Copyright Claims Board: Mid-January Update

The Copyright Claims Board, the new tribunal for small copyright claims in the Copyright Office, started accepting claims last June 16. As of January 11, there have been 281 claims filed (plus seven so far in 2023.)  Of those filed, there have been 145 orders from the Board dismissing the claim, 84 amended claims, and 16 opt-outs.

Significantly, there have only been eleven Scheduling Orders – cases declared active by the Board – most within the last month. This is the first step in a case after the claimant has successfully jumped through all the hoops necessary to follow the Board’s procedures (including paying the full $100 fee.) The order schedules a timetable for the next steps, starting with the respondent’s response to the claim.

Things move slowly at the Copyright Clearance Board, but that’s actually the way it was designed. Both claimants and respondents have plenty of time to act, and, at least theoretically, everyone should have enough time to take the actions that are required of them in the process.

There still aren’t many book related cases. There are only 10 claims identified as “literary,” defined “such as fiction, nonfiction, poetry, reference works,” and the ones that have moved forward mostly involve publishers who appear to continue to publish books after the contract has terminated.  They involve Amazon, Dorrance, a Vanity Publisher, and Disney.  A new one I’ll talk about later has a claim against Author Solutions, a major vanity publisher that operates under many names.

In my earlier updates, I’ve focused on three early cases that involve books. Of those three, two have reached a point where actual proceedings are about to begin, and one appears to be nearing the end of the road.

Case 1 (Docket #22-CCB-0086), has hit a snag that may get it tossed out. On December 22, the claimant received their second order to fix a non-compliant claim. Their first amended claim “cannot move forward because there are not enough allegations that Amazon Services LLC engaged in conduct that would hold it liable either directly for copyright infringement or for their activities as an online service provider (OSP).” The order includes what the claimant must do to get the claim accepted: “You will need to clarify in your amended claim whether the respondent engaged in conduct outside the scope of the Section 512 safe harbors or directly engaged in infringing activities.” If the claimant wants to proceed, they must file a second amended claim by January 23, 2023. It looks like Amazon may be off the hook, but we will see….

In Case 2 (Docket #22-CCB-0015) (one of the first cases filed back in June), a publishing imprint, The High Street Publishing Company, is accusing several publishing imprints of The Disney Company of reprinting an author’s books as ebooks after all rights had contractually reverted to the author. It represents a good example of the kind of rights problems authors run into after rights reversion, where the publisher either doesn’t know (or doesn’t have the paperwork) that the rights were reverted and the contract was terminated. It’s important to note that sometimes in cases like this there will be language in the contract that presents a loophole for the publisher to jump through, but on the face of it this looks like a valid claim.  As many of you know, SFWA is still pursuing Disney for similar contract violations through its #DisneyMustPay campaign.

So where are we now with the Disney case? After a misstep, the CCB extended the opt-out period for Disney until December 5. Almost immediately, Disney requested to link Shani Thome, Principal Counsel of the Walt Disney Company according to LinkedIn, to the case. On December 6, one day after the opt-out period ended, plaintiff was ordered to pay their Second Filing Fee and on December 7, they did. (The CCB requires plaintiffs to pay $60 to start a case and then an additional $40 if the respondent doesn’t opt out.) A Scheduling Order was issued by the CCB on January 9, ordering the respondent to file a response by February 8. This will be the first time one of the claimants we’re following has gotten to this point, so stay tuned!

Case 3 (Docket #22-CCB-0113): One notable thing has happened since the last update. On October 28, vanity publisher Dorrance was successfully served notice of the proceeding. This service includes the initial notice, the approved claim, and an opt-out notification form for the respondent. Dorrance did not respond, so the second notice (a reminder that is part of the process) was sent by the CCB on November 10. The sixty day opt-out deadline for Dorrance passed so they were automatically opted in.

On January 3, the author claimant paid their Second Filing Fee. On the tenth, there was a request to link George Crompton to the case, but after an intensive search, Writer Beware failed to turn up his identity. We expect that the CCM will issue a Scheduling Order shortly.

The “new” case against Author Solutions (Docket #22-CCB-0261) filed its claim on December 10. The claim involves the sale of the author’s books after the rights were reverted. On Jan 9, the CCB issued a Notice of Compliance indicating that the claim was in the proper form and ordered the claimant to serve the respondent and give them their First Notice of the claim. That’s the second big hurdle for a claimant.

Without in any way judging the validity of the complaint, there are some things about this one that raise alarms. For one thing, that claim is made against AuthorHouse, while all the documentation refers to Author Solutions and the original publisher iUniverse. And we were unable to find anything online at this time to confirm that Author Solutions was involved in “sale of both… hardback and Kindle editions of the book” after the contract terminated. However, the original publication was in 2012, so it’s certainly possible that the evidence of those sales is no longer on the web.

In any case, we’re thinking of putting out an alert to let authors know that just because physical books are being sold on Amazon, it doesn’t mean that they are being sold by the original publisher or that the contract termination is being violated, even if the books are identified as “new.” It can be quite confusing, but there are any number of possible sellers for out of print remaindered or used books that can appear on Amazon and other sites after the author’s rights revert.

So, again, stay tuned for future developments. The CCB has finally entered the phase where it’s going to start ruling on claims, and we hope to report results from our sample cases in the near future.

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