Update: The Copyright Claims Board At the Three-Month Mark

As Writer Beware wrote about a couple of months ago, the US Congress has created a tribunal (the Copyright Claims Board – CCB) administered by the US Copyright Office for small claims-size copyright decisions. It began operations on June 16.

Its charter called for transparency of process and one of the fascinating things about it so far is that it is possible to see in almost real time the docket of cases that have been submitted to it. After 3 months, as of today, the 16th of September, there are 149 cases. They are a mixed bag, to be sure, but a few preliminary conclusions can be reached.

• The CCB has not been overwhelmed by hundreds of cases.

• There are very few cases filed by individuals against individuals posting copyrighted material on the Internet. Most are against companies.

• Most of the cases are being filed for infringement by photographers, graphic artists, and, to a lesser extent, musicians. Photographers filed a number of cases through lawyers, although a lawyer is not necessary.

• There is a sprinkling of filings that seem to be from cranks who misunderstand the purpose of the CCB and/or what it can do. Some have no indication of the party who must be served to initiate the proceedings.

• Not surprisingly, considering the newness of the process and built-in delays, these cases are taking time. Many claimants have had to file amended claims, presumably because of some irregularity in their initial filing. Of the first 100 claims, 24 have been found compliant and were directed to move to the next stage, serving notice to the respondent. Three were dismissed without prejudice. Twenty new claims were added to the docket in August and thirteen so far in September. At this rate, it appears that a backlog will accumulate rapidly, and to the best of my knowledge, the CCB hasn’t indicated what happens then. As they get up to speed, they may be able to catch up and keep up.

• So far, there has been no major outcry on social media about the CCB’s cases or decisions. The only major case so far that has received much attention is because it was the only one filed by a large corporation, Paramount Pictures. The case is interesting, too, because it involves the use of images and names of a MacDowell’s, a parody of Macdonald’s restaurant in the films Coming to America and Coming 2 America, in a pop-up recreation of the restaurant. (The Coming to America films already have a history of litigation–though in the previous case, Paramount was the defendant.)

Of the cases that involve writers, only three may be of special interest to the readers of Writer Beware.

The first could have stepped directly out of the pages of the Writer Beware blog (and indeed, involves a publisher about which Writer Beware has gotten a number of complaints). An author signed a contract with Next Century Publishing. The book was published, and 6 months after the release date, the publisher emailed the author saying the company was closing down and the book’s files would be returned to author. Of course, the files were never returned, royalties were never paid, and the book is still for sale on Amazon and B&N. The author mentions that this is the second time they’ve been “taken advantage of by a publishing company.”

The second is more like a case out of Disney Must Pay, although it is also reminiscent of a situation not uncommon to authors who revert their rights from large corporations. In this, an author had a series of books published by various arms of a large publishing corporation and, when those books went out of print, reverted the rights and found a new publisher. Unfortunately, although this corporation no longer had any right to do so, it continued selling the two books on OverDrive for almost eight years after the rights to do so had reverted to the author.

The final book-related case worth noting was filed against the vanity press Dorrance for continuing to sell the author’s book on Google Play after the author “ended the contract” with Dorrance. The author did not include a copy of the contract or reversion letter in the claim.

These three claims may be typical of how the CCB will work for writers (or, they may not.) It’s too early to say, for example, if the respondents will opt out, or, in the case of the first, if the respondent can even be identified and served. There is some question as to whether the CCB will reject claims that involve contract disputes as opposed to plain infringement. In the case of at least two and possible all of the examples I found, the contract had terminated and was no longer relevant to the infringement.

Writer Beware strongly recommends that any such claim against a publisher should include a copy of the contract and/or the reversion letter and the author should clearly spell out that the rights being infringed were no longer under contract to the publisher.

SFWA’s Legal Affairs Committee submitted several comments to the Copyright Office in response to its Notices of Inquiry concerning implementation of the CCB, and it’s encouraging to see that the process is as transparent as we had hoped it would be. The first two months of its operation probably aren’t representative, but the committee is happy to see that none of the disastrous outcomes predicted by some do not seem to be happening.

Of course, it could be that the vast majority of potential claimants are simply waiting to see how the CCB works (or doesn’t) before they jump in, and there’s no guarantee that bad faith actors aren’t waiting in the wings. We will continue to watch as the number of claimants grows and cases are decided. So far, only six respondents have opted out, meaning that the case is over as far as the CCB is concerned. It’s still impossible to say what percentage of respondents will ultimately opt out, which will define the utility of the CCB going forward.

UPDATE 10/25/22: After another month, the three book-related cases mentioned in the blog post are slowly progressing through the system. All three claimants have had to file amended claims after their first submission contained errors. This appears to be a very common situation among all the claims. There’s also a glimpse of the power of the opt-out option.

Case 1 (22-CCB-0086 ): On October 21, the CCB issued an order to amend the original claim, which was found to be noncompliant because of two problems: “Amazon Legal Department was listed as the respondent for the claim rather than “Amazon.com Legal Services LLC,” the proper respondent entity. The CCB points out that the proper entity has a service agent listed in their Designated Service Agent Directory. Secondly, the CCB points out that the claimant hasn’t sent a Section 512 (DMCA) takedown notice, which is required before filing a claim. The respondent is given until November 21 to correct these errors.

Case 2 (22-CCB-0015): This case breezed through the initial procedures but hit a snag when the CCB itself seems to have sent a follow-up opt-out reminder that included a misstatement about the deadline for responding, so the deadline was extended to November 26.

Case 3 (22-CCB-0113): After the CCB requested and the claimant submitted a corrected claim, the CCB accepted the claim and directed the claimant to serve the respondent according to CCB procedures on October 6.

Opt-out (22-CCB-0013): A fourth book-related claim involved a case filed against Ingram Content Group & Lightning Source for distributing and selling a book before it was finished and ready for distribution and refusing to stop. Both Ingram and Lightning Source opted-out and the case was dismissed without prejudice.