB ``may, in the interests of 
justice, vacate the default determination.'' \113\ A federal court can 
also vacate the default determination ``if it is established that the 
default . . . was due to excusable neglect.'' \114\
---------------------------------------------------------------------------

    \111\ Id. at 1506(u)(2).
    \112\ Id. at 1506(u)(3).
    \113\ Id. at 1506(u)(4).
    \114\ Id. at 1508(c)(1)(C).
---------------------------------------------------------------------------

    As Congress made clear, the statute ``establishes a strong 
presumption against default judgments'' and provides greater 
protections against default than in the federal courts.\115\ The 
statute also gives the Office the authority to supplement the statutory 
default rules by establishing additional requirements that must be met 
before the CCB can enter a default determination.\116\ The Office seeks 
public input on any issues that should be considered relating to a 
respondent's default, including but not limited to regulations 
regarding proof of damages in a default proceeding.\117\
---------------------------------------------------------------------------

    \115\ H.R. Rep. No. 116-252, at 24.
    \116\ 17 U.S.C. 1506(u)(1).
    \117\ See H.R. Rep. No. 116-252, at 24-25.
---------------------------------------------------------------------------

    The statute also contains rules regarding a claimant's failure to 
complete service and failure to prosecute. If a claimant does not 
complete service on a respondent within ninety days of the CCB 
approving the claim, the CCB will dismiss the proceeding without 
prejudice.\118\ After a proceeding becomes active, if a claimant fails 
to meet one or more deadlines or requirements set forth in the CCB's 
schedule without justifiable cause, the CCB may dismiss the claimant's 
claims.\119\ The CCB must first provide the claimant written notice 
that it has missed a deadline and a thirty-day period to respond to the 
notice, and must consider the claimant's response, if any, before 
dismissing the claims.\120\ As noted above, failure to prosecute can 
constitute bad-faith conduct, potentially subjecting the claimant to 
pay the respondent's costs and attorneys' fees.\121\
---------------------------------------------------------------------------

    \118\ 17 U.S.C. 1506(v)(1).
    \119\ Id. at 1506(v)(2).
    \120\ Id.
    \121\ Id. at 1506(v)(2), (y)(2).
---------------------------------------------------------------------------

4. Smaller Claims
    The Office is required to promulgate regulations for a single CCB 
Officer to hear and resolve ``smaller claims,'' i.e., claims involving 
$5,000 or less (exclusive of any attorneys' fees and

[[Page 16163]]

