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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules
issue an order staying the proceedings for a period of up to thirty days at the time the conference is scheduled, during or following the conference, or at the request of the parties. Such a stay may be extended at the request of the parties, provided that they are participating in ongoing settlement discussions. If settlement discussions have not been successful at the time the stay or an extension thereof expires, the CCB will issue an amended scheduling order.
If settlement discussions are successful and some or all of the parties have reached a resolution, the parties may notify the CCB that they wish to dismiss some or all of the claims or counterclaims and may also include in their request for a dismissal that the CCB adopt some or all of the settlement terms in the final determination. The CCB will dismiss any claims or counterclaims covered by the settlement agreement with prejudice unless the parties have agreed otherwise and will adopt any requested settlement terms into the final determination, unless the CCB determines that they are clearly unconscionable.
The Office invites any comments concerning whether there are any other regulations that should be adopted to facilitate settlement between the parties.
In particular, the Office seeks input on whether the CCB should be able to order a settlement conference where it sees possible benefit to holding a conference even where one or more parties object.
The Office also seeks comment regarding the participation of Officers in settlement conferences. Under the statute, a determination must be reached by the majority of the Copyright Claims Board, 91 which suggests that an Officer who participates in a settlement conference must also participate in the determination. The Office notes that in the federal litigation system, there are varying approaches within the district courts 92 regarding who should preside over settlement conferences. Some allow district judges to preside over such conferences,93 while others prefer the use of magistrate judges,94 outside neutrals,95 or some combination 91 17

U.S.C. 1506t.
of Justice, ADR in the Federal District Courts Mar. 2016, https
www.justice.gov/archives/olp/file/827536/
download.
93 See, e.g., D. Nev. L. Civ. R. 16.5; E.D. Mich. L.
Civ. R. 16.3.
94 See, e.g., D. Ariz. L. Civ. R. 83.10; D. Colo. L.
Civ. R. 16.6.
95 See, e.g., U.S. District Court for the Southern District of New York, Mediation Program Procedures, at 10 July 2020; N.D. Ca. L. ADR R.
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defendants in federal litigation; 102 and that claimants should be required to indicate as part of the initial claim whether they are seeking $5,000 or less in damages.103 The legislative history suggested that the Office could consider delaying rulemaking concerning smaller claims proceedings until it has an opportunity to evaluate its ordinary procedures and caseload in practice.104
The Office has considered this suggestion and has decided to institute smaller claims procedures at the outset in order to provide an option of an increasingly streamlined process for claims of $5,000 or less. The Office believes that providing such a process will provide benefits in terms of efficiency and simplicity to parties and may enable the CCB to handle more claims than it otherwise could.
Under the proposed rule, a claimant may either request consideration under the smaller claims procedures at the 6. Smaller Claims time of filing or amend its request any time prior to service of the claim. When The statute directs the Office to the claimant seeks to amend its choice establish regulations concerning claims after the compliance review but before in which the total damages sought by service, the CCB must issue a new the claimant do not exceed $5,000, initial notice reflecting the change, so exclusive of attorneys fees and costs.
that the notice served on the respondent These smaller claims are to be states that the proceeding will be considered and determined by not fewer conducted under the rules for smaller than one Officer. Such determinations claims. However, once the claimant will have the same effect as a chooses the smaller claims procedures 97
determination issued by the full CCB.
and completes service, that decision The legislative history states that such may not be reversed without the consent proceedings should have the same of the other parties and leave of the procedural protections of any other CCB.
claim before the Copyright Claims Smaller claims proceedings will be Board, other than that they may be heard by one Officer, who will be 98
heard by a single Officer.
assigned on a rotating basis at the CCBs The Office solicited comments discretion. Discovery in smaller claims concerning procedures for such proceedings will be limited to the smaller claims, including regulations standard interrogatories, requests for that would increase the efficiency of admission, and the standard production such proceedings while retaining the of document requests provided by the CCBs standard procedural CCB, as discussed further below. The protections.99 Several commenters presiding Officer shall not consider any suggested that there be a strong requests for additional discovery, and presumption against discovery in expert testimony will be prohibited in smaller claims proceedings.100 Other smaller claims proceedings, since any suggestions included that only Officers benefits of additional discovery or with substantial experience with expert testimony are unlikely to copyright infringement claims be outweigh the costs and delays that they permitted to preside over smaller claims may cause. The assigned Officer will proceedings; 101 that respondents should issue a determination based solely on receive the same protections available to the written testimony and without holding a hearing prior to issuing a 96 See, e.g., E.D. Va. L. Civ. R. 83.6.
determination.
97 17 U.S.C. 1506z.
The Office welcomes comments 98 H.R. Rep. No. 116252, at 17.
concerning the proposed rule for 99 86 FR 1616263.
smaller claims and whether it strikes a 100 Copyright Alliance, et al. Reply NOI
proper balance between streamlining Comments at 17; AIPLA Initial NOI Comments at thereof.96 The Office recognizes the possibility that a separation between the Officer who presides over a settlement conference and the Officers who serve as the ultimate decision-makers could further encourage participation in voluntary settlement negotiations, and seeks comments assessing the likelihood that parties will engage in settlement when the Officer who presides over the settlement conference will also be involved in the final determination. The Office is also interested in comment regarding any statutory authority for the recusal of the settlement conference Officer from a proceeding, only to terminate the recusal if the two remaining Officers fail to agree on a determination, and whether parties could stipulate to such a recusal and to abide by a decision issued by only the Officers not involved in settlement discussions.

7; Copyright Alliance, et al. Initial NOI Comments at 29; MPA, RIAA & SIAA Initial NOI Comments at 17.
101 Copyright Alliance, et al. Initial NOI
Comments at 29.

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104 S. Rep. No. 116105, at 8.

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