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Proposed Rule2021-26058

Copyright Claims Board: Active Proceedings and Evidence

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Published

December 8, 2021

Issuing agencies

Library of CongressCopyright Office, Library of Congress

Abstract

The U.S. Copyright Office is issuing a notice of proposed rulemaking to establish procedures governing active proceedings before the Copyright Claims Board and post-determination procedures. The proposed rule provides requirements regarding procedural practice, scheduling, conferences, discovery, written testimony, hearings, settlement, smaller claims, default and failure to prosecute, records, post-determination procedures, and conduct of parties. The Office intends to initiate a subsequent rulemaking regarding law student representation.

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[Federal Register Volume 86, Number 233 (Wednesday, December 8, 2021)]
[Proposed Rules]
[Pages 69890-69917]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26058]

[[Page 69889]]

Vol. 86

Wednesday,

No. 233

December 8, 2021

Part V

Library of Congress

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37 CFR Parts 201, 220, 222, et al.

Federal Register / Vol. 86 , No. 233 / Wednesday, December 8, 2021 /
Proposed Rules

[[Page 69890]]

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LIBRARY OF CONGRESS

37 CFR Parts 201, 220, 222, 225, 226, 227, 228, 229, 230, 231, 232,
and 233

[Docket No. 2021-8]

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Copyright Office is issuing a notice of proposed
rulemaking to establish procedures governing active proceedings before
the Copyright Claims Board and post-determination procedures. The
proposed rule provides requirements regarding procedural practice,
scheduling, conferences, discovery, written testimony, hearings,
settlement, smaller claims, default and failure to prosecute, records,
post-determination procedures, and conduct of parties. The Office
intends to initiate a subsequent rulemaking regarding law student
representation.

DATES: Initial written comments must be received no later than 11:59
p.m. Eastern Time on February 7, 2022. Written reply comments must be
received no later than 11:59 p.m. Eastern Time on February 22, 2022.

ADDRESSES: For reasons of Government efficiency, the Copyright Office
is using the <a href="http://regulations.gov">regulations.gov</a> system for the submission and posting of
public comments in this proceeding. All comments are therefore to be
submitted electronically through <a href="http://regulations.gov">regulations.gov</a>. Specific instructions
for submitting comments are available on the Copyright Office website
at <a href="https://copyright.gov/rulemaking/case-act-implementation/active-proceedings/">https://copyright.gov/rulemaking/case-act-implementation/active-proceedings/</a>. If electronic submission of comments is not feasible due
to lack of access to a computer or the internet, please contact the
Office using the contact information below for special instructions.

FOR FURTHER INFORMATION CONTACT: Megan Efthimiadis, Assistant to the
General Counsel, by email at <a href="/cdn-cgi/l/email-protection#4d20282b390d2e223d343f242a2539632a223b"><span class="__cf_email__" data-cfemail="7a171f1c0e3a19150a0308131d120e541d150c">[email&#160;protected]</span></a>, or by telephone at
202-707-8350.

SUPPLEMENTARY INFORMATION:

I. Background

On December 27, 2020, the President signed into law the Copyright
Alternative in Small-Claims Enforcement (``CASE'') Act of 2020.\1\ The
CASE Act directs the Copyright Office to establish the Copyright Claims
Board (``CCB''), a voluntary, alternative forum to federal court for
parties to seek resolution of copyright disputes that have a low
economic value (``small copyright claims'').\2\ The CCB's creation does
not displace or limit a party's ability to bring small copyright claims
in federal court, but rather provides a streamlined and cost-effective
alternative forum to decide those claims.\3\ The CCB has authority to
hear copyright infringement claims, claims seeking a declaration of
non-infringement, and misrepresentation claims under section 512(f) of
title 17.\4\ Participation in the CCB is voluntary for all parties,\5\
and all determinations are non-precedential.\6\ Congress directed that
the CCB begin operations by December 27, 2021, though the Register may,
for good cause, extend that deadline by not more than 180 days.\7\
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\1\ Public Law 116-260, sec. 212, 134 Stat. 1182, 2176 (2020).
\2\ See, e.g., H.R. Rep. No. 116-252, at 18-20 (2019); S. Rep.
No. 116-105, at 7-8 (2019). Note, the CASE Act legislative history
cited is for H.R. 2426 and S. 1273, the CASE Act of 2019, a bill
nearly identical to the CASE Act of 2020. See H.R. 2426, 116th Cong.
(2019); S. 1273, 116th Cong. (2019). In developing the CASE Act,
Congress drew on model legislation in the Office's 2013 policy
report, Copyright Small Claims, <a href="https://www.copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf">https://www.copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf</a> (``Copyright Small
Claims''). Congress also incorporated the Office's report and
supporting materials into the statute's legislative history. H.R.
Rep. No. 116-252, at 19; S. Rep. No. 116-105, at 2.
\3\ H.R. Rep. No. 116-252, at 17; S. Rep. No. 116-105, at 2-3,
9.
\4\ 17 U.S.C. 1504(c)(1)-(3). The CCB cannot issue injunctive
relief, but can require that an infringing party cease or mitigate
its infringing activity in the event such party agrees and the
agreement is reflected in the proceeding's record. Id. at
1504(e)(2)(A)(i), (e)(2)(B). This provision also applies to parties
making knowing material misrepresentations under section 512(f). Id.
at 1504(e)(2)(A)(ii).
\5\ See id. at 1504(a); H.R. Rep. No. 116-252, at 17, 21; S.
Rep. No. 116-105, at 3, 11.
\6\ H.R. Rep. No. 116-252, at 21-22, 33; S. Rep. No. 116-105, at
14.
\7\ Public Law 116-260, sec. 212(d), 134 Stat. at 2199.
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The CASE Act directs the Register of Copyrights to establish the
regulations by which the CCB will conduct its proceedings, subject to
the provisions of chapter 15 and relevant principles of law under title
17.\8\ On March 26, 2021, the Copyright Office published a notification
of inquiry (``NOI'') inviting public comment on various aspects of the
CCB's operations, which the Office noted would be established through a
series of rulemakings.\9\ The Office has issued two previous notices
\10\ and one final rule \11\ related to CCB procedures. In this notice,
the Office proposes procedures related to conducting an active
proceeding, post-determination review, smaller claims, and the conduct
of parties. The Office will issue additional proposed rules related to
CCB proceedings in one or more subsequent rulemakings.
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\8\ 17 U.S.C. 1506(a)(1).
\9\ 86 FR 16156 (Mar. 26, 2021). Comments received in response
to the March 26, 2021 NOI are available at <a href="https://www.regulations.gov/document/COLC-2021-0001-0001/comment">https://www.regulations.gov/document/COLC-2021-0001-0001/comment</a>. References
to these comments are by party name (abbreviated where appropriate),
followed by ``Initial NOI Comments'' or ``Reply NOI Comments,'' as
appropriate.
\10\ 86 FR 53897 (Sept. 29, 2021); 86 FR 49273 (Sept. 2, 2021).
\11\ 86 FR 46119 (Aug. 18, 2021).
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II. Proposed Rule

