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Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Proposed Rules
will constitute default. The triggering event for responding to a counterclaim, however, is the notification by a Copyright Claims Attorney that the counterclaim is compliant,103 rather than the issuance of a scheduling order.
When a respondent files a counterclaim, a Copyright Claims Attorney must conduct the same compliance review that occurs after the filing of an initial claim. If the counterclaim is found to be compliant, the Board will provide notification of compliance, which will begin the counterclaim respondents thirty-day period to respond. The Board then will issue a new scheduling order updating the prior due dates as appropriate.
The proposed rule does not provide a mechanism for the respondent to the counterclaim to opt out of the proceeding. The Office encourages comment on this issue, including as to whether such a process is permitted under the statute. The Office notes that Congress did not set forth a procedure for opting out of a counterclaim, in contrast to the detailed procedure set forth for the respondents initial ability to opt out. It also is noteworthy that Congress has limited allowable counterclaims to those arising from the same transaction or occurrence, and has further limited such claims to those implicating copyright or an agreement affecting the relief to be awarded to the claimant.104 Accordingly, there arguably should be no surprise for the claimant when a counterclaim is asserted. For example, a claimant who brings an action before the CCB seeking a declaration of noninfringement of a work could reasonably expect a counterclaim for infringement of that same work. As the claimant has already voluntarily submitted to, and in fact requested, the CCB to take up the general issue at hand, having an opt-out procedure for counterclaims potentially could constitute an inefficient use of time and resources.

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I. Fees
1. Fee for Filing a Claim To commence a proceeding before the CCB, a claim must be accompanied by a filing fee in such amount as may be prescribed in regulations established by the Register of Copyrights. 107 The Office is given upper and lower limits to the filing fees it may assess: the sum total of filing fees must not be less than $100 or exceed the cost of filing an action in a district court of the United States, 108 currently $402.109 The Office understands the sum total of filing fees to consist of the two filing fees indicated in the statute: The filing fee for the initial claim 110 and the filing fee to request review of a final determination by the Register.111 The amount of fees must further the goals of the Copyright Claims Board. 112
The Office proposes an initial claim filing fee of $100 in the interest of facilitating access to the CCB. Given Congresss goal of ensuring that the CCB
be accessible to the widest constituency possible,113 the Office believes it is appropriate to keep the fee at the statutory minimum.
The Senate Report proposed in a footnote that the Office consider a twotiered fee structure, with an initial fee assessed when the claim is filed and a second fee assessed after the claim becomes active.114 After consideration, the Office has not included such a framework in the proposed rule. First, it is not clear that the Office has the statutory authority to split fees in this way. While the statute expressly provides for a fee to initiate a claim,115
it does not require a separate fee for a proceeding to become active.116
Furthermore, if the Office were to establish a system in which it charged less than $100 for the first tier, and the claimant did not move on to the second tier, the total filing fees would not reach 107 Id.

The Register has general authority to set fees for Copyright Office services,105
and is specifically directed to set certain fees related to CCB proceedings.106
Here, the Office sets forth proposed fees relating to the CCB rules included in this notice. The Office will propose additional fees in subsequent 103 17 U.S.C. 1506f2 stating that when the Copyright Claims Attorney finds a counterclaim to be compliant, the counterclaimant and such other parties shall be so notified.
104 Id. at 1504c4.
105 Id. at 708.
106 Id. at 15011.

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rulemakings for the services addressed in those proceedings.

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at 1506e3.
at 1510c.
109 The statutory fee for filing suit in a federal district court is $350, 28 U.S.C. 1914a, and an additional fee of $52 is charged as an administrative fee by the Judicial Conference of the United States.
Id.
110 17 U.S.C. 1506e.
111 Id. at 1506x.
112 Id. at 1501c.
113 H.R. Rep. No. 116252, at 17; S. Rep. No. 116
105, at 910.
114 S. Rep. No. 116105, at 4 n.4.
115 17 U.S.C. 1506e3.
116 Id. at 1506i If proof of service has been filed by the claimant and the respondent does not submit an opt-out notice to the Copyright Claims Board within that 60-day period, the proceeding shall be deemed an active proceeding..
108 Id.

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the statutory floor. The Office invites comment on these issues.
For similar reasons, the Office does not currently propose a fee for a counterclaim. In contrast to the statutory provisions relating to a claim, the CASE Act contains no express authorization for the Office to charge fees for a counterclaim. The Office also notes that fees for counterclaims are not required in federal district court, although some state courts do assess such fees.117 The Office welcomes comment on this matter as well.
2. Fee for Designated Service Agents As part of its authority to maintain a directory of service agents, the Office may require . . . corporations, partnerships, and unincorporated associations designating . . . service agents to pay a fee to cover the costs of maintaining the directory. 118 As discussed in the NOI,119 the designated service agent directory will be similar in nature to the Offices existing DMCA
designated agent directory. The fee for adding an entry to the DMCA
designated agent directory is $6.120 This amount was selected, despite an estimated $52 operating cost, in part due to the elastic nature of demand for the DMCA directory.121 The Office anticipates that the demand for the CCB
designated service agent directory will be similarly elastic, if not more, given that participation in the designated service agent directory is not a statutory requirement. The proposed rule accordingly sets a $6 fee for designation of a service agent for CCB purposes. The Office believes that setting the fee at this low level will encourage participation by corporations, partnerships, and unincorporated associations, which in turn will produce a robust database that benefits claimants and respondents alike.
List of Subjects 37 CFR Part 201
Copyright, General provisions.
37 CFR Part 220
Claims, Copyright, General.
117 See, e.g., Maryland Courts, District Court of Maryland Cost Schedule DCA109, rev. 2018, https www.courts.state.md.us/sites/default/files/
import/district/forms/acct/dca109.pdf assessing $18.00 for a small claims cross claim; Superior Court of California, Statewide Civil Fee Schedule 2014, https www.courts.ca.gov/documents/
filingfees.pdf assessing fees for the answer or other first paper filed by a party other than plaintiff.
118 17 U.S.C. 1506g5B.
119 86 FR 16160.
120 37 CFR 201.3c23.
121 Booz Allen Hamilton, 2017 Fee Study Report 26 2017, https www.copyright.gov/rulemaking/
feestudy2018/fee_study_report.pdf.

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