Taking legal action if your copyright is infringed can be complicated and confusing–not to mention expensive. Suing an infringing party, which must be done in federal court, can rack up enormous legal fees, and take years to resolve. (For instance, the Authors Guild estimates that the average cost of a copyright suit is $400,000–often more than the value of the claim itself.) And there’s no guarantee of success. It’s a situation that, for many creators, renders their rights under copyright essentially unenforceable.
Traditionally in the USA, such suits have been creatives’ only avenue of redress. Now, though, there’s an alternative: the Copyright Claims Board (CCB), which opened for business yesterday.
Established by Congress in 2020 via the CASE Act, the CCB is a small claims court for copyright disputes, where creators can bring lower-dollar infringement claims (monetary damages are capped at $30,000) without having to hire an attorney or make a court appearance (proceedings are conducted entirely online). The CCB is housed within the US Copyright Office, and staffed by a three-person tribunal that oversees proceedings and is the final decision-maker on claims.
The CCB can hear three types of claims: copyright infringement claims, claims of misrepresentation in DMCA takedown notices, and claims seeking a declaration of non-infringement (if you’re falsely accused). You must file your claim within three years of the infringing activity (the time period stipulated by the US Copyright Act), and you must previously have registered your copyright in order to file (per its FAQ, the CCB doesn’t require registration to have been completed, but you must at least have submitted an application).
To start a claim, you must register with the CCB’s electronic filing and case management system, and pay a modest fee. The claim then proceeds in phases, including discovery (sharing info about and documentation of your claim with all parties), proving your claim (via written statements and supporting evidence), hearings and conferences (which may not happen in all cases), and a final determination by the CCB, which is considered binding.
Having a less complicated, less expensive, and easily accessible alternative to costly court action is of obvious benefit to creators, especially in a world where technological advances are constantly expanding the frontiers of copyright infringement. The result of years of advocacy by the Authors Guild and other creators’ organizations, including SFWA, it’s an important step forward for creators’ rights. However, there are a couple of catches.
As noted above, CCB decisions are generally considered binding, and you have very limited options for review or appeal if a decision goes against you. The process may be simpler and cheaper than taking an infringer to court, but as with a court case, there are no guarantees, and much will depend on how strong your case is and how well you make it.
The second catch is more significant. Participation in CCB proceedings is voluntary. You can file a case–but the respondent can decide to opt out. They can’t just ignore you: if they do, the CCB may enter a default judgment against them. But they can say “no”. If that happens, the case is done. You do still have the option of going to court, but your CCB claim will go no farther.
If you’re thinking that allowing infringers to remove themselves from the hook undercuts the entire concept of the CCB, well, I agree. This was an argument made by creators’ organizations during the rules-making process: if an accused infringer can say “Nope, not participating”, isn’t it likely that many of them will say that, in which case, what’s the point? It also isn’t clear what happens if the CCB renders a decision in a creator’s favor, and the infringer simply doesn’t cooperate. The CCB’s powers appear to be limited: for instance, it can stipulate that an infringer is required to comply with an action it has agreed to during a case’s proceedings, but it can’t issue orders or injunctions barring an infringer from engaging in infringing activities. And double jeopardy is attached: if you win your claim with the CCB, you cannot then take the same claim to court.
On the other hand, it’s possible that avoiding court, with its large legal fees and possibly much larger damage awards, will be as much an incentive for infringers to cooperate as it is for creators to use the CCB system. Bottom line: we won’t know for sure until we see the CCB in action.
Potential flaws and all, the CCB offers an exciting new option for creators needing to enforce their rights. Hopefully many will use it. I’ll be keeping a close eye on the CCB, and will update this post as information comes in.
UPDATE 6/18/22: An important comment and advice from Writer Beware’s Michael Capobianco on the issue of copyright trolls and their potential use of the CCB to harass creators. (If you aren’t familiar with the term, here’s a brief explanation and a longer one):
As you mention, SFWA’s Legal Affairs Committee did some lobbying for the bill despite the potential drawbacks and submitted comments to the Copyright Office in response to specific Notices of Inquiry. There are so many variables it’s very difficult to predict how or even whether the CCB will be able to help writers. Many of our comments were directed at preventing the abuse of the process by “copyright trolls” — making it transparent enough that people who are totally ignorant of the law can’t be tricked into paying settlements. It’s certainly possible that some writers will receive spurious claims from these trolls, and my opinion is that at least during the shake-out period of the CCB, anyone who receives a notice of infringement should automatically opt out.
Also this, from a reader with legal expertise:
There are no consequences to a respondent who ignores proceedings of which it merely “becomes aware” unless it is formally served. So, if the miscreant is hiding behind an “anonymous registrant” shield for WhoIs, and provides no other direct contact information, they CAN ignore the proceedings until they’re tagged and there’s an effective return of service. This is a fundamental principle of the enforceability of judgments — that a judgment against _a party_ who had no notice of proceedings, and therefore no opportunity to contest (or refuse, as in this instance), is void ab initio and without effect.