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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules
jspears on DSK121TN23PROD with PROPOSALS3

parties. The Office is also interested in comments concerning whether it has the authority to issue any monetary sanctions specifically related to a discovery dispute.
D. Evidence The statute sets out specific categories of evidence that the CCB may consider in making a determination:
Documentary and other nontestimonial evidence, sworn written testimony, and oral testimony taken at a hearing.135 In exceptional cases, expert witness testimony or other types of testimony may be permitted for good cause shown.136 Testimony may be admitted without application of formal rules of evidence.137 The Office solicited comment regarding applicable standards for evidence and received comments suggesting that the CCB look to outside sources for establishing evidence standards, such as immigration courts 138 and the Copyright Royalty Board CRB.139
The proposed rule for evidentiary standards is modeled after the CRBs rule,140 as applicable. The Office proposes adopting the general standard of accepting all evidence that is relevant and not unduly repetitious or privileged, as well as the CRBs standards for testimony and objections at hearings. In addition, the proposed rule clarifies the role of FRE 401 and 403, and reserves the CCBs right to discount or exclude evidence with serious credibility issues. It also establishes that only documentary evidence submitted during the written testimony phase may be introduced at a hearing, except evidence required during cross-examination or redirect examination. The Office has not incorporated the CRBs provision requiring that physical copies of evidentiary materials be provided to all parties, due to the online nature of CCB
proceedings.141 Similarly, due to the nature of CCB proceedings, the Office also does not incorporate the CRBs standards regarding the introduction of studies and analyses.
The proposed rule further provides that testifying witnesses at hearings must take an oath or affirmation prior to their testimony. Parties may conduct direct examination, cross-examination, and redirect examination, but the CCB
may limit the number of witnesses who 135 17

U.S.C. 1506o.

136 Id.
137 Id.

at 1506o2.
Initial NOI Comments at 8.
139 Copyright Alliance, et al. Initial NOI
Comments at 22.
140 37 CFR 351.10.
141 Id. at 351.10d.
138 AIPLA

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testify or the scope of the questioning.
Parties will be entitled to raise objections to evidence during the hearing, and the Board will consider those objections if based on valid reasoning, even if not based on the technical rules of evidence.
E. Written Testimony The CCB is barred from instituting formal motion practice except that it may request or permit parties to make submissions addressing relevant questions of fact or law, or other matters, including matters raised sua sponte by the Officers, and offer responses thereto. 142 The CCB is further allowed to hear various requests from the parties.143 As part of its broad flexibility to regulate CCB
proceedings,144 the Office proposes a process of written testimony at the close of discovery that establishes the legal and factual basis for the dispute. The Office intends that this process may establish the entire record for the CCBs consideration and that hearings will be held at the CCBs discretion and as set forth below.
A claimant or counterclaimant begins the process by submitting written direct testimony in support of its claim or counterclaim. Any party subsequently responding to that claim shall file written response testimony thirty days following service of the direct testimony. Finally, the original claimant or counterclaimant may, but is not required to, file written reply testimony fourteen days following service.
Direct and responsive testimony comprises documentary evidence, witness statements, and party statements. Documentary evidence consists of non-testimonial evidence sponsored by a witness with knowledge of its contents and authenticity, unless the document was produced by an opposing party. Such evidence must have been served on the opposing parties, and accompanied by a numbered document list that briefly describes each document included.
Witness statements consist of sworn written testimony, from non-expert witnesses unless leave for experts has been granted, testifying to factual information based on the witnesss personal knowledge, and sponsoring certain documents in the document list.
A party statement is a brief statement of no more than twelve double-spaced pages that sets forth a partys position as to key facts, the law, and damages. For a claimant, such damages information
includes whether it is seeking statutory or actual damages and any profits of an alleged infringer. For a respondent, such information includes whether it would voluntarily agree to an order stopping it from engaging in activities found unlawful; 145 such an agreement may be taken into account by the CCB in determining damages. Both elections may be changed prior to a final determination, and a respondents agreement to an injunction will not be considered in any way when reviewing liability. Reply testimony may only include new documentary evidence and witness statements to the extent that they are required to contradict or rebut evidence presented by the opposing party in its response.
F. Hearings In the course of a proceeding, the CCB
may conduct hearings.146 Hearings on the merits may be held as long as there are no fewer than two Officers to receive oral presentations on issues of fact or law from parties and witnesses to a proceeding. 147 These hearings, whenever possible, are to be carried out online or by phone, except that, in cases in which physical or other nontestimonial evidence material to a proceeding cannot be furnished to the Copyright Claims Board through available telecommunications facilities, the Board may make alternative arrangements . . . that do not prejudice any other party to the proceeding. 148
The hearing must be noted in the record and transcribed.
The Office proposes that a hearing not be required at the close of written testimony, but may be held at the CCBs discretion, and may be convened on the CCBs own initiative or upon a request from any party for a hearing. A party need not give detailed reasons for its request for a hearing, but the request must be included in a party statement submitted during the written testimony phase. Once the hearing has been conducted, no additional testimony or evidence may be submitted, except as set forth in post-determination proceedings.
The Office understands that while alternative arrangements may be made for the submission of material physical or nontestimonial evidence that cannot be furnished virtually, the statute appears to require virtual hearings.149
However, the Office is interested in providing a mechanism for in-person 145 Id.

at 1504e2.
at 1503a1E.
147 Id. at 1506p.
148 Id. at 1506c2.
149 Id.
146 Id.

142 17

U.S.C. 1506m2.
at 1506m1.
144 Id. at 1506a1, 1510a1.
143 Id.

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