A. Management of Parties

1. Joinder
The CASE Act provides that a claim or counterclaim shall be
dismissed without prejudice if the CCB determines that it is unsuitable
for determination due to a failure to join a necessary party.\12\ The
statute does not define or otherwise address procedures governing
necessary parties. One comment proposed that the Office adopt Rules 19
and 20 of the Federal Rules of Civil Procedure (``FRCP''), which speak
to joinder of parties, to CCB proceedings.\13\ The Office has
determined, however, that permitting joinder of third parties could
significantly alter the nature of a proceeding and consequently could
impact the notice provided to parties in some cases--for example, where
a respondent declined to exercise its right to opt out based on its
understanding of the parties and scope of the proceeding. Instead, the
Office proposes that existing parties who believe that a necessary
third party has not been joined should raise this issue with the CCB by
filing a short letter setting forth the basis of such belief. After any
other party already in the proceeding has an opportunity to file an
opposing letter, the CCB will evaluate the alleged deficiency and, if
it determines that a necessary party has not been joined, it will
dismiss the proceeding without prejudice as unsuitable. The claimant
may refile its claim with the necessary party included.
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\12\ 17 U.S.C. 1506(f)(3).
\13\ Am. Intell. Prop. L. Ass'n (``AIPLA'') Initial NOI Comments
at 7.
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The proposed rule also provides that a necessary third party may
file a request to intervene with the CCB. Each party must then file a
response stating whether the party agrees that the proposed intervenor
is a necessary party and provide the basis for that position. The CCB
will evaluate the request and may hold a conference with all parties

[[Page 69891]]