costs).\122\ Congress expects that these smaller claim proceedings will 
``otherwise have the procedural protections of any other claim before 
the Copyright Claims Board,'' \123\ and that a determination issued 
under the smaller claims provisions will ``have the same effect as a 
determination issued by the entire Copyright Claims Board.'' \124\ The 
Office seeks public input on any issues that should be considered 
relating to smaller claims proceedings, including but not limited to 
any regulations that will increase the efficiency of the single-Officer 
proceeding while retaining the CCB's standard procedural protections.
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    \122\ Id. at 1506(z).
    \123\ H.R. Rep. No. 116-252, at 17.
    \124\ 17 U.S.C. 1506(z).
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5. Other Rules of Practice and Procedure; Evidentiary Rules
    While the discussion above identifies a number of filings and 
procedures related to the operation of the CCB from initiation of 
claims through the Board's rendering of determinations, it is not 
comprehensive. The Office solicits suggestions, including specific 
proposals, regarding other procedural rules that would be helpful to 
the CCB's goal of establishing an efficient dispute resolution forum 
while respecting due process protections.\125\ Because the CCB is 
designed to be simpler and less formal than federal courts, the Office 
encourages plain language suggestions and urges commenters to consider 
what rules are necessary to codify by regulation and in what areas it 
is advisable for CCB Officers to retain discretion and flexibility.
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    \125\ See H.R. Rep. No. 116-252, at 23.
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    In particular, the Office solicits comment regarding whether to 
propose adopting additional provisions of the FRCP on areas germane to 
the CCB's operations, with potential modifications to simplify them and 
make them more accessible. For example, commenters may consider 
addressing rules such as: Serving and filing pleadings and other papers 
(Rule 5); privacy protections for filings made with the court (Rule 
5.2); computing and extending time for motion papers (Rule 6); 
pleadings allowed (Rule 7); disclosure statement (Rule 7.1); general 
and special rules of pleadings (Rule 8); form of pleadings (Rule 10); 
signing pleadings, motions, and other papers; representations to the 
Court, sanctions (Rule 11); defenses and objections (Rule 12); 
counterclaim and crossclaim (Rule 13); amended and supplemental 
pleadings (Rule 15); and scheduling and management (Rule 16).\126\
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    \126\ Fed. R. Civ. P. 5, 5.2, 6, 7, 7.1, 8, 10-13, 15, 16.
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    Beyond the Federal Rules, commenters are strongly encouraged to 
consider whether other rules or adjudicatory bodies may offer useful 
models. Most notably, various state court systems operate small claims 
courts, which may contain helpful language or approaches for the CCB to 
model.\127\ Federal courts, too, often have model rules for their 
districts, including rules tailored to pro se representations. 
Comparable agency tribunals may also offer useful analogues. For 
example, the Copyright Royalty Board's regulations are codified at 37 
CFR parts 350 through 355. Several Office regulations also address 
related issues such as certifications \128\ and attestations,\129\ 
confidentiality,\130\ waiver, service of process upon the Office, and 
production of information by the Office.\131\ In addition, the U.S. 
Patent and Trademark Office has promulgated rules governing procedures 
and practices with respect to operation of the Trademark Trial and 
Appeals Board as well as the Patent Trial and Appeals Board.\132\
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    \127\ See, e.g., Superior Court Rules--Small Claims (DC 2017) 
https://www.dccourts.gov/sites/default/files/2017-05/Superior%20Court%20Rules%20of%20Procedure%20for%20the%20Small%20Claims%20and%20Conciliation%20Branch.pdf; see also DC Small Claims and 
Conciliation Branch Handbook, https://www.dccourts.gov/sites/default/files/matters-docs/Small_Claims_Handbook_Revised_May_2015.pdf.
    \128\ See, e.g., 37 CFR 201.4(c)(4)-(5) (recordation-related 
certifications), 210.10(j) (section 115 cumulative statements of 
account certification), 210.27(i) (section 115 monthly reports of 
usage certification for blanket licensees), 210.29(g) (Mechanical 
Licensing Collective's section 115 royalty statement certification).
    \129\ See, e.g., id. at Sec. Sec.  201.4(d)(4) (redaction of 
personal identifying information), 201.17(e)(14) (statements of 
account submitted by cable systems), 201.38(c)(2) (DMCA designated 
agent attestation).
    \130\ Id. at Sec.  210.34.
    \131\ Id. at part 205.
    \132\ See id. at parts 2, 7, 11, 42.
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    Like other small claims tribunals, CCB proceedings are not subject 
to formal rules of evidence.\133\ The CCB can consider relevant 
documentary and other nontestimonial evidence as well as relevant 
testimonial evidence.\134\ The testimonial evidence must be submitted 
under penalty of perjury and is normally limited to parties' and non-
expert witnesses' statements.\135\ In exceptional cases, the CCB may 
permit expert witness testimony for good cause.\136\ In addition to 
rules of procedure, the Office encourages parties to comment upon 
issues relevant to evidentiary rules.\137\
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    \133\ 17 U.S.C. 1506(o); Small Claims Report at 126; see e.g., 
District of Columbia Courts, Small Claims Mediation 2 (Sept. 2017), 
https://www.dccourts.gov/sites/default/files/Small%20Claims%20Mediation%2009-17.pdf (the DC small claims 
mediation program is expressly not subject to the Federal Rules of 
Evidence). Cf. Fed. R. Evid. (2020).
    \134\ 17 U.S.C. 1506(o).
    \135\ Id. at 1506(o)(2).
    \136\ Id.
    \137\ See, e.g., Fed. R. Evid. (2020).
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    In responding, the Office invites commenters to propose specific 
regulatory language so that this notification may crystallize areas of 
agreement and disagreement among the commenting parties.

