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New CASE Act Claim Procedures

April 12, 2022

Intellectual Property Rights Concept, Copyright Infringement

Content creators in the United States will soon have a new option to recover money damages for copyright infringement. The Copyright Alternative in Smalls-Claims Enforcement (CASE) Act was passed in December 2020 and allows a copyright holder to file an administrative claim with the U.S. Copyright Office to recover up to $30,000 in damages for infringement by copyright thieves. Since then, administrators have been drafting the regulations that will govern how these proceedings will work.

Effective April 25, 2022, the U.S. Copyright Office (“Office”) is adopting a rule which sets forth the procedures for the bringing claims, opting out of proceedings, and filing responses under the new Copyright Claims Board (“CCB”) created by the CASE Act. As an alternative to expensive and time-consuming federal court litigation, the CCB is a voluntary, administrative forum for resolving certain copyright disputes valued at $30,000 or less.

I. Fees

The rule adopts a two-tiered fee structure which requires a $40 filing fee followed by a $60 payment once all respondents have been served and the opt-out period expires (see below). This structure was intended to ensure that the fees for filing a claim under the CCB are not cost prohibitive while also being costly enough to deter frivolous claims. There is no fee to file a counterclaim.

II. Initiating Claims

Claims must be filed electronically and must include the identity of the parties, the category of the work, the registration status of the work, the type of claim, the harm experienced, the relief sought, other relevant facts, along with an affirmation confirming the accuracy of the information in the claim.

The Office will issue educational materials to assist claimants in filing claims. The CCB will review the claims to determine if sufficient information has been provided to place the respondent on notice. If not, the CCB will require the claimant to provide more detail. Claims by pro se (unrepresented) claimants will be construed liberally to satisfy the review requirements.

III. Contact Information

In an effort to facilitate settlements and discovery, claimants and respondents must provide their (or their attorney’s) phone number, email address, and mailing address. Generally, the claimant must also provide the respondent’s address. However, this requirement can be waived if the claimant can show that the 3-year statute of limitations is likely to expire within 30 days of filing the claim. In such cases, the claimant will have to provide the respondent’s address before the claim can continue but not at the time of filing.

IV. Unsuitability

A party may request dismissal of a claim or counterclaim for unsuitability, at any time. The CCB may also raise the issue. The opposing party will have the opportunity to respond.

V. Notices

An initial notice of proceeding will be created by the CCB but must be served by the claimant on the respondent along with the claim. The initial notice will describe the CCB, the nature of CCB proceedings, basic information about the claim and claimant, the respondent’s right to opt out, the consequences of opting out or proceeding, as well as information on how to learn more about copyright and the CCB, available defenses, and differences between federal litigation and CCB proceedings. The initial notice will also include references to pro bono legal assistance. Proof of service (or waiver) must be filed within seven days of service.

Further, claimants must not include with the service of the initial notice any additional substantive communications such as settlement demands or exhibits that were not filed as part of the claim. Good faith settlement discussions are encouraged during the opt-out period but must occur separately from service.

A second notice of proceeding will be issued by the CCB to the respondent no later than 20 days after the claimant files proof of service or a completed waiver, provided the respondent has not opted out. The second notice mirrors the initial notice in substance.

VI. Designated Agents

The Office is currently considering a separate rule which would allow corporations, partnerships, and other unincorporated associations to designate agents to receive service of the initial notice and claim. If a designated agent is listed, the claimant must serve the claim upon that agent.

VII. Waiver

Claimants may send a request, by mail or other reasonable means, that the respondent sign a waiver of personal service which is provided by the CCB.

VIII. Opt Out Procedures

To opt out of a CCB proceeding, the respondent must file a paper or electronic form and provide the docket number, verification code, certain identifying information, and a signed affirmation.

Respondents may request an extension of the 60 day opt out period when in the interests of justice.

Claimants generally cannot refile a claim for the same acts or theories of recovery after a respondent opts out. However, if the respondent opts out and later changes their mind in favor of proceeding before the CCB, the claimant may refile the claim with the respondent’s consent.

IX. Responses

Responses must be electronically filed and contain identifying information and details concerning the dispute (including any defenses and relevant evidence), along with a certification that the information provided in the response is accurate and truthful. The Office will provide respondents with a list of common defenses in the form and its educational materials.

X. Counterclaims

Respondents may file counterclaims that (i) arise from the same transaction or occurrence as a claim, and (ii) implicate copyright or an agreement affecting the relief to be awarded. Counterclaims must be asserted in the response, unless good cause exists for allowing a later counterclaim. Once a response with a counterclaim is filed by the respondent, a claimant may not withdraw or opt out from the CCB proceeding.

XI. Conclusions

Content creators should familiarize themselves with this new option for combatting piracy of their valuable content and consider pursuing claims were appropriate. The new CASE Act procedures are quicker and far less expensive than federal court litigation. Media outlets and online platforms should likewise evaluate potential designation of an agent for receiving notice of claims to avoid lost or misdirected notices which could result in up to $30,000 in liability if not addressed.

Walters Law Group represents content creators throughout the world in connection with intellectual property enforcement issues. Nothing in this article is intended as legal advice. For further information you may contact us here: https://www.firstamendment.com/contact-us/ or on social media @walterslawgroup

How do I file a CASE Act claim?

Copyright infringement claims under the CASE Act will be filed with the new Copyright Claims Board (“CCB”) created by the statute for resolution of claims that do not exceed $30,000 in damages. Claims seeking more than $30,000 must be filed in federal court.

What is the CASE Act?

The Copyright Alternative in Smalls-Claims Enforcement (CASE) Act was passed in December 2020 and allows copyright holder to file an administrative claim with the U.S. Copyright Office to recover up to $30,000 in damages for infringement by copyright thieves…As an alternative to expensive and time-consuming federal court litigation, the CCB is a voluntary, administrative forum for resolving certain copyright disputes valued at $30,000 or less.

Where are copyright cases heard?

Ordinarily, copyright infringement cases must be litigated in United States District Courts. However, the CASE Act will allow for filing of administrative complaints with the new Copyright Claims Board (“CCB”) which can resolve claims that do not exceed $30,000 in damages.