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Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Proposed Rules
6 Any other exhibits that play a significant role in setting forth the facts of the counterclaim response.
d Failure to file counterclaim response. A failure to file a counterclaim 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.
PART 223OPT-OUT PROVISIONS
5. The authority citation for part 223
continues to read as follows:

Authority: 17 U.S.C. 702, 1510.

6. Revise 223.1 to read as follows:

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223.1

Respondents opt-out.

a Effect of opt-out on particular proceeding. A respondent may opt out of a proceeding before the Board pursuant to 17 U.S.C. 1506i following the procedures set forth in this regulation. A respondents opt out will result in the dismissal of the claim without prejudice.
b Content of opt-out notification.
The respondents opt-out notification shall include:
1 The docket number assigned by the Board and contained in either the initial notice served by the claimant or the second notice;
i The respondents name;
ii The respondents address;
2 The respondents affirmation that the respondent will not appear before the Board with respect to the claim served by the claimant;
3 A certification under penalty of perjury that the individual completing the notification is the respondent identified in the claim served by the claimant; and 4 The typed, printed, or handwritten signature of the respondent, and if the signature is handwritten, it shall be accompanied by a typed or printed name.
c Process of opting out. Upon being properly served with a notice and claim, a respondent may complete the opt-out process by 1 Completing and submitting the online opt-out notification form identified in the initial notice and second notice and made available on the Boards website. An online opt-out is not complete unless a confirmation code provided with the initial notice or second notice is included in the submission; or, 2 Completing the paper opt-out notification form included with the initial notice and second notice and delivering it to the Board, by one of the methods described in 37 CFR
222.5eiiA through D.

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d Timing of opt-out. The respondent has 60 days from the date of service or waiver of service to provide notice of its opt-out election. When the last day of that period falls on a weekend or a Federal holiday, the ending date shall be extended to the next Federal work day.
1 When opting out via the online form under paragraph c1 of this section, the respondents opt out notification must be completed by midnight Eastern Time on the last day of the opt out period.
2 When opting out under paragraph c2 of this section, the respondents opt out notification must be postmarked, dispatched by a commercial carrier, courier, or messenger, or hand delivered to the Office no later than the 60 day deadline.
e One opt-out per respondent. In claims involving multiple respondents, each respondent who elects to opt out must separately complete the opt-out process.
f Confirmation of opt-out. When a respondent has completed the opt-out process, the Board will notify all parties to the proceeding.
g Effect of opt-out on refiled claims.
If the claimant attempts to refile a claim against the same respondents, covering the same acts and the same theories of recovery after the respondents initial opt-out notification, the Board will apply the prior opt-out election and dismiss the claim.
h Effect of opt-out on unrelated claims. The respondents opt-out for a particular claim will not be construed as an opt-out for claims involving different acts or different theories of recovery.
7. Add part 224 to read as follows:
PART 224REVIEW OF CLAIMS BY
OFFICERS AND ATTORNEYS
Sec.
224.1
224.2

Compliance review.
Dismissal for unsuitability.

Authority: 17 U.S.C. 702, 1510.
224.1

Compliance review.

a Compliance review by Copyright Claims Attorney. Upon the filing of a claim or counterclaim with the Board, a Copyright Claims Attorney shall review the claim for compliance as provided in this section.
b Substance of compliance review.
The Copyright Claims Attorney shall review the claim or counterclaim for compliance with all legal and formal requirements for a claim or counterclaim before the Board, including:
1 The provisions set forth under this subchapter;

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2 The requirements set forth in 17
U.S.C. 1504c, d, and e1; and 3 Whether the allegations in the claim or the counterclaim clearly do not state a claim upon which relief can be granted.
c Issuing finding. Upon completing a compliance review, the Copyright Claims Attorney will notify the party that submitted the document in accordance with 37 CFR 222.5 and 17
U.S.C. 1506f by 1 Informing the claimant or counterclaimant that the claim or counterclaim has been found to comply with the applicable statutory and regulatory requirements and instructing the claimant to proceed with service under 37 CFR 222.5 and 17 U.S.C.
1506e; or 2 Informing the claimant or counterclaimant that the claim or counterclaim, respectively, does not comply with the applicable statutory and regulatory requirements and identifying the noncompliant issues according to the procedure set forth in 17 U.S.C. 1506f.
d Clearance is not endorsement. The finding that a claim or counterclaim complies with the applicable statutory and regulatory requirements does not constitute a determination as to the validity or of the allegations asserted or other statements made in the claim or counterclaim.
e No factual investigations. For the purpose of the compliance review, the Copyright Claims Attorney shall accept the facts stated in the claim or counterclaim materials, unless they are contradicted by information provided elsewhere in the materials or in the Boards records. The Copyright Claims Attorney will not conduct an investigation or make findings of fact;
however, the Copyright Claims Attorney may take administrative notice of facts or matters that are well known to the general public, and may use that knowledge during review of the claim or counterclaim.
224.2

Dismissal for unsuitability.

a Review by Copyright Claims Attorney. During the review of the claim under 37 CFR 224.1, the Copyright Claims Attorney shall review the claim or counterclaim for unsuitability on grounds set forth in 17 U.S.C. 1506f3.
If the Copyright Claims Attorney concludes that the claim should be dismissed for unsuitability, the Copyright Claims Attorney shall recommend to the Copyright Claims Board that the Board dismiss the claim and shall set forth the basis for that conclusion.

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