D. Public Access to Records and Proceedings; Certifications; Case 
Management System Considerations

    The CCB will make its final determinations available on a publicly 
accessible website.\138\ The CCB is also required to certify official 
records of its proceedings, including for review and confirmation of 
CCB determinations by a district court.\139\ Additionally, the Office 
must establish regulations regarding publication of other CCB 
determination records and information, ``including the redaction of 
records to protect confidential information that is the subject of a 
protective order.'' \140\
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    \138\ 17 U.S.C. 1506(t)(3).
    \139\ Id. at 1503(a)(1)(I); 1508(b).
    \140\ Id. at 1506(t)(3).
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    To maintain and publish the CCB's records, the Office has requested 
that the OCIO provide the CCB with an electronic filing and case 
management system. The Office intends for this system to provide 
capabilities comparable to existing case management systems, such as, 
those operated in existing small claims courts, the Copyright Royalty 
Board's eCRB platform, or the federal courts' case management/
electronic case files system, called PACER.\141\ The system would 
provide a mechanism to publish CCB orders and determinations and other 
information, as well as written submissions to the CCB, including 
claims and responses, on a public-facing website.
---------------------------------------------------------------------------

    \141\ See eCRB, https://app.crb.gov/; Public Access to Court 
Electronic Records, https://pacer.uscourts.gov/.
---------------------------------------------------------------------------

    In addition to specifically soliciting information regarding 
issuance of protective orders noticed above, the Office seeks public 
input on other issues relating to the CCB's provision of access to 
records and proceedings to the general public, as well as certification 
of records and determinations.

E. Register's Review of CCB's Denial of Reconsideration

    The CCB's determinations are subject to reconsideration or 
amendment by the CCB itself, if a party submits a written

[[Page 16164]]

request within thirty days of the final determination.\142\ Where the 
CCB denies a party's request for reconsideration of a final 
determination, that party can request that the Register review the 
determination. Such review ``shall be limited to consideration of 
whether the Copyright Claims Board abused its discretion in denying 
reconsideration of the determination.'' \143\ A request must be 
accompanied by ``a reasonable filing fee,'' to be established by 
regulation.\144\ After other parties have had an opportunity to address 
the reconsideration request, the Register must either ``deny the 
request for review, or remand the proceeding to the Copyright Claims 
Board for reconsideration of issues specified in the remand and for 
issuance of an amended final determination.'' \145\ The Office seeks 
public input on any issues relating to the Register's review, including 
any potential regulatory provisions addressing the substance of the 
request, e.g., inclusion of the reasons the party believes the CCB 
abused its discretion, post-review procedures, and the amount of a 
reasonable filing fee.
---------------------------------------------------------------------------

    \142\ 17 U.S.C. 1506(w).
    \143\ Id. at 1506(x).
    \144\ Id.
    \145\ Id.
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F. Fees

    The statute requires the Office to establish multiple fees 
associated with CCB proceedings. These include fees to commence a CCB 
proceeding,\146\ whether before the full CCB or a single Officer, fees 
to initiate the Register's review of the CCB's denial of 
reconsideration,\147\ and fees to ``cover the costs'' associated with 
maintaining the service agent directory.\148\
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    \146\ Id. at 1506(e)(3).
    \147\ Id. at 1506(x).
    \148\ Id. at 1506(g)(5)(B).
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    As noted above, there shall be no fee imposed upon libraries or 
archives filing a blanket opt-out of proceedings with the CCB.\149\ The 
statute further states that ``[t]he sum total of . . . filing fees'' 
must be ``not less than $100, may not exceed the cost of filing an 
action in a district court of the United States'' (currently $400), and 
``shall be fixed in amounts that further the goals of the Copyright 
Claims Board.'' \150\ The Office tentatively interprets these monetary 
limits as referring to the collective costs associated with fees paid 
by claimants to initiate proceedings, given the provision's comparison 
to costs of filing an action in district court. For example, the Office 
does not believe a fee associated with an entity filing a notice of 
service agent needs to fall under this cap, since it would be paid by a 
different entity than a claimant and would not be associated with a 
particular proceeding.
---------------------------------------------------------------------------

