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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules
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Copyright Claims Attorney. If the Copyright Claims Attorney determines that the amended claim is compliant, the claimant must serve the amended claim on the respondent within fourteen days. Once the claimant serves the amended claim, the period for the respondent to opt out will begin anew, and it will have sixty days to determine whether to opt out of the proceeding.
If a party seeks to amend a pleading after the opt-out period has expired, it may only do so with the leave of the CCB. If the CCB grants such leave, the amendment still must be submitted for a compliance review. To make a request to amend a pleading after service, the party must submit a short letter to the CCB, and any opposing parties will be provided with an opportunity to object or to state that they do not object. The CCB will freely grant leave as justice so requires, after considering whether permitting amendment would prejudice any party or unduly delay the proceeding, and whether the party seeking amendment reasonably should have known of the basis for an amendment earlier. Responses to amended pleadings must be made within the later of the time remaining to respond to the original pleading or within twenty-one days of the CCBs issuance of notification that the amended pleading is compliant.
In proposing this approach, the Office seeks to ensure that the respondent knows the nature and scope of a claim before the opt-out period expires. In other words, the Office wishes to avoid scenarios where amendments substantially change the nature of the proceeding after the opt-out decision has been made. At the same time, the Office believes it is appropriate to permit certain amendments after service, especially where an obvious typographical error has been made. The Office seeks comments concerning these issues and the proper mechanisms for allowing amendments after service of a pleading while preserving the purpose of the opt-out provision.
4. Consolidation The statute is silent concerning whether claims may be consolidated where they involve identical parties or identical facts and circumstances, or severed where they involve disparate claims. In line with the suggestion of one commenter,87 the proposed rule provides that the CCB may consolidate active proceedings that involve the same parties or that arise out of the same facts and circumstances for purposes of 87 Science Fiction and Fantasy Writers of Am.
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conducting discovery, submitting evidence, or holding hearings, but not for purposes of CCB determinations and any damages award. Regarding severance, Copyright Claims Attorneys likely will, in the ordinary course, be able to identify during their review process instances where multiple claims involving disparate facts and circumstances have been asserted, and can require that the claimant separate out such disparate claims. The proposed rule also permits the CCB to sever proceedings with respect to some or all parties, claims, and issues where it becomes evident that a single proceeding includes distinct claims involving disparate facts and circumstances that would be inappropriate to resolve in a single proceeding.
Unlike the rule on consolidation, claims that have been severed will be treated together for purposes of damages, so that the cumulative amount of damages awarded in the severed proceedings cannot exceed the maximum damages under the statute for one proceeding. The CCB may dismiss one of the severed proceedings if it finds it to be unsuitable, while allowing the remaining proceeding or proceedings to continue.
The CCB may consolidate or sever proceedings either on its own or at the request of a party, provided that all affected parties receive reasonable notice and an opportunity to be heard.
A party seeking consolidation or severance must submit a short letter to the CCB, setting forth the basis for the request, seeking a conference between the CCB and parties from each affected case, and, in the case of a consolidation, providing the docket numbers of each affected proceeding. Parties opposed to the consolidation or severance may file a response objecting to the request. The CCB will consider whether consolidation or severance is necessary and balance the necessity for such action with the timeliness of the request and any undue prejudice that may result.
The Office is interested in public comments concerning the advisability of these proposals. In particular, the Office seeks input as to whether the proposed rule that consolidated proceedings will remain separate for purposes of determinations and damages could be used to evade the statutory caps on damages awards in CCB proceedings, and whether, despite the proposed rule against a party taking actions to avoid case filing limitations, the proposed rule concerning severance could enable parties to evade the limitation on the number of proceedings filed by a single
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party if a party was able to make disparate claims against various respondents in a single claim filing, all of which should not have been filed together, and then attempt to treat all those claims as one filing even if later severed.
5. Settlement The statute empowers Officers to facilitate the settlement between parties of claims and counterclaims.88 It also permits some or all of the parties, at any point in an active proceeding, to request a settlement conference with an Officer.
Parties may also jointly submit a settlement agreement, which may be adopted in the CCBs final determination.89 Congress was clear that the statute reflects an intent to encourage compromise and settlement and is designed to promote compromise, as further reflected by the requirement that at least one of the Officers have experience with alternative dispute resolution.90
The proposed rule provides that the CCB will encourage voluntary settlement and will, at a minimum, discuss the appropriateness of holding a settlement conference as part of the prediscovery and post-discovery conferences. At any point in an active proceeding, some or all parties may jointly request a settlement conference with an Officer either orally at a conference or in writing. If the request is made in writing, it must indicate which other parties, if any, join in the request. The party or parties may request a stay of the proceeding while settlement discussions are ongoing. Any opposing party may submit a response letter objecting to the settlement conference or the stay. Stays will be at the CCBs discretion. If no party objects, the CCB will schedule a settlement conference. If one or more party objects, the CCB may still schedule a conference with some or all of the parties, after considering the basis for the objection and whether any claims or counterclaims may be resolved if the CCB holds a conference with only the consenting parties in attendance.
Three days prior to the settlement conference, each participating party must submit a position statement by email to the Officer presiding over the settlement conference, which can be provided to the other parties by agreement, and may include a limited number of exhibits, to facilitate the settlement discussions. The CCB may 88 17

U.S.C. 1503a1F.
at 1506r.
90 17 U.S.C. 1502b3iii; H.R. Rep. No. 116
252, at 24.
89 Id.

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