Quiero saber acerca de...

jspears on DSK121TN23PROD with PROPOSALS3

Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules a party identify themselves; an attorney appearance include a representation that the attorney is a member of a bar in good standing; and an attorney who is aware of bad-faith behavior committed by another attorney inform the CCB.58
The proposed rule requires attorneys or other representatives to file a notice of appearance that consists of the name of the case, the attorneys bar number where one exists in a state in which the attorney has been admitted to practice, the case number, the person on whose behalf the appearance is made, and the attorney or representatives contact information, including email address and telephone number.
Attorneys or other representatives must file a similar notice when withdrawing an appearance. Except for law student representatives, attorneys must be a member in good standing of a state, the District of Columbia, or a United States territory or commonwealth bar.
Attorneys and representatives must file a statement under penalty of perjury that they are currently qualified and authorized to represent the party on whose behalf they have appeared.
As some comments suggested, the proposed rule prohibits attorneys or representatives who have been disbarred by any court from representing parties before the CCB. If an attorney in an active or pending proceeding is disbarred after a notice of appearance is made, the attorney must report the disbarment to the CCB and withdraw representation. The proposed rule does not prohibit disbarred attorneys or representatives from representing themselves pro se where they are a party in a proceeding.
The proposed rule also makes clear that attorneys and representatives who appear before the CCB have a duty of candor and impartiality toward the CCB
and a duty of fairness towards opposing parties and counsel. The proposed rule does not establish independent rules of professional conduct. Instead, the CCB
will look to the District of Columbias rules of professional conduct and the rules in the jurisdiction in which the representative practices in determining whether an attorney or representative has breached these duties.
The proposed rule empowers the CCB
to bar attorneys or representatives who violate any of these standards of conduct, or are otherwise found to be engaging in bad-faith conduct, from representing parties before the CCB for twelve months. The Office agrees with commenters that such a provision is 58 Copyright Alliance, et al. Initial NOI Comments at 42.

VerDate Sep<11>2014

19:27 Dec 07, 2021

Jkt 256001

advisable, and believes the Register has the authority under section 1506a1 to prescribe regulations governing the conduct of attorneys in proceedings before the CCB. Such authority would seem to necessarily include the ability to temporarily bar attorneys from appearing before the CCB. Furthermore, the statute expressly authorizes a twelve-month bar for parties who engage in repeated bad-faith conduct,59
and defines the term party to include the attorney of a party, as applicable. 60 The Office invites comments concerning the CCBs authority to discipline or bar attorneys or representatives in this way and whether there are any other methods available to the CCB that should be considered.
5. Limitation on Cases The statute provides the Office with the option of establishing regulations to limit the number of proceedings a party may bring each year in the interests of justice and the administration of the Copyright Claims Board. 61 Congress explained that this power functions as both a docket management tool . . . and as protection against abusive conduct. 62 In the NOI, the Office indicated its expectation that it would exercise this authority, subject to reevaluation after the CCB is able to determine the size of its workload.63
The Office sought public comment relating to the initial limitation of the permitted number of proceedings a claimant may file each year.64
Commenters were generally supportive of a limit on the number of claims a party may bring in a year, and suggested limits that ranged from two to four hundred cases.65 A few commenters opposed a limit due to concerns that it would disproportionately disadvantage claimants who hold copyrights in many works 66 or that a strict limitation would run the risk of being arbitrary and capricious.67 One commenter suggested 59 17

U.S.C. 1506y.
at 15013B.
61 Id. at 1504g.
62 H.R. Rep. No. 116252, at 31.
63 86 FR 16164.
64 Id.
65 CCIA & IA Initial NOI Comments at 6 10
cases; Copyright Alliance, et al. Initial NOI
Comments at 41 20 cases for first year, with discretion to permit more cases for good cause and in interests of justice; Davis Jr. & Luce Initial NOI
Comments at 3 two cases seeking damages over $2500; George LaBonty Initial NOI Comments at 1;
Univ. of Mich. Initial NOI Comments at 67 10
12 cases; Verizon Initial NOI Comments at 67
four cases.
66 MPA, RIAA & SIIA Initial NOI Comments at 1920.
67 Science Fiction and Fantasy Writers of Am.
Reply NOI Comments at 6.
60 Id.

PO 00000

Frm 00007

Fmt 4701

Sfmt 4702

69895

a similar restriction be imposed on firms and agents, prohibiting them from representing more than one claim per client per year.68 Other commenters suggested certain exemptions from the limitation, including for counterclaims,69 for proceedings where a respondent ultimately opts out or that otherwise do not become active,70 and for organizations acting on behalf of multiple rights holders.71 One commenter suggested that the Office consider the financial situation of the claimant and the market price of the infringed work in determining the limit.72
Upon consideration of these comments, the Office has proposed a requirement that a party may file no more than ten proceedings in any twelve-month period. The Office believes this limit will help to ensure that the CCB is able to effectively manage its docket, particularly given that the Office has not proposed an upper limit on the total number of proceedings that may be pending before the CCB, as discussed further below.
The Office also seeks to avoid the possibility that proceedings may be overwhelmed by just a few claimants. A
private attorney or law firm may represent a claimant in no more than forty proceedings in any twelve-month period. A proceeding will count toward this limitation as soon as it is filed, regardless of how it is resolved e.g., even if it is found noncompliant or unsuitable, is voluntarily dismissed, or is dismissed due to a respondents opt out. However, amendments to a claim or the filing of counterclaims will not count toward this limit. Any action taken for the sole purpose of avoiding this limitation will constitute bad-faith conduct under the proposed rule. At this time, the proposed rule does not limit the maximum number of total proceedings that may be filed before the CCB by all parties combined.
The proposed rule also provides the CCB with the ability to impose a temporary limitation on the number of proceedings that may be pending before it or the number of proceedings that a party or representative may have pending before the CCB in a twelvemonth period. Such a limitation would remain in place for a period that may not exceed six months in the absence of a notice and comment rulemaking. This 68 Verizon
Initial NOI Comments at 67.
Alliance, et al. Initial NOI Comments
69 Copyright
at 41.
70 Id. at 4142; MPA, RIAA & SIIA Initial NOI
Comments at 20.
71 Copyright Alliance, et al. Initial NOI Comments at 41.
72 Niskanen Center Initial NOI Comments at 5.

E:FRFM08DEP3.SGM

08DEP3