    \149\ Id. at 1506(aa)(3).
    \150\ Id. at 1510(c); see H.R. Rep. No. 116-252, at 28 n.1.
---------------------------------------------------------------------------

    The statute's fee-setting provisions augment the general fee-
setting authority provided to the Office in section 708 of the 
Copyright Act, which authorizes the Register to fix fees for certain 
services, including CCB services, based on the cost of providing 
them.\151\ The Office has previously interpreted this requirement to 
permit it to ``use fee revenue from some services to offset losses from 
others for which the fees are kept low to encourage the public to take 
advantage of the service.'' \152\ As with most of its services, the 
Office intends to intake fees for the CCB via pay.gov.
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    \151\ 17 U.S.C. 708(a). Section 708 contains other requirements 
for setting certain fees, such as a requirement to conduct a fee 
study for Congress or limitations on fees for filing statements of 
account in connection with certain statutory licenses that do not 
appear to apply to CCB fees.
    \152\ Copyright Office Fees, Notice of Proposed Rulemaking, 83 
FR 24054, 24055 (May 24, 2018).
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    The Office seeks public input on any issues that should be 
considered relating to CCB fees, including with respect to the amounts 
for specific fees. It is also interested in comments evaluating whether 
fees to commence a proceeding should be staggered to require an initial 
fee and an additional fee once the proceeding is active (i.e., 
obligating claimants with proceedings that are likely to proceed to a 
determination to bear greater costs than claimants where respondents 
opt out), whether fees for consideration and determination by a single 
CCB Officer should be lower than fees for standard CCB proceedings, or 
any other related topics.

G. Permissible Number of Cases

    The Office has the power to limit ``the permitted number of 
proceedings each year by the same claimant . . . in the interests of 
justice and the administration of the Copyright Claims Board.'' \153\ 
As described by Congress, this power ``functions as both a docket 
management tool . . . and as protection against abusive conduct.'' 
\154\ The Office expects the CCB to exercise this power, and notes the 
likelihood that any initial limitation may be revisited after the CCB 
has established its workflows and can better evaluate its expected 
workload. The Office seeks public input on any issues that should be 
considered relating to the initial limitation of the permitted number 
of proceedings each year by the same claimant in CCB proceedings, 
including whether the limitation should be based on a claimant's 
filings or active claims, other small claims tribunals' experiences 
with comparable limitations,\155\ and how such a limitation may best be 
designed to prevent abusive conduct while preserving access for good-
faith claimants.
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    \153\ 17 U.S.C. 1504(g).
    \154\ H.R. Rep. No. 116-252, at 31.
    \155\ See, e.g., Cal. Civ. Proc. Code 116.231; Mich. Comp. Laws 
600.8407(2).
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H. Conduct of Parties and Attorneys

    The statute has several provisions to preemptively deter frivolous, 
vexatious, or otherwise improper conduct, including the claim filing 
fee,\156\ the ability for the Office to limit the number of claims an 
entity can bring each year,\157\ the total monetary recovery 
limitation,\158\ and the provision that a notice of a claim may be sent 
only after being reviewed by the CCB for statutory and regulatory 
compliance.\159\ The statute also requires the Office to establish 
regulations requiring parties to certify that statements made in CCB 
proceedings are accurate and truthful.\160\ Further, the statute 
contains provisions to address bad-faith conduct, including by awarding 
costs and attorneys' fees and barring repeat offenders from initiating 
claims before the CCB for twelve months.\161\ These provisions 
demonstrate that Congress went to great lengths to address potential 
problems concerning bad-faith claimants. The Office is committed to 
thoughtful implementation of these provisions to deter both bad-faith 
conduct and misuse of CCB proceedings by those who have a genuine 
misunderstanding of the law.\162\ The Office seeks public input on any 
issues that should be considered relating to parties' certification 
requirements and bad-faith conduct, including how the CCB can verify 
that filings do not contain fraudulent information, procedures for 
reporting bad-faith conduct, and whether the Office should prohibit 
attorneys who have been suspended from the practice of law from 
participating in CCB proceedings. For example, the U.S. Patent and 
Trademark