and the third party requesting intervention. If the CCB determines that
the intervening party is not a necessary party, it will deny the
request and the proceeding will continue with the original parties. If
the CCB determines that the intervening party is a necessary party, it
will permit the intervening party to join the proceeding, as long as no
other party opposes the intervention. A party opposing the intervention
of a necessary party will not need to provide reasons for its
opposition. If any party opposes the intervention, the proceeding will
be dismissed without prejudice. The proposed rule thus permits a
necessary party to be joined only if all parties agree.
The Office welcomes any comments as to whether the statute permits
joinder of parties as outlined in the proposed rule and the
appropriateness of the procedures proposed herein.
2. Dismissal
Under the statute, a claimant may elect to voluntarily dismiss a
claim, respondent, or proceeding by written request at any time before
a respondent files a response to the claim.\14\ Similarly, a
counterclaimant may elect to voluntarily dismiss a counterclaim by
written request before the claimant files a response to the
counterclaim.\15\ Upon receipt of such a written request, the CCB shall
dismiss the claim or counterclaim, as the case may be, without
prejudice.\16\
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\14\ 17 U.S.C. 1506(q)(1).
\15\ Id. at 1506(q)(2).
\16\ Id. at 1506(q)(1)-(2).
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The statute is not explicit as to whether a party may voluntarily
withdraw a claim or counterclaim after a response to it has been filed.
The Office's proposed rule addresses this scenario and provides that,
if a written request to withdraw a claim or a counterclaim is received
after the response has been filed, the CCB will dismiss the claim or
counterclaim with prejudice, unless all parties have entered into a
written stipulation that the claim or counterclaim will be dismissed
without prejudice or unless the CCB determines the dismissal should be
without prejudice in the interests of justice. This procedure provides
a mechanism for a claimant or counterclaimant to unilaterally withdraw
a claim after a response has been served, which furthers the statutory
goal of providing a voluntary forum for the resolution of claims.\17\
The proposed rule also protects the interests of a responding party,
who has invested time and resources into the proceeding, and is in line
with the FRCP.\18\ The Office welcomes comments on the advisability of
including a procedure for unilaterally withdrawing a claim or
counterclaim after the response has been served and whether resulting
dismissals should be with or without prejudice. To the extent
commenters believe that such dismissals typically should be with
prejudice, the Office invites comment on whether the CCB should be able
to dismiss a case without prejudice if the circumstances show that such
action is in the interests of justice.
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\17\ H.R. Rep. No. 116-252, at 17.
\18\ Fed. R. Civ. P. 41.
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The proposed rule also provides that a written request to withdraw
a claim or counterclaim should include a brief statement signed by the
party seeking dismissal. In addition, it provides that claims or
counterclaims that are voluntarily withdrawn before a response is filed
may be dismissed with prejudice if all parties agree in a written
stipulation that is filed with the CCB. This option is intended to
facilitate early settlement negotiations. Voluntary dismissal will not
impact any other claims or counterclaims in the proceeding.
3. Default and Failure To Prosecute
i. Default Determinations
The CCB may enter a default determination in an active proceeding
where the respondent ``has failed to appear or has ceased participating
in the proceeding.'' \19\ The statute empowers the Office to establish
additional requirements that must be met before the CCB may issue a
default determination.\20\ The legislative history notes that the
statute ``establishes a strong presumption against default judgments''
and provides greater protections against default than those available
in federal court proceedings.\21\ The Office accordingly believes it is
important to have safeguards against defaults where possible, and to
ensure that parties are given adequate notice before a default can be
issued.
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\19\ 17 U.S.C. 1506(u).
\20\ Id.
\21\ H.R. Rep. No.116-252, at 24.
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To obtain a default determination, the claimant must still ``submit
relevant evidence and other information in support of the claimant's
claim and any asserted damages,'' even where the respondent has failed
to appear or has ceased participating.\22\ The CCB then will evaluate
the evidence, along with any other requested submissions, and determine
whether the materials provided are sufficient to support a finding in
the claimant's favor and, if so, any appropriate relief and
damages.\23\ If the CCB then determines that a default determination is
appropriate, it must prepare the determination and provide a written
notice to the respondent through all known addresses, including email
addresses, and provide the respondent thirty days to file a submission
in opposition to the default determination.\24\ The CCB must consider a
timely response from the respondent, ``and, after allowing the other
parties to address such submissions, [shall] maintain, or amend its
proposed determination as appropriate, and the resulting determination
shall not be a default determination.'' \25\ If the respondent fails to
respond to the notice, the CCB ``shall proceed to issue the default
determination,'' although the CCB may later vacate such determination
``in the interests of justice.'' \26\ A federal court may also vacate
the default determination ``if it is established that the default . . .
was due to excusable neglect.'' \27\
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\22\ 17 U.S.C. 1506(u)(1).
\23\ Id.
\24\ Id. at 1506(u)(2).
\25\ Id. at 1506(u)(3).
\26\ Id. at 1506(u)(4).
\27\ Id. at 1508(c)(1)(C).
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The Office requested comments concerning ``any issues that should
be considered relating to a respondent's default, including but not
limited to regulations regarding proof of damages in default
proceedings.'' \28\ Some commenters urged the Office to adopt
regulations designed to reduce the risk of the CCB becoming a ``default
judgment mill.'' \29\ Suggestions included regulations concerning the
specific form of evidence a claimant must produce in support of a
damages claim,\30\ or a presumption against or even a prohibition on
statutory damages awards in cases of default.\31\ The Office is
concerned, however, that regulations that increase the claimant's
burden in proving damages or circumscribe the kinds of damages
available in the case of a default beyond what is already provided in
the statute could incentivize respondents to avoid engaging with CCB
proceedings due to the perception that the claimant is not likely to be
able to prove or to be awarded significant damages. This could
increase, not reduce, the risk that the CCB would be perceived as a
default

[[Page 69892]]

