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Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Proposed Rules
filing system and submits the certification provided for in 37 CFR
222.5e2ii may file a response by using printed forms and alternate submission instructions provided by the Board.
b Content of response. The response shall include:
1 A caption identifying the parties and the docket number assigned by the Board;
2 The name, address, phone number, and email of each respondent filing the response;
3 A short statement, if applicable, disputing any facts asserted in the claim;
4 For claims brought under 17
U.S.C. 1504c1, a statement describing in detail the dispute regarding the alleged infringement, including any defenses as well as any reason why the Respondent believes there was no copyright infringement, including whether any exceptions and limitations as set forth in 17 U.S.C. 107 through 122
that are implicated;
5 For claims brought under 17
U.S.C. 1504c2, a statement describing in detail the dispute regarding the alleged infringement, including reasons why the respondent believes there was copyright infringement;
6 For claims brought under 17
U.S.C. 1504c3, a statement describing in detail the dispute regarding the alleged misrepresentation and an explanation of why the respondent believes the identified words do not constitute misrepresentation;
7 Any counterclaims; and 8 A certification under penalty of perjury that the information provided in the response is accurate and truthful to the best of the certifying partys knowledge. The certification shall include the typed, printed, or handwritten signature of the respondents, and if the signature is handwritten it shall be accompanied by a typed or printed name.
c Additional matter. The respondent may also include, as attachments to or files that accompany the Response:
1 A copy of the certificate of copyright registration for a work that is the subject of the proceeding;
2 A copy of the allegedly infringed work. This copy may also be accompanied by additional information, such as a hyperlink, that shows where the allegedly infringed work has been posted;
3 A copy of the allegedly infringing material. This copy may also be accompanied by additional information, such as a hyperlink, that shows any allegedly infringing activity;

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4 A copy of the notification of claimed infringement that is alleged to contain the misrepresentation;
5 A copy of the counter notification that is alleged to contain the misrepresentation; and 6 Any other exhibits that play a significant role in setting forth the facts of the response.
d Timing of response. The respondent has 30 days from the issuance of the scheduling order to submit a response. If the respondent waived service, the respondent has an additional 30 days to submit the response.
e Failure to file response. A failure to file a response within the required timeframe will constitute a default under 17 U.S.C. 1506u, and the Board will begin proceedings in accordance with 37 CFR 227.
222.8

Counterclaim.

a Asserting a counterclaim. Any party can assert a counterclaim falling under the jurisdiction of the Board that 1 Arises out of the same transaction or occurrence as the initial claim; or 2 Arises under an agreement pertaining to the same transaction or occurrence that is subject to an initial claim of infringement, if the agreement could affect the relief awarded to the claimant.
b Electronic filing requirement. A
party may submit a counterclaim through the electronic filing system using the response form or counterclaim form provided by the Board, and serving the counterclaim as provided in 222.5.
Except as otherwise provided in this paragraph, to submit the counterclaim, the respondent must be a registered user of the electronic filing system. A
respondent who is unable to use the electronic filing system and submits the certification provided for in 37 CFR
222.5e2ii may submit a counterclaim by using printed forms and alternate submission instructions provided by the Board.
c Content of counterclaim. The counterclaim shall include:
1 The name of the party against whom the counterclaim is asserted;
2 An identification of the counterclaim, which shall consist of at least one of the following:
i A claim for infringement of an exclusive right in a copyrighted work provided under 17 U.S.C. 106;
ii A claim for a declaration of noninfringement of an exclusive right in a copyrighted work provided under 17
U.S.C. 106; and iii A claim under 17 U.S.C. 512f for misrepresentation in connection with
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A A notification of claimed infringement; or B A counter notification seeking to replace removed or disabled material.
3 For a counterclaim asserted under paragraph b2i of this section i Whether the counterclaimant is the legal or beneficial owner of rights in a work protected by copyright and, if there are any co-owners, their names;
ii The following information for each work at issue in the claim:
A The title of the work;
B The authors of the work;
C If a copyright registration has issued for the work, the registration number and effective date of registration;
D If an application for copyright has been submitted but a registration has not yet issued, the service request number SR number and registration application date; and E The works category, as set forth in 17 U.S.C. 102, or, if the counterclaimant is unable to determine which category is applicable, a brief description of the nature of the work;
iii A statement describing the facts relating to the alleged infringement, including, to the extent known:
A Which exclusive rights as set forth in 17 U.S.C 106 are at issue;
B The beginning date of the alleged infringement;
C The names of the persons or organizations alleged to have infringed the work;
D The nature of the alleged infringement;
E Whether the alleged infringement has continued up to the date the claim was filed, or, if it has not, the date the alleged infringement ceased;
F Where the alleged acts of infringement occurred; and G If the claim of infringement is asserted against an online service provider as defined in 17 U.S.C.
512k1B for infringement by reason of the storage of or referral or linking to infringing material that may be subject to the limitations on liability set forth in subsection 17 U.S.C. 512b, c, or d, an affirmance that the counterclaimant has previously notified the service provider of the claimed infringement in accordance with 17 U.S.C. 512b2E, c3, or d3, as applicable, and that the service provider failed to remove or disable access to the material expeditiously upon the provision of such notice;
4 For a counterclaim asserted under paragraph b2ii of this section i The name of the party who is asserting that the counterclaimant has infringed a copyright;
ii The following information for each work alleged to have been
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