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lotter on DSK11XQN23PROD with PROPOSALS1

53906

Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Proposed Rules
provider as defined in 17 U.S.C.
512k1B for infringement by reason of the storage of or referral or linking to infringing material that may be subject to the limitations on liability set forth in subsection 17 U.S.C. 512b, c, or d, an affirmance that the claimant has previously notified the service provider of the claimed infringement in accordance with 17 U.S.C. 512b2E, c3, or d3, as applicable, and that the service provider failed to remove or disable access to the material expeditiously upon the provision of such notice;
6 For a claim asserted under paragraph b2ii of this section i The name of the party who is asserting that the claimant has infringed a copyright;
ii The following information for each work alleged to have been infringed, to the extent known to the claimant:
A The title;
B If a copyright registration has issued for the work, the registration number and effective date of registration;
C If an application for copyright has been submitted, but a registration has not yet issued, the service request number SR number and registration application date; and D The works category, as set forth 17 U.S.C. 102, or, if the claimant is unable to determine which category is applicable, a brief description of the nature of the work;
iii A brief description of the activity at issue in the claim, including:
A Any exclusive rights as set forth in 17 U.S.C. 106 that may be implicated;
B The beginning and ending dates of the activities at issue;
C Whether the activities at issue have continued to the date the claim was filed;
D The names of the persons involved in the activities at issue; and E Where the activities at issue occurred;
iv A brief statement describing the reasons why the claimant believes that no infringement occurred, including any relevant history or agreements between the parties and whether any exceptions and limitations as set forth in 17 U.S.C.
107 through 122 are implicated;
7 For a claim asserted under paragraph b2iii under this section i The sender of the notification of claimed infringement;
ii The recipient of the notification of claimed infringement;
iii The date the notification of claimed infringement was sent;
iv If a counter notification was sent in response to the notification
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A The sender of the counter notification;
B The recipient of the counter notification;
C The date the counter notification was sent; and D A description of the counter notification;
v The words in the notification or counter notification that allegedly constituted a misrepresentation;
vi An explanation of why the identified words allegedly constituted a misrepresentation; and vii An explanation of how the alleged misrepresentation caused harm to the claimants;
8 A statement describing and estimating the monetary harm suffered by the claimants as a result of the alleged activity. For claims of infringement, this statement may address the copyright owners actual damages and the profits received by respondents that are attributable to the alleged infringement;
9 Whether the claimant requests that the proceeding be conducted as a smaller claim under 17 U.S.C. 1506z and 37 CFR part 226, and would accept a limitation on total damages of $5,000
if the request is granted; and 10 A certification under penalty of perjury that the information provided in the claim is accurate and truthful to the best of the certifying partys knowledge.
The certification shall include the typed, printed, or handwritten signature of the claimants, and if the signature is handwritten it shall be accompanied by a typed or printed name.
d Additional matter. The claimant may also include, as attachments to or files accompanying the claim:
1 A copy of the certificate of copyright registration for a work that is the subject of the proceeding;
2 A copy of the allegedly infringed work. This copy may also be accompanied by additional information, such as a hyperlink, that shows where the allegedly infringed work has been posted;
3 A copy of the allegedly infringing material. This copy may also be accompanied by additional information, such as a hyperlink, that shows any allegedly infringing activity;
4 A copy of the notification of claimed infringement that is alleged to contain the misrepresentation;
5 A copy of the counter notification that is alleged to contain the misrepresentation; and 6 Any other exhibits that play a significant role in setting forth the facts of the claim.

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222.3 Content of initial notice to respondent.

a Content of initial notice. The initial notice to the respondent shall be prepared using a form made available by the Copyright Claims Board that shall 1 Include on the first page a caption that identifies the parties and includes the docket number assigned by the Board;
2 Be addressed to the respondent;
3 Identify the claimant and provide a mailing address and other contact information for the claimant or, if the claimant is represented by counsel, the claimants counsel;
4 Advise the respondent that a legal proceeding has been commenced by the claimants in the Board against the respondent;
5 Identify the nature of the claims asserted against the respondent, which shall consist of at least one of the following:
i A claim for infringement of an exclusive right in a copyrighted work provided under 17 U.S.C. 106;
ii A claim for a declaration of noninfringement of an exclusive right in a copyrighted work provided under 17
U.S.C. 106 ; and iii A claim under 17 U.S.C. 512f for misrepresentation in connection with a notification of claimed infringement or a counter notification seeking to replace removed or disabled material;
6 Describe the Board, including that it is a three-member tribunal within the Copyright Office that has been established by law to resolve certain copyright disputes in which the total monetary recovery does not exceed $30,000;
7 State that the respondent has the right to opt out of participating in the proceeding, and that the consequence of opting out is that the proceeding will be dismissed without prejudice and the claimant will have to determine whether to file a lawsuit in a federal district court;
8 State that if the respondent does not opt out within 60 days from the day the respondent received the initial notice, the consequences are that the proceeding will go forward and the respondent will i Lose the opportunity have the dispute decided by the federal court system, created under Article III of the Constitution of the United States; and ii Waive the right to have a trial by jury regarding the dispute;
9 State that the notice is in regard to an official government proceeding and provide information on how to access the docket of the proceeding in the Boards electronic filing system;

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