judgment mill. The proposed rule accordingly does not include such
provisions.
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\28\ 86 FR at 16162 (citing H.R. Rep. No. 116-252, at 24).
\29\ Authors All. Initial NOI Comments at 7; Engine Initial NOI
Comments at 8-9.
\30\ AIPLA Initial NOI Comments at 7; Ben Vient Initial NOI
Comments at 4.
\31\ Engine Initial NOI Comments at 9; Univ. of Mich. Libr.
Initial NOI Comments at 3.
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Commenters also urged the Office to adopt regulations ensuring that
the claimant's submissions are carefully scrutinized, that service was
effective,\32\ and that the CCB considers any applicable defenses.\33\
Others opposed a regulation allowing claimants to move for a default
determination, rather than providing the CCB with exclusive authority
to initiate default proceedings.\34\ The Office appreciates these
comments and has endeavored to establish a multistep process designed
to make default less likely through the use of built-in safeguards
encouraging respondents to engage in the process, while also
considering the interests of claimants.
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\32\ Motion Picture Ass'n, Recording Indus. Ass'n of Am. &
Software and Info. Ass'n of Am. (``MPA, RIAA & SIIA'') Initial NOI
Comments at 16; Ryan Fountain Initial NOI Comments at 2.
\33\ Engine Initial NOI Comments at 9.
\34\ Copyright Alliance, Am. Photographic Artists, Am. Soc'y for
Collective Rights Licensing, Am. Soc'y of Media Photographers, The
Authors Guild, CreativeFuture, Digital Media Licensing Ass'n,
Graphic Artists Guild, Indep. Book Pubs. Ass'n, Music Creators N.
Am., Nat'l Music Council of the United States, Nat'l Press
Photographers Ass'n, N. Am. Nature Photography Ass'n, Prof.
Photographers of Am., Recording Academy, Screen Actors Guild-Am.
Fed. of Television and Radio Artists, Soc'y of Composers &
Lyricists, Songwriters Guild of Am. & Songwriters of N. Am.
(``Copyright Alliance, et al.'') Reply NOI Comments at 16-17.
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The Office, as allowed but not required under section 1506(u), has
proposed a notice system with extra safeguards to avoid defaults where
possible. Under the proposed rule, where there has been a missed
deadline or requirement, the CCB, following a party's request or on its
own initiative, may issue a notice, which will be delivered by mail and
to known email addresses for the respondent or counterclaim respondent,
explaining that failure to participate may result in the CCB entering a
default determination against that party. This notice will explain the
meaning and consequences of a default determination and provide the
respondent with thirty days from the notice to cure the missed deadline
or requirement. If the respondent has not re-engaged by curing the
missed deadline or otherwise responding to the notice within fifteen
days into the thirty-day window, the CCB will send a second notice to
the respondent that re-attaches the first notice and reminds the
respondent that it must cure the missed deadline or requirement by the
thirty-day deadline.
If the respondent cures the missed deadline or requirement within
the thirty-day window, the proceeding will resume and the CCB will
issue a revised scheduling order, if necessary. If the respondent fails
to cure the missed deadline but otherwise responds with an indication
of an intent to re-engage in the proceeding, the CCB will consider the
response and may either provide the respondent with additional time to
cure the missed deadline, or may proceed with the default process, to
avoid, for instance, a respondent continually taking extensions on
deadlines without permission and only acting when defaults are issued.
If the respondent fails to cure the missed deadline or requirement
within the thirty-day window and does not otherwise request and receive
additional time to cure the missed deadline, the CCB may proceed with
the default process by requiring the claimant to submit evidence in
support of a default determination. Such evidence shall take the form
of the direct written testimony that the claimant ordinarily would put
forward prior to a determination on the merits, and the CCB may request
additional evidence that the claimant has within its possession. The
CCB will then consider such evidence, taking into account any
meritorious defenses that the respondent may have had, and determine
whether the evidence is sufficient to support a finding in favor of the
claimant. If so, the CCB will determine the appropriate relief and
damages, if any, and prepare a proposed default determination that
includes the CCB's finding in favor of the claimant, the damages
awarded, if any, and the dismissal of any counterclaims asserted by the
respondent. The CCB will provide written notice to the respondent of
the default determination and its legal significance, and attach the
proposed default determination and provide the respondent with thirty
days from the notice to respond.
If the respondent responds to this default determination notice by
providing evidence in opposition, the CCB will review the respondent's
submissions and may request additional information, including written
testimony. If the respondent indicates an intent to re-engage in the
proceeding, but does not submit timely evidence, the CCB will have the
discretion to either grant additional time to submit evidence or
proceed with issuing the default determination. The claimant will have
an opportunity to respond to any submissions from the respondent, and
the CCB, in its discretion, may elect to hold a hearing. After
considering any additional evidence or other information provided by
the parties, the CCB will either maintain or amend its proposed
determination. As the CCB will then have considered evidence from both
parties, the resulting final determination will not be classified as a
default determination. The effect of this classification is that the
resulting final determination may not be challenged as a default
determination in a federal district court pursuant to 17 U.S.C.
1508(c). The respondent may, however, seek reconsideration as outlined
in 17 U.S.C. 1506(w) and the accompanying regulations in part 230 of
title 37.
If the respondent fails to respond to the notice of pending default
determination, the CCB will issue the determination as a final
determination. The respondent may challenge the default determination
in federal court within ninety days of its issuance or, provided that
it has not yet initiated proceedings in federal court, may submit a
request to the CCB that the default determination be vacated. The
claimant will have an opportunity to respond to this request, and both
parties will follow the general procedures for reconsideration requests
with respect to their submissions. The CCB may then vacate the default
determination if it finds that vacating the determination is in the
interests of justice.
The statute does not speak to the disposition of a proceeding where
the claimant's evidence is insufficient to support a finding in its
favor. Under the proposed rule, if the CCB determines that the
claimant's evidence is insufficient, it will dismiss the proceeding
without prejudice. The Office believes that this approach is
appropriate given that the claimant may have been unable to
sufficiently gather supporting evidence through discovery due to the
default of the respondent. A dismissal with prejudice thus could
unfairly penalize a claimant and reward a defaulting respondent.
While the statute is generally designed to be lenient and to avoid
defaults, in order to avoid abuse of the system, the proposed rule
permits the CCB, in its discretion, to proceed with the default process
without issuing the two notices described above, and to move forward
with requiring the claimant to submit evidence in support of a default
determination if a respondent misses a third deadline in a proceeding
without good cause. This provision is aimed at encouraging timely
participation and preventing respondents from repeatedly using the
default provisions as a backdoor extension for deadlines. The Office
appreciates any comments concerning whether such a provision is
advisable, and whether there are any other

[[Page 69893]]

