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Update on the CASE Act
On March 26th, the USCO (United States Copyright Office) released an NOI (Notification of inquiry) regarding the implementation of the Copyright Claims Board (CCB) as part of the Copyright Alternative in Small-Claims Enforcement (CASE) Act. This NOI was the first step in enacting the regulations required by the statute, and subsequent NOIs will follow, with each focusing on one or more of the regulatory categories. The NOI states that the categories are as follows:
establish regulations to govern the CCB and its procedures, including rules addressing service of notice and other documents, waiver of personal service, notifications that parties are opting out of participating in the forum, discovery, a mechanism for certain claims to be resolved by a single CCB Officer, review of CCB determinations by the Register of Copyrights, publication of records, certifications, and fees. The statute also allows the Office to adopt several optional regulations, including regulations addressing claimants' permissible number of cases, eligible classes of works, the conduct of proceedings, and default determinations.
In coordination with the Copyright Alliance and the Coalition of Visual Artists, Professional Photographers of America submitted two NOIs through each organization respectively on April 26. The submitted comments can be found here. We advocated for the following initiatives: plainly stated language for non-lawyers to understand, setting time parameters from the date of filing a claim through the filing of the response, a limited period of discovery, and methods which help “negotiate a settlement that as a mutually agreeable alternative to continuing with the claim.”
After the initial comments were submitted, reply comments were allowed for submission, and as a part of the Copyright Alliance, we signed onto their submission. In this conjunctive reply, topics that were addressed are as follows: content of the initial notice, CCB respondent notifications serving as the second notice, service of process and designated agents, respondent’s opt-out provisions, library, and archive opt-outs, discovery, evidentiary rules, and other rules of practice and procedure, protective orders, respondent’s default and claimant’s failure to prosecute, similar claims, fees, permissible number of cases, and conduct of parties and attorneys. Other subjects that were covered as well include, fair use, cases involving software, statutory vs actual damages, and third-party subpoenas.
Following these notices, a Notice of Public Rulemaking (NPRM) was sent by the USCO on April 26th seeking input on expedited registration and the Freedom of Information Act (FOIA). Our submission sent on May 26th through the Copyright Alliance can be found here.
This process is not over and subsequent NOIs and NPRMs will be sent by the USCO as we approach the December 27, 2021, to the June 27, 2022 window that the CCB is mandated to be set up by