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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules
LIBRARY OF CONGRESS
Copyright Office 37 CFR Parts 201, 220, 222, 225, 226, 227, 228, 229, 230, 231, 232, and 233
Docket No. 20218

Copyright Claims Board: Active Proceedings and Evidence U.S. Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking.
AGENCY:

The U.S. Copyright Office is issuing a notice of proposed rulemaking to establish procedures governing active proceedings before the Copyright Claims Board and post-determination procedures. The proposed rule provides requirements regarding procedural practice, scheduling, conferences, discovery, written testimony, hearings, settlement, smaller claims, default and failure to prosecute, records, postdetermination procedures, and conduct of parties. The Office intends to initiate a subsequent rulemaking regarding law student representation.
DATES: Initial written comments must be received no later than 11:59 p.m.
Eastern Time on February 7, 2022.
Written reply comments must be received no later than 11:59 p.m.
Eastern Time on February 22, 2022.
ADDRESSES: For reasons of Government efficiency, the Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov.
Specific instructions for submitting comments are available on the Copyright Office website at https
copyright.gov/rulemaking/case-actimplementation/active-proceedings/. If electronic submission of comments is not feasible due to lack of access to a computer or the internet, please contact the Office using the contact information below for special instructions.
FOR FURTHER INFORMATION CONTACT:
Megan Efthimiadis, Assistant to the General Counsel, by email at meft@
copyright.gov, or by telephone at 202
7078350.
SUPPLEMENTARY INFORMATION:
jspears on DSK121TN23PROD with PROPOSALS3

SUMMARY:

I. Background On December 27, 2020, the President signed into law the Copyright Alternative in Small-Claims Enforcement CASE Act of 2020.1
1 Public Law 116260, sec. 212, 134 Stat. 1182, 2176 2020.

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The CASE Act directs the Copyright Office to establish the Copyright Claims Board CCB, a voluntary, alternative forum to federal court for parties to seek resolution of copyright disputes that have a low economic value small copyright claims.2 The CCBs creation does not displace or limit a partys ability to bring small copyright claims in federal court, but rather provides a streamlined and cost-effective alternative forum to decide those claims.3 The CCB has authority to hear copyright infringement claims, claims seeking a declaration of noninfringement, and misrepresentation claims under section 512f of title 17.4
Participation in the CCB is voluntary for all parties,5 and all determinations are non-precedential.6 Congress directed that the CCB begin operations by December 27, 2021, though the Register may, for good cause, extend that deadline by not more than 180 days.7
The CASE Act directs the Register of Copyrights to establish the regulations by which the CCB will conduct its proceedings, subject to the provisions of chapter 15 and relevant principles of law under title 17.8 On March 26, 2021, the Copyright Office published a notification of inquiry NOI inviting public comment on various aspects of the CCBs operations, which the Office noted would be established through a series of rulemakings.9 The Office has 2 See, e.g., H.R. Rep. No. 116252, at 1820
2019; S. Rep. No. 116105, at 78 2019. Note, the CASE Act legislative history cited is for H.R. 2426
and S. 1273, the CASE Act of 2019, a bill nearly identical to the CASE Act of 2020. See H.R. 2426, 116th Cong. 2019; S. 1273, 116th Cong. 2019. In developing the CASE Act, Congress drew on model legislation in the Offices 2013 policy report, Copyright Small Claims, https www.copyright.gov/
docs/smallclaims/usco-smallcopyrightclaims.pdf Copyright Small Claims. Congress also incorporated the Offices report and supporting materials into the statutes legislative history. H.R.
Rep. No. 116252, at 19; S. Rep. No. 116105, at 2.
3 H.R. Rep. No. 116252, at 17; S. Rep. No. 116
105, at 23, 9.
4 17 U.S.C. 1504c13. The CCB cannot issue injunctive relief, but can require that an infringing party cease or mitigate its infringing activity in the event such party agrees and the agreement is reflected in the proceedings record. Id. at 1504e2Ai, e2B. This provision also applies to parties making knowing material misrepresentations under section 512f. Id. at 1504e2Aii.
5 See id. at 1504a; H.R. Rep. No. 116252, at 17, 21; S. Rep. No. 116105, at 3, 11.
6 H.R. Rep. No. 116252, at 2122, 33; S. Rep. No.
116105, at 14.
7 Public Law 116260, sec. 212d, 134 Stat. at 2199.
8 17 U.S.C. 1506a1.
9 86 FR 16156 Mar. 26, 2021. Comments received in response to the March 26, 2021 NOI are available at https www.regulations.gov/document/
COLC-2021-0001-0001/comment. References to these comments are by party name abbreviated
PO 00000

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issued two previous notices 10 and one final rule 11 related to CCB procedures.
In this notice, the Office proposes procedures related to conducting an active proceeding, post-determination review, smaller claims, and the conduct of parties. The Office will issue additional proposed rules related to CCB proceedings in one or more subsequent rulemakings.
II. Proposed Rule A. Management of Parties 1. Joinder The CASE Act provides that a claim or counterclaim shall be dismissed without prejudice if the CCB determines that it is unsuitable for determination due to a failure to join a necessary party.12 The statute does not define or otherwise address procedures governing necessary parties. One comment proposed that the Office adopt Rules 19
and 20 of the Federal Rules of Civil Procedure FRCP, which speak to joinder of parties, to CCB proceedings.13
The Office has determined, however, that permitting joinder of third parties could significantly alter the nature of a proceeding and consequently could impact the notice provided to parties in some casesfor example, where a respondent declined to exercise its right to opt out based on its understanding of the parties and scope of the proceeding.
Instead, the Office proposes that existing parties who believe that a necessary third party has not been joined should raise this issue with the CCB by filing a short letter setting forth the basis of such belief. After any other party already in the proceeding has an opportunity to file an opposing letter, the CCB will evaluate the alleged deficiency and, if it determines that a necessary party has not been joined, it will dismiss the proceeding without prejudice as unsuitable. The claimant may refile its claim with the necessary party included.
The proposed rule also provides that a necessary third party may file a request to intervene with the CCB. Each party must then file a response stating whether the party agrees that the proposed intervenor is a necessary party and provide the basis for that position.
The CCB will evaluate the request and may hold a conference with all parties where appropriate, followed by Initial NOI
Comments or Reply NOI Comments, as appropriate.
10 86 FR 53897 Sept. 29, 2021; 86 FR 49273
Sept. 2, 2021.
11 86 FR 46119 Aug. 18, 2021.
12 17 U.S.C. 1506f3.
13 Am. Intell. Prop. L. Assn AIPLA Initial NOI Comments at 7.

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