appropriate and effective methods for preventing abuse of the default
process.
ii. Failure To Prosecute
The statute establishes a procedure whereby proceedings may be
dismissed due to the failure of a claimant to complete service or to
otherwise participate in the proceeding. Under the statute, the CCB
will dismiss a respondent or an entire proceeding, as is applicable,
without prejudice where a claimant does not complete service on one or
more respondents within ninety days of the CCB approving the claim.\35\
Once a proceeding becomes active, if a claimant (including a
counterclaimant) fails to meet one or more deadlines or requirements
set forth in the CCB's scheduling order without justifiable cause, the
CCB may dismiss the claims after providing the claimant with written
notice and a thirty-day period to respond and cure the missed
deadline.\36\ If the claimant does not comply, the CCB, after
considering any response the claimant provides other than actually
complying with the requirements of the missed deadline, may dismiss the
claims.\37\ As with default determinations, the CCB may subsequently
vacate a dismissal ``in the interests of justice,'' \38\ and a federal
court may vacate the determination ``if it is established that the
default or failure was due to excusable neglect.'' \39\
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\35\ 17 U.S.C. 1506(v)(1).
\36\ Id. at 1506(v)(2).
\37\ Id.
\38\ Id.
\39\ Id. at 1508(c)(1)(C).
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The Office solicited comments concerning regulations governing a
claimant's failure to prosecute its claims. One commenter suggested
that the regulations permit a respondent to move for dismissal for
failure to prosecute,\40\ while others opposed such a regulation.\41\
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\40\ Amazon Initial NOI Comments at 8.
\41\ Copyright Alliance, et al. Reply NOI Comments at 16-17.
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The proposed rule concerning a claimant's failure to complete
service creates a distinction between necessary parties and non-
necessary parties. If a claimant fails to timely serve a respondent
whose participation is not necessary to adjudicate the claims against
other parties, the CCB will dismiss that respondent from the proceeding
without prejudice, and the proceeding will continue against any
remaining respondents. On the other hand, if a claimant fails to timely
serve a respondent who is a necessary party, the CCB will dismiss the
proceeding without prejudice. If the claimant does not timely serve
each and every respondent, the CCB will dismiss the proceeding without
prejudice.
The proposed rule pertaining to a claimant's failure to prosecute
generally mirrors the provisions regarding a respondent's default.
Under the proposed rule, at the request of a party or on its own
initiative, the CCB may issue a notice to the claimant, which will be
delivered by mail and to all known email addresses for the claimant,
that failure to prosecute may result in the CCB issuing a determination
dismissing the claimant's claims. This notice will explain the legal
effects of such a determination and provide the claimant with thirty
days to cure the missed deadline or requirement. If the claimant has
not re-engaged fifteen days into this thirty-day window, the CCB will
send a second notice to the claimant that re-attaches the first notice
and reminds the claimant that it must cure the missed deadline or
requirement by the thirty-day deadline.
If the claimant cures the missed deadline or requirement within the
thirty-day window, the proceeding will resume and the CCB will issue a
revised scheduling order, if necessary. If the claimant fails to cure
the missed deadline but otherwise responds with an indication of an
intent to re-engage in the proceeding, the CCB will consider the
response and may either provide the claimant with additional time to
cure the missed deadline or requirement, or may proceed with issuing a
determination dismissing the claims. If the claimant fails to cure the
missed deadline or requirement within the thirty-day window and does
not otherwise request and receive additional time to cure the missed
deadline, the CCB will issue a determination dismissing the claims.
Such a dismissal will be with prejudice and may include an award of
attorneys' fees and costs, if appropriate. As with a default
determination, the claimant may challenge the determination in federal
court within ninety days of its issuance or, provided that it has not
yet initiated proceedings in federal court, may submit a request to the
CCB that the determination be vacated. The respondent will have an
opportunity to respond to this request, and both parties will follow
the general procedures for reconsideration requests with respect to
their submissions. The CCB may then vacate the determination in the
interests of justice.
The Office welcomes any comments concerning the proposed rules
concerning a claimant's failure to proceed and specifically, whether
they strike the proper balance between the rights and interests of a
respondent and a claimant.
4. Conduct of Parties
The statute contains several provisions that are designed to deter
and address improper conduct from parties in proceedings before the
CCB. These include provisions authorizing the CCB to penalize bad-faith
conduct by awarding costs and attorneys' fees, and to bar repeat bad-
faith actors from initiating proceedings before the CCB for a period of
twelve months.\42\
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\42\ 17 U.S.C. 1506(y)(2).
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i. Bad-Faith Conduct
Under the statute, the CCB may award reasonable costs and
attorneys' fees where it determines that ``a party pursued a claim,
counterclaim, or defense for a harassing or other improper purpose, or
without a reasonable basis in law or fact, . . . unless inconsistent
with the interests of justice.'' \43\ Such an award is typically
limited to $5,000, but where the party appeared pro se, the award may
only include costs and is capped at $2,500.\44\ The award may be
increased beyond the statutory limit ``in extraordinary circumstances''
where there is a demonstrated ``pattern or practice of bad faith
conduct.'' \45\ The statute also authorizes the CCB to bar a party from
initiating claims for a period of twelve months if it determines that
the party engaged in certain bad-faith conduct more than once in a
twelve-month period.\46\ If it reaches such a determination, the CCB
must also dismiss without prejudice any pending proceedings that were
commenced by the bad-faith actor, except that dismissal of any active
proceeding requires the written consent of the respondent.\47\
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\43\ Id.
\44\ Id. at 1506(y)(2)(A).
\45\ Id. at 1506(y)(2)(B).
\46\ Id. at 1506(y)(3).
\47\ Id.
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In response to the NOI, commenters suggested that the Office create
a streamlined process or standardized forms to report bad-faith conduct
\48\ and publish a list of bad-faith actors who have been barred from
using the CCB.\49\ Commenters also recommended that the Office
establish rules preventing copyright ``trolls'' from abusing the

[[Page 69894]]

CCB.\50\ One commenter suggested that the regulations include a
mechanism, similar to Anti-SLAPP motions,\51\ whereby a respondent can
make an early motion to dismiss a bad-faith claim.\52\
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\48\ Amazon Reply NOI Comments at 4; Amazon Initial NOI Comments
at 11-12; Copyright Alliance, et al. Initial NOI Comments at 42.
\49\ Copyright Alliance, et al. Reply NOI Comments at 20;
Comput. & Comms's Indus. Assoc. & internet Assoc. (``CCIA & IA'')
Initial NOI Comments at 7-8.
\50\ Elec. Frontier Found. (``EFF'') Initial NOI Comments at 3;
John Boushka Initial NOI Comments at 1.
\51\ Anti-SLAPP statutes are laws designed to deter strategic
lawsuits against public participation (``SLAPP''), that is, lawsuits
that have the primary purpose of suppressing legitimate criticism or
opposition. Such statutes set forth a special form of motion
practice, referred to as an ``Anti-SLAPP motion,'' that permits the
early dismissal of such lawsuits. See, e.g., DC Comics v. Pac.
Pictures Corp., 706 F.3d 1009, 1013 (9th Cir. 2013) (discussing
California Anti-SLAPP statute).
\52\ Gordon Fiermark Initial NOI Comments at 1.
---------------------------------------------------------------------------

