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Federal Register / Vol. 86, No. 168 / Thursday, September 2, 2021 / Proposed Rules proposed rule accordingly does not include such a provision.
Some commenters further requested that the Office promulgate a regulation expanding the statutory opt-out provision to a librarys larger institution,59 such as a university, or to that larger institutions students, staff, adjunct, and faculty.60 For the same reasons just noted, however, such a rule is inconsistent with the statutes express limitation of this option to libraries and archives.61
5. Other Proposals Commenters asked the Office to promulgate certain additional rules related to participation by libraries and archives. First, some commenters requested that the Office consider including regulations allowing a library or archives to revoke or rescind its preemptive opt-out election.62 As LCA
explained, a library should not forever be excluded from the CCB
process because it exercises a preemptive opt-out at one point in time. 63 The Copyright Alliance et al.
opposed this proposal.64 As an alternative, they suggested that the Office could create a two-tiered system, with the first tier allowing for permanent opt outs and the second tier requiring recertification of the institutions opt-out decision on an annual basis. 65 In their view, this approach would have the additional benefit of acting as a routine audit to ensure that libraries or archives taking advantage of the blanket opt-out continue to meet the qualifications for section 108. 66
The Office generally agrees that a librarys or archives opt-out election should not be irreversible. Indeed, permitting such an institution to rescind an opt-out would help advance the statutory goal of encouraging participation in the CCB system. The proposed rule accordingly provides that a library or archives may rescind a preemptive opt-out election by 59 LCA

NOI Initial Comments at 3.
II NOI Initial Comments at 1.
61 17 U.S.C. 1506aa1; see also 86 FR at 16161
Congress did not establish a blanket opt-out for any entities other than libraries and archives, and in that case, it did so expressly by statute. This suggests that the Office lacks authority to adopt other blanket opt-outs by regulation. citing Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 107 2012; Lindh v. Murphy, 521 U.S. 320, 330 1997.
62 Anthony Davis Jr. & Katherine Luce NOI Initial Comments at 2; CCIA & IA NOI Initial Comments at 4; LCA NOI Initial Comments at 3.
63 LCA NOI Initial Comments at 3.
64 Copyright Alliance et al. NOI Reply Comments at 1213.
65 Id. at 13.
66 Id.

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providing written notification of such intent to the CCB. To avoid potential abuses and to limit the impact on CCB
resources, the proposed rule provides that an institution may make no more than one such rescission per calendar year.
In addition, two commenters proposed rules to address errors and abuses involving the opt-out process.
LCA urged the Office to establish procedures to address circumstances where a Copyright Claims Attorney erroneously allows a claim to proceed against a library.67 Verizon proposed regulations to deter those who repeatedly abuse the opt-out process, including the ability to impose monetary fines on bad faith filers and the ability to ban such parties from future use of the CCB process. 68 While these suggestions are related to the preemptive opt-out provisions for libraries and archives, they are more appropriately considered in future CASE Act rulemakings addressing errors in and abuses of CCB procedures generally.
B. Class Actions A CCB proceeding does not have any effect on a class action proceeding in federal district court.69 If, however, a party in an active CCB proceeding receives notice of a pending or putative class action, arising out of the same transaction or occurrence as the claim at issue before the CCB, the CASE Act provides that party with two choices.70
The party must either opt out of the class action, in accordance with regulations established by the Register, or seek dismissal of the CCB proceeding in writing.71 In the NOI, the Office asked for public comment on any issues that should be considered relating to regulations governing dismissal or opt-outs related to class action proceedings, including specific proposed regulatory language. 72
Two parties provided comments on this issue. The Copyright Alliance et al.
suggested that if a party receives notice of a class action and wishes to dismiss the case before the CCB, the regulations should require that party to notify the CCB and the other parties to the case within 10 business days following receipt of the class action notice. 73 The MPA, RIAA, and SIAA
did not suggest a specific time period, 67 LCA

NOI Reply Comments at 4.
NOI Initial Comments at 34.
69 17 U.S.C. 1507b.
70 Id. at 1506q3.
71 Id. at 1507b2; 1506q3.
72 86 FR at 16161.
73 Copyright Alliance et al. NOI Initial Comments at 21.
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but suggested that a party learning of a class action during the pendency of a proceeding and wishing to exercise a class-action opt-out should be required to do so promptly after learning of the class action. 74 The MPA, RIAA, and SIIA also voiced concerns that a delayed opt out decision risks wasting effort and expense by the litigants and the CCB, and the amount of wasted effort and expense increases with the passage of time. 75
The Office has proposed a fourteenday period for a party to either opt out of the class action or to seek dismissal of the CCB proceeding. If a party chooses to opt out of the class action, he or she must file written notice of that intent with the CCB within fourteen days after filing such notice with the court. The proposed rule authorizes the Board to extend these time periods for good cause.
List of Subjects in 37 CFR Part 223
Copyright, Claims.
Proposed Regulations For the reasons set forth in the preamble, the Copyright Office proposes to amend Chapter II, Subchapter B, of title 37 Code of Federal Regulations to read as follows:
SUBCHAPTER BCOPYRIGHT CLAIMS
BOARD AND PROCEDURES

1. The heading of Subchapter B is revised to read as set forth above.
2. Part 223 is added to read as follows:

PART 223OPT-OUT PROVISIONS
Sec.
223.1 Reserved 223.2 Libraries and archives opt-out procedures.
223.3 Class action opt-out procedures.
Authority: 17 U.S.C. 702, 1510.
223.1

Reserved
223.2 Libraries and archives opt-out procedures.

a Opt-out notification. 1 A library or archives that wishes to preemptively opt out of participating in Copyright Claims Board proceedings under 17
U.S.C. 1506aa may do so by submitting written notification to the Copyright Claims Board. The notification shall include a signed certification under penalty of perjury that the library or archives qualifies for the limitations on exclusive rights under section 108 of title 17.
2 The submission described in paragraph a1 of this section shall list the name and physical address of each 74 MPA,
RIAA & SIIA NOI Initial Comments at 9.

75 Id.

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