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

either clearing the claim for service or, upon confirmation of noncompliance by a Copyright Claims Officer, dismissing the claim without prejudice. The CCB
shall also dismiss without prejudice any proceeding in which the claimant fails to file an amended complaint within the 30-day window. Counterclaims are subject to the same compliance review.25
The statute describes the compliance review process in some detail. Here, the Office proposes a limited number of regulations to clarify the scope of review. The proposed rule provides that a Copyright Claims Attorney shall review a claim to determine whether the allegations clearly do not state a claim upon which relief can be granted. This standard echoes the standard set forth in the Federal Rules of Civil Procedure,26
but is meant to be less exacting than that governing a motion to dismiss. The Office believes that this approach is in the best interest of all parties: The claimant has the opportunity to state its case; the respondent has a better understanding of the allegations involved in the claim and will be in a stronger position to consider participation; and the CCB will avoid the administrative burden associated with hearing overbroad or clearly implausible claims. The Office is also proposing to incorporate an examination standard from the Compendium of U.S. Copyright Office Practices, which stipulates that while the Office does not conduct factual investigations, it may take administrative notice of facts generally known as established and may use that knowledge during compliance review.27
Finally, as suggested by one commenter,28 the proposed rule clarifies that the CCBs clearance of a claim for notice is not an endorsement of the facts and statements asserted in the claim.
2. Dismissal for Unsuitability Under the statute, the CCB must dismiss a claim or counterclaim without prejudice if it concludes that the claim or counterclaim is unsuitable for determination . . . including on account of any of the following . . .
the failure to join a necessary party;
. . . the lack of an essential witness, evidence, or expert testimony; or the determination of a relevant issue of law or fact that could exceed either the number of proceedings the CCB could 25 Id.

at 1506f2.
R. Civ. P. 12b6.
27 U.S. Copyright Office, Compendium of U.S.
Copyright Office Practices, Third Edition sec.
602.4C 3d ed. 2021.
28 Elec. Frontier Found. EFF Initial NOI
Comments at 2.
26 Fed.

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reasonably administer or the subject matter competence of the CCB. 29 The issue of unsuitability may be taken up by the Board at any time during the proceedings, whether during compliance review or thereafter.30
The Office did receive suggestions as to particular claims that should be considered unsuitable.31 At this time, however, the proposed regulation addresses only the procedural matter of how the issue of unsuitability will be addressed. The Office proposes that the issue of unsuitability may be raised by the Board or by any party to the proceeding. Upon consideration of the matter, the Board may issue an order dismissing the claim without prejudice, after which the claimant has an opportunity to request reconsideration and the respondent has an opportunity to respond. In proposing this approach, the Office seeks to strike an appropriate balance between maximizing parties opportunity to be heard and preserving the Boards authority to dismiss claims that it determines to be unsuitable for determination.
C. Service of Initial Notice Once the claimant receives notification that the claim is compliant, the claimant must, not later than ninety days from receiving notification, file with the CCB proof of service on the respondent in order to proceed with the claim.32 To effectuate service, the claimant shall cause notice of the proceeding and a copy of the claim to be served on the respondent 33 as prescribed by the statute and regulations.
1. Content of Initial Notice To ensure that respondents are provided with proper notice of the claims asserted against them, the statute details elements that must be included in the initial notice accompanying the claim. In addition, the Office is required to create a prescribed initial notice form and is vested with regulatory authority to specify further requirements to be included in the notice.
At a minimum, the initial notice must describe the CCB and the nature of a CCB proceeding, so that pro se parties understand the process.34 The initial notice must include a clear and prominent explanation of the respondents right to opt out of the proceeding and the rights the 29 17

U.S.C. 1506f3.

30 Id.
31 See, 32 17

e.g., EFF Initial NOI Comments at 3.
U.S.C. 1506g.

33 Id.
34 Id.

PO 00000

respondent waives if they do not. 35
In particular, it must include a prominent statement that by not opting out of a CCB proceeding within sixty days of receiving the notice, 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. 36
In the NOI, the Office requested comment on additional regulatory requirements to help ensure that the initial notice conveys a clear explanation of the CCB, deadlines associated with the pending claim, the ability and method for the respondent to opt out of the proceeding, and the benefits and consequences of participating or declining to do so. 37
The Office provided examples of various approaches by federal and state courts,38 and invited parties to provide specific language to be included on the form or sample forms.39 The Office asked whether the notice should include a docket number and links to the CCBs website for relevant public information, and encouraged parties to suggest additional educational information while being mindful that the notice must remain easy to understand and avoid overwhelming respondents. 40
In response, commenters suggested a number of additional features to be included. Some proposed that the notice include not only information such as the respondents name, phone number, address, email address, and other contact information, but also information about the claim itself and background information about the CCB.41 Others suggested that the notice 35 H.R. Rep. No. 116252, at 22; see also 17 U.S.C.
1506g1.
36 17 U.S.C. 1506g1.
37 86 FR at 16159.
38 Admin. Off. of the U.S. Cts., Summons in a Civil Action June 2012, https www.uscourts.gov/
sites/default/files/ao440.pdf form AO 440; Clerk for the Circuit Court of Cook County, Summons Dec. 2020, http www.cookcountyclerkofcourt.
org/Forms/pdf_files/CCG0001.pdf form CCG 0001
A as of Sept. 14, 2021, Cook County Clerk of Court website was inaccessible; New Jersey Courts, Small Claims Summons and Return of Service Sept.
2018, https njcourts.gov/forms/10534_appendix_
xi_a2.pdf.
39 86 FR at 16159.
40 Id.
41 Copyright Alliance, et al. Initial NOI Comments at 11. However, the same comment observed that the notice should provide only the essential information about the process because providing too much information could overwhelm the Respondent. Id. at 12. Another commenter suggested that the notice include the legal name of the Plaintiff, a physical address, and a telephone number by which a live person can be called by the
at 1506g1.

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