The proposed rule makes both parties and party representatives
subject to various bad-faith conduct provisions. Under the proposed
rule, the CCB will review, as part of its determination of an award of
costs or attorneys' fees, whether a party or its representative engaged
in bad-faith conduct. The Office has defined ``bad-faith conduct''
consistent with the statute, and the rule clarifies that such conduct
may occur at any time during a proceeding. At any point prior to
determination, the CCB may order a party or its representative to show
cause why certain conduct does not constitute bad-faith conduct. The
party or representative will have three days to file a response.
A party may also raise allegations of bad-faith conduct. To do so,
the party must file a letter describing the alleged conduct, attaching
any relevant exhibits, and seeking a conference. The accused party has
seven days in which to file a response if it wishes. After reviewing
the parties' submissions, the CCB must either make a finding that no
bad-faith conduct occurred or schedule a conference to address the
request. The CCB will consider the parties' letters, any arguments on
the issue, and the accused party's behavior in other CCB proceedings in
the preceding twelve months in determining whether to award attorneys'
fees and costs. If the CCB determines that an award of attorneys' fees
and costs is appropriate, the award will be included in the final
determination and will be in accordance with the allowable amounts set
forth in the statute.
The proposed rule also provides that a party or representative who
engages in bad-faith conduct on more than one occasion within a twelve-
month period will be barred from initiating claims before the CCB for a
period of twelve months. The CCB must dismiss any pending proceedings
brought by a party who engaged in repeated bad-faith conduct within the
requisite time period. In its discretion, the CCB may also bar a
representative from participating further in any claims pending before
the CCB, after consideration of any hardship to parties represented by
that person. If a representative is barred from further representing a
party in a pending claim, the CCB will consider requests from that
party asking the Board to provide additional time or a stay of the
pending action to allow that party to find other representation. As
with the proposed rule pertaining to bad-faith conduct within a
proceeding, allegations of multiple instances of bad-faith conduct may
be raised either by the CCB at any point during a proceeding through an
order to show cause or by a party at any point after a proceeding has
been initiated. A party may raise such allegations through a letter
which describes the instances of bad-faith conduct, attaches relevant
exhibits, and requests a conference. A respondent will not waive the
ability to opt out of the proceeding if it raises allegations of bad-
faith conduct with the CCB prior to the expiration of the period to opt
out. The accused party will have an opportunity to respond, regardless
of whether the allegations are raised by the CCB or another party.
After reviewing the parties' submissions, the CCB will either make
a finding that no bad-faith conduct occurred or hold a conference to
address the allegations. The CCB will consider the parties' letters,
any arguments on the issue, and the accused party's behavior in other
proceedings before the CCB. If an accused party has been subject to an
award of attorneys' fees or costs by the CCB due to bad-faith conduct
at any point in the prior twelve months, then that will be considered
an additional instance of bad-faith conduct for purposes of
establishing the bar on initiating claims. However, the CCB may also
consider other evidence of bad-faith conduct by the accused party, even
if such conduct ultimately did not result in a formal finding or an
award of attorneys' fees or costs. For example, the CCB may consider
instances in which the accused party filed claims that were found to be
noncompliant, or bad-faith proceedings that were initiated by the
accused party where the respondent opted out. If the CCB determines
that the accused party has engaged in bad-faith conduct on more than
one occasion in a twelve-month period, the CCB will issue a written
determination that provides that the accused party will be barred from
initiating claims before the CCB for twelve months and, where the bad-
faith actor is a party and not a representative, that any pending
proceedings commenced by the party be dismissed without prejudice, with
the exception that the dismissal of active proceedings requires the
written consent of the respondent in those proceedings.
The proposed rule does not provide for the publication of a list of
bad-faith actors who have been barred from initiating proceedings, as
some commenters suggested, because the Office believes that such a list
would be unduly harsh, especially for non-attorneys. The CCB will,
however, make certain records and findings related to bad-faith conduct
public, so that parties are able to identify patterns of bad-faith
conduct and bring them to its attention. The Copyright Claims Attorneys
will be positioned to identify parties who, notwithstanding being
barred from initiating proceedings, do so anyway in spite of a bar and
will classify such proceedings as noncompliant. The Office welcomes any
other comments concerning the proposed rules for bad-faith conduct,
including whether there should be publication of a list of bad-faith
actors.
ii. Attorney Conduct
The Office also requested comments regarding the adoption of
regulations pertaining to the conduct of attorneys, such as whether to
prohibit attorneys who have been suspended from practicing law from
participating in CCB proceedings and whether to adopt rules addressing
such issues as conduct and discipline, duties of candor, fraud
prevention, and, if necessary, sanction, suspension, exclusion, or
censure.\53\ Commenters generally agreed on the advisability of such
regulations. Some commenters suggested that the CCB should have the
ability to bar or suspend attorneys who engage in bad-faith
conduct,\54\ and some suggested that the CCB should report such
attorneys to their respective bar associations.\55\ Several commenters
agreed that disbarred, suspended, or sanctioned attorneys should not be
permitted to practice before CCB.\56\ Other suggestions were to have
the CCB establish rules of professional conduct \57\ as well as
requirements that attorneys representing

[[Page 69895]]

a party identify themselves; an attorney appearance include a
representation that the attorney is a member of a bar in good standing;
and an attorney who is aware of bad-faith behavior committed by another
attorney inform the CCB.\58\
---------------------------------------------------------------------------