[[Page 16165]]

Office has adopted various rules with respect to the operation of the 
Patent Trial and Appeals Board and the Trademark Trial and Appeals 
Board, as well as for attorneys and entities prosecuting applications 
before the agency. Those rules address various issues, such as conduct 
and discipline, duties of candor, fraud prevention, and, if necessary, 
sanction, suspension, exclusion or censure.\163\ Commenters are 
encouraged to suggest other models (including any adopted by state 
small claims courts), as well as to offer regulatory language tailored 
to the CCB specifically.
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    \156\ 17 U.S.C. 1510(c).
    \157\ Id. at 1504(g).
    \158\ Id. at 1504(e)(1)(D).
    \159\ Id. at 1506(f)(1).
    \160\ Id. at 1506(e)(2), (y)(1).
    \161\ Id. at 1506(y)(2); see also id. at 1510(a)(1) (directing 
the Office to establish regulation ``implementing mechanisms to 
prevent harassing or improper use of the Copyright Claims Board by 
any party'').
    \162\ The Office is also committed to providing clear, 
accessible guidance to the public about the CCB's rules and 
procedures, outside of its regulations.
    \163\ See, e.g., 35 U.S.C. 32 (authorizing the Patent and 
Trademark Office Director to ``suspend or exclude . . . from further 
practice . . . any person, agent or attorney shown to be in 
competent or disreputable''); 37 CFR 11.19(b) (grounds for 
disciplining or disqualifying practitioners); see also 37 CFR 1.56, 
1.97 and 1.98, 41.128, 42.11 and 42.12; U.S. Patent and Trademark 
Office, Scam Prevention, https://www.uspto.gov/patents/basics/using-legal-services/scam-prevention (including general information to the 
public and a link to a publically available complaint form).
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I. Other Subjects

    While this notification outlines a variety of issues relevant to 
implementation of the CCB, the Office welcomes input on any issues not 
specifically identified that commenters believe are appropriate and 
within the Office's regulatory authority. Commenters should be aware 
that apart from this notification, the Office intends to separately 
publish a proposed rule regarding a process to expedite a registration 
decision for an unregistered work at issue before the CCB,\164\ as well 
as a conforming technical edit to the Office's FOIA regulations.\165\
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    \164\ 17 U.S.C. 1505(d). Before the CCB renders a determination 
in any infringement dispute, the work at issue must be registered by 
the Office and the other parties in the proceeding must have an 
opportunity to address the registration certificate. But the statute 
allows a party to file a claim with the CCB before the Office has 
issued a registration, as long as ``a completed application, a 
deposit, and the required fee for registration'' have been delivered 
to the Office. Id. at 1505(a)(1).
    \165\ Id. at 1504(t)(4).
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    In some cases, the Office may defer exercising its regulatory 
authority until a later date. For example, the Office has the authority 
to limit claims regarding particular classes of works (e.g., musical 
works, audiovisual works, architectural works, etc.) that the CCB can 
hear.\166\ While the Office welcomes any suggestions regarding this 
authority now, it may delay exercising it until a later date, including 
potentially after the CCB is operational.
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    \166\ Id. at 1504(c).

    Dated: March 23, 2021.
Regan A. Smith,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2021-06322 Filed 3-25-21; 8:45 am]
BILLING CODE 1410-30-P
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