Making a CASE for the Small Claims Copyright Board

Protecting a copyright can be critical to a business and content creators, but before the pandemic, it was a potentially long and costly endeavor undertaken through the federal court system. However, a new court that recently marked its first anniversary is designed to change that. 

Before passage of the CASE Act in 2020, copyright disputes were heard only in federal court. The CASE Act created a new venue, the Copyright Claims Board (CCB), which went live in June 2022. To bring a case before the CCB you must either have a copyright registration or have filed a copyright application. Ideally, the CCB provides owners and users of copyright-protected material with a vehicle to resolve disputes more efficiently, and more cheaply, as compared to federal court. 

The CCB is similar to a small claims court but with several important differences. First, while the CCB is within the Copyright Office, all proceedings are conducted remotely. A small claim in the CCB is defined as up to $30,000 in damages. One of the more important differences is that the CCB is completely voluntary. Those who bring a claim can choose to resolve a copyright dispute in federal court or before the CCB, and those defending against a claim can choose whether they want to participate in the CCB proceeding or opt-out.

The first claim submitted to the CCB was on June 16, 2022. Since then, almost 500 claims have been submitted. As of this writing, only two cases have had a final determination. More than a third of all cases submitted have been dismissed as being deficient before being served on an opposing party, and several others have been dismissed for failure to timely file proof of service on an opposing party. About 25 respondents have opted out of CCB proceedings, and about 12 respondents have received second warning notices of an impending default judgment. 

The first case to reach a final determination, Flores v. Mitrakos, received that determination in February. The parties jointly requested dismissal from the CCB and agreed that the respondent (defendant) would retract his false takedown notice by a certain date. 

The second case to reach a final determination, Oppenheimer v. Prutton, was also decided in February. The case was jointly referred to the CCB from federal court. The case related to the unauthorized use of an aerial photograph of a courthouse by an attorney on his website. The CCB found in favor of the photographer and awarded him $1,000. The specifics of the case caused the CCB to award damages on the low end of the range of possible damages. In the CCB, statutory damages range from $750 to $15,000 per work. 

10 Things to Consider Before Using the CCB

While there aren’t many decided cases at this time, the CCB’s activities do provide some guidance. Before deciding to use the CCB for small copyright claims, consider these 10 things: 

1. Designate an IP Attorney: Appointing your IP attorney as an agent to the CCB helps you to avoid missed correspondence and default judgments. 
2. Cost Savings: The fee to file a CCB claim is $100. An experienced copyright attorney can help you file a CCB claim, and the cost will be orders of magnitude lower than the cost of litigating in federal court, which is about $300,000. 
3. Time Savings: Limited discovery and other procedural approaches by the CCB reduce the time to final determination. Most CCB cases are completed in about nine months, as compared to two years in a federal court. 
4. Copyright-Specific Tribunal: The CCB is made up of three members, each with extensive experience in copyright law. This contrasts with federal court judges who are generalists. 
5. CCB Decisions are Binding: A CCB case can settle a dispute quickly and inexpensively. It is binding on the parties and cannot be re-litigated in federal court. However, a CCB case is not precedent for future CCB or federal court cases.   
6. Opt Out Process: If a respondent fails to opt-out within 60 days, a CCB proceeding will begin. If the respondent does not respond in a timely manner, they may receive a default judgment. If a respondent opts out, the case may still be filed in federal court.
7. Limited Appeals: A CCB decision can be vacated only in limited cases, such as fraud or the CCB exceeding its authority.
8. Removal from Federal Court: If both parties agree, a federal court case may be removed to the CCB resulting in a cheaper and faster resolution.  
9. Damages are Capped: Whether the damages are actual or statutory, the maximum before the CCB is $15,000 per work, or a total of $30,000. The CCB only awards attorney’s fees with a showing of bad faith. This is in contrast to uncapped damages, attorneys’ fees and statutory damages up to $150,000 per work in federal court. 
10. Injunctive Relief: Unlike federal court, the parties must both agree to injunctive relief before the CCB. The injunctive order can still be enforced by a federal court. 

The CCB appears to be doing what it set out to do, which is to expediently dispose of deficient cases, saving time and effort that would be required in federal court. 

Attorney Kimberly A.W. Peaslee, PhD, is the principal of KPIP Law, a Concord-based law firm that helps clients identify, protect and monetize their intellectual property through patent, trademark and copyright law. She can be reached through kpiplaw.com.