\53\ 86 FR 16164-65.
\54\ CCIA & IA Initial NOI Comments at 7.
\55\ Id.; MPA, RIAA & SIIA Initial NOI Comments at 21.
\56\ Am. Bar Ass'n Intell. Prop. L. Sec. (``ABA-IPL'') Reply NOI
Comments at 8-9; Google Initial NOI Comments at 2; Univ. of Mich.
Libr. Initial NOI Comments at 7.
\57\ Univ. of Mich. Libr. Initial NOI Comments at 7.
\58\ Copyright Alliance, et al. Initial NOI Comments at 42.
---------------------------------------------------------------------------

The proposed rule requires attorneys or other representatives to
file a notice of appearance that consists of the name of the case, the
attorney's bar number (where one exists) in a state in which the
attorney has been admitted to practice, the case number, the person on
whose behalf the appearance is made, and the attorney or
representative's contact information, including email address and
telephone number. Attorneys or other representatives must file a
similar notice when withdrawing an appearance. Except for law student
representatives, attorneys must be a member in good standing of a
state, the District of Columbia, or a United States territory or
commonwealth bar. Attorneys and representatives must file a statement
under penalty of perjury that they are currently qualified and
authorized to represent the party on whose behalf they have appeared.
As some comments suggested, the proposed rule prohibits attorneys
or representatives who have been disbarred by any court from
representing parties before the CCB. If an attorney in an active or
pending proceeding is disbarred after a notice of appearance is made,
the attorney must report the disbarment to the CCB and withdraw
representation. The proposed rule does not prohibit disbarred attorneys
or representatives from representing themselves pro se where they are a
party in a proceeding.
The proposed rule also makes clear that attorneys and
representatives who appear before the CCB have a duty of candor and
impartiality toward the CCB and a duty of fairness towards opposing
parties and counsel. The proposed rule does not establish independent
rules of professional conduct. Instead, the CCB will look to the
District of Columbia's rules of professional conduct and the rules in
the jurisdiction in which the representative practices in determining
whether an attorney or representative has breached these duties.
The proposed rule empowers the CCB to bar attorneys or
representatives who violate any of these standards of conduct, or are
otherwise found to be engaging in bad-faith conduct, from representing
parties before the CCB for twelve months. The Office agrees with
commenters that such a provision is advisable, and believes the
Register has the authority under section 1506(a)(1) to prescribe
regulations governing the conduct of attorneys in proceedings before
the CCB. Such authority would seem to necessarily include the ability
to temporarily bar attorneys from appearing before the CCB.
Furthermore, the statute expressly authorizes a twelve-month bar for
parties who engage in repeated bad-faith conduct,\59\ and defines the
term ``party'' to include ``the attorney of a party, as applicable.''
\60\ The Office invites comments concerning the CCB's authority to
discipline or bar attorneys or representatives in this way and whether
there are any other methods available to the CCB that should be
considered.
---------------------------------------------------------------------------

\59\ 17 U.S.C. 1506(y).
\60\ Id. at 1501(3)(B).
---------------------------------------------------------------------------

5. Limitation on Cases
The statute provides the Office with the option of establishing
regulations to limit the number of proceedings a party may bring each
year ``in the interests of justice and the administration of the
Copyright Claims Board.'' \61\ Congress explained that this power
``functions as both a docket management tool . . . and as protection
against abusive conduct.'' \62\ In the NOI, the Office indicated its
expectation that it would exercise this authority, subject to re-
evaluation after the CCB is able to determine the size of its
workload.\63\
---------------------------------------------------------------------------

\61\ Id. at 1504(g).
\62\ H.R. Rep. No. 116-252, at 31.
\63\ 86 FR 16164.
---------------------------------------------------------------------------

The Office sought public comment relating to the initial limitation
of the permitted number of proceedings a claimant may file each
year.\64\ Commenters were generally supportive of a limit on the number
of claims a party may bring in a year, and suggested limits that ranged
from two to four hundred cases.\65\ A few commenters opposed a limit
due to concerns that it would disproportionately disadvantage claimants
who hold copyrights in many works \66\ or that a strict limitation
would run the risk of being arbitrary and capricious.\67\ One commenter
suggested a similar restriction be imposed on firms and agents,
prohibiting them from representing more than one claim per client per
year.\68\ Other commenters suggested certain exemptions from the
limitation, including for counterclaims,\69\ for proceedings where a
respondent ultimately opts out or that otherwise do not become
active,\70\ and for organizations acting on behalf of multiple rights
holders.\71\ One commenter suggested that the Office consider the
financial situation of the claimant and the market price of the
infringed work in determining the limit.\72\
---------------------------------------------------------------------------

\64\ Id.
\65\ CCIA & IA Initial NOI Comments at 6 (10 cases); Copyright
Alliance, et al. Initial NOI Comments at 41 (20 cases for first
year, with discretion to permit more cases for good cause and in
interests of justice); Davis Jr. & Luce Initial NOI Comments at 3
(two cases seeking damages over $2500); George LaBonty Initial NOI
Comments at 1; Univ. of Mich. Initial NOI Comments at 6-7 (10-12
cases); Verizon Initial NOI Comments at 6-7 (four cases).
\66\ MPA, RIAA & SIIA Initial NOI Comments at 19-20.
\67\ Science Fiction and Fantasy Writers of Am. Reply NOI
Comments at 6.
\68\ Verizon Initial NOI Comments at 6-7.
\69\ Copyright Alliance, et al. Initial NOI Comments at 41.
\70\ Id. at 41-42; MPA, RIAA & SIIA Initial NOI Comments at 20.
\71\ Copyright Alliance, et al. Initial NOI Comments at 41.
\72\ Niskanen Center Initial NOI Comments at 5.
---------------------------------------------------------------------------

