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Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Proposed Rules
lotter on DSK11XQN23PROD with PROPOSALS1

require a standard form provided by the CCB for requesting waiver of service.
The form will provide the basic information regarding the proceeding, clarify that the form is not a formal service of summons and does not waive the respondents right to opt out of the proceeding, and describe the effect of agreeing or declining to waive service.
The claimant can request waiver by mailing the request, claim, initial notice, and envelope with postage prepaid to the respondent. The respondent will have thirty days from the date the request is sent to waive service, and may return the signed waiver form by mail or by email, if the claimant includes an email address in the request. If the respondent accepts waiver of service, and further does not opt out, respondent will have an additional thirty days to file a response beyond the time for response typically set by the CCB. If the respondent does not waive service, the claimant must complete service with sufficient time to file the proof of service with the CCB.
E. Second Notice In addition to the notice served by the claimant on the respondent, the CCB is required to issue a second notice to the respondent if the respondent has not already opted out or filed a response.
The statute requires that the Register promulgate regulations providing for a written notification to be sent by, or on behalf of, the Copyright Claims Board to notify the respondent of a pending proceeding. 75 Similar to the claimants initial notice, this notice must include information concerning the respondents right to opt out of the proceeding, the consequences of opting out and not opting out, and a prominent statement that, by not opting out within 60 days after the date of service . . . the respondent loses the opportunity to have the dispute decided by a court created under article III of the Constitution of the United States and waives the right to a jury trial regarding the dispute. 76 This second notice supplements the initial notice served by the claimant and is intended to facilitate understanding of the official nature of the documents and proceeding, encourage a respondent to review the materials, and overall, increase the likelihood that a respondent engages with the asserted claim and knowingly elects to proceed or opt out of the CCB proceeding.
In the NOI, the Office sought comment on the second notice, including its content and how to 75 17
76 Id.

U.S.C. 1506h.
at 1506h1.

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ensure that recipients understand that it is an official Federal Government notification. 77 The Office also requested input on the method of servicespecifically, whether the second notice should be sent by or on behalf of the CCB, whether the second notice should be posted to the online filing system or delivered by mail or email, and how delivery should be documented.78
Commenters suggested that the second notice should be substantially the same as the first, with a prominent warning that this is the second and final notice with an explanation of the impact of not opting out.79 Parties also recommended that the CCB issue the second notice via U.S. mail.80 The Office agrees with these comments and proposes that the second notice closely mirror the initial notice, specifically with regard to the description of the CCB, the consequences of opting out, the process of opting out, and accessing legal assistance. The Office proposes to issue the second notice by mail, but also to deliver a second copy via email to the designated service agent of a respondent that is a corporation, partnership, or unincorporated association that has indicated in the designated service agent directory that it will accept email service.
The Office has also proposed that the second notice be issued no later than twenty days after the claimant files proof of service or waiver of service.
The CCB will not issue a second notice if the respondent has opted out. The Office anticipates that the respondent will have at least thirty days between the receipt of the second notice and the end of the opt-out period, given that the claimant has seven days to file proof after effectuating service or obtaining waiver, and the Office will issue the second notice no more than twenty days after that. Delays in the claimants filing of proof of service or waiver may constitute good cause for extending the opt-out or response period.
F. Opt-Out Procedures Once the respondent receives notice of the claim, the respondent has sixty days to opt out of the proceeding before the CCB, although the CCB can extend that period in the interests of justice, such as for a delay in the receipt of a second notice due to a claimants failure to file proof of service in a timely 77 86

FR at 16159.
U.S.C. 1506h.
79 Authors Alliance Initial NOI Comments at 4;
Niskanen Ctr. Initial NOI Comments at 4.
80 AIPLA Initial NOI Comments at 3. Copyright Alliance, et al. Initial NOI Comments at 14.
78 17

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manner.81 If a respondent does not timely opt out, the proceeding will become active and the respondent will be bound by the CCBs determination.82
If the respondent does opt out, the proceeding will be dismissed without prejudice.83
The Office solicited general input regarding opt-out, in particular, the form and process of a written opt-out notice.84 Commenters were consistent that the opt-out process should be quick and easy to exercise, and that respondents should be provided both online and mail options for opting out.85
Parties proposed different approaches for the online opt-out process.
Suggestions included the creation of a QR code,86 a button on the CCB home page,87 and providing a verification key code for security.88 The Office appreciates parties comments on this issue and proposes an opt-out notification form that asks for the docket number of the claim, identifying information regarding the respondent, and a signed affirmation that the person affirming is the respondent identified in the claim or a representative of that respondent and that the respondent will not be participating in the CCB
proceeding. This notification can be submitted either online using a form on the CCBs website or through the mail, or via hand delivery or commercial courier. The Office has included the suggestion that an online opt-out be accompanied by a verification code provided in the initial notice and second notices, and will continue to consider the remaining suggestions regarding online opt-out as it develops its form, website, and online filing system. The CCB will include in the initial and second notice instructions for completing opt-out election online, as well as by using a paper opt-out form.
The proposed rule clarifies various issues related to the scope and effect of opting out. In particular, the rule requires that each respondent to a proceeding independently opt out, and that an opt-out will be effective against duplicate claims but not unrelated 81 17
82 Id.

U.S.C. 1506aa1, 1507b2A.
at 1506i.

83 Id.
84 86

FR at 16161.
e.g., Copyright Alliance, et al. Initial NOI
Comments at 1718; EFF Initial NOI Comments at 23; Engine Initial NOI Comments at 56; Internet Archive Initial NOI Comments at 12; MPA, RIAA
& SIIA Initial NOI Comments at 8; Public Knowledge, et al. Initial NOI Comments at 14.
86 Engine Initial NOI Comments at 5; Niskanen Ctr. Initial NOI Comments at 4.
87 Public Knowledge, et al. Initial NOI Comments at 1314.
88 Copyright Alliance, et al. Initial NOI Comments at 12.
85 See,
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29SEP1