Upon consideration of these comments, the Office has proposed a
requirement that a party may file no more than ten proceedings in any
twelve-month period. The Office believes this limit will help to ensure
that the CCB is able to effectively manage its docket, particularly
given that the Office has not proposed an upper limit on the total
number of proceedings that may be pending before the CCB, as discussed
further below. The Office also seeks to avoid the possibility that
proceedings may be overwhelmed by just a few claimants. A private
attorney or law firm may represent a claimant in no more than forty
proceedings in any twelve-month period. A proceeding will count toward
this limitation as soon as it is filed, regardless of how it is
resolved (e.g., even if it is found noncompliant or unsuitable, is
voluntarily dismissed, or is dismissed due to a respondent's opt out).
However, amendments to a claim or the filing of counterclaims will not
count toward this limit. Any action taken for the sole purpose of
avoiding this limitation will constitute bad-faith conduct under the
proposed rule. At this time, the proposed rule does not limit the
maximum number of total proceedings that may be filed before the CCB by
all parties combined.
The proposed rule also provides the CCB with the ability to impose
a temporary limitation on the number of proceedings that may be pending
before it or the number of proceedings that a party or representative
may have pending before the CCB in a twelve-month period. Such a
limitation would remain in place for a period that may not exceed six
months in the absence of a notice and comment rulemaking. This

[[Page 69896]]

provision is intended to enable the CCB to react quickly in the event
that it is inundated with more claims than it is able to handle.
Claimants confronted with a potential statute of limitations issue
because of the moratorium may file a claim accompanied by a declaration
under penalty of perjury attesting that the statute of limitations will
expire during the stay and setting forth facts in support of that
conclusion. If the CCB determines that the statute of limitations
likely will expire during the stay based on the facts set forth in the
declaration, the CCB will hold the claim in abeyance and conduct its
compliance review of the claim after the end of the moratorium.
The Office welcomes any comments as to whether these limitations
strike the proper balance between the interests of the parties and the
efficient management of the CCB's work.

B. Management of Proceedings

1. Applicability of Federal Rules of Civil Procedure and Federal Rules
of Evidence
The statute includes a general prohibition on formal motion
practice, subject to certain exceptions, but permits parties to make
various ``requests.'' \73\ The statute also sets forth the types of
evidence that the CCB may consider in a proceeding--namely, relevant
documentary and other nontestimonial evidence as well as relevant
testimonial evidence submitted under penalty of perjury.\74\ The
statute does not otherwise speak to the applicability of the FRCP and
the Federal Rules of Evidence (``FRE'').
---------------------------------------------------------------------------

\73\ 17 U.S.C. 1506(m).
\74\ Id. at 1506(o).
---------------------------------------------------------------------------

The Office solicited comments regarding whether it should adopt any
provisions of the FRCP in areas relevant to the CCB's operations,
potentially with modifications to simplify them and make them more
accessible.\75\ The Office received several comments on this issue with
wide-ranging recommendations on the applicability of the Federal Rules
to CCB proceedings. Commenters suggested additional models to look to
beyond the Federal Rules \76\ and recommended specific provisions that
they thought the CCB should adopt, such as those regarding initial
status conferences \77\ and mechanisms for summary dismissal of
unsuitable claims.\78\ Several commenters agreed that CCB proceedings
should be more flexible and permissive than federal proceedings,\79\
especially with respect to the admission of evidence.\80\ Some
commenters emphasized that the CCB should make use of standardized
forms, as opposed to the more customized approach to submissions in
federal court proceedings.\81\
---------------------------------------------------------------------------

\75\ 86 FR 16168.
\76\ ACUS Initial NOI Comments at 1-3.
\77\ AIPLA Initial NOI Comments at 6.
\78\ LCA Reply NOI Comments at 4.
\79\ AIPLA Initial NOI Comments at 8.
\80\ Id.; Copyright Alliance, et al. Initial NOI Comments at 22.
\81\ AIPLA Initial NOI Comments at 1; Copyright Alliance, et al.
Initial NOI Comments at 21-22; Vient Initial NOI Comments at 4.
---------------------------------------------------------------------------

The Office agrees with commenters that CCB proceedings should be
more flexible and permissive than federal court proceedings. Similarly,
and especially given the lack of need to worry about confusing a jury,
and the desire not to force unsophisticated parties to learn the rules
of evidence, the Board will be more flexible in accepting evidence than
a strict adherence to the FRE would require.\82\ Accordingly, the
proposed rule makes clear that the CCB is not bound by the FRCP or the
FRE and that citations by parties to the FRCP and FRE will only be
considered to the extent they are persuasive.
---------------------------------------------------------------------------

\82\ The CASE Act provides that the Board CCB may consider
various forms of evidence and that ``such evidence may be admitted
without application of formal rules of evidence.'' 17 U.S.C.
1506(o).
---------------------------------------------------------------------------

2. Scheduling Order
The statute provides that the CCB will issue a scheduling order,
which may be amended in the interests of justice, specifying the
deadlines in a proceeding upon confirmation that it has become an
active proceeding.\83\ The CCB may also hold conferences to address
case management or discovery issues.\84\
---------------------------------------------------------------------------

\83\ Id. at 1506(k).
\84\ Id. at 1506(l).
---------------------------------------------------------------------------

Under the proposed rule, the required scheduling order will include
deadlines for the filing of the respondent's response to the claim
(including any counterclaims); the date and time of a pre-discovery
conference; deadlines for service upon other parties of responses to
the CCB's standard interrogatories and standard production of document
requests; other discovery deadlines; the deadline for requests for
leave to seek additional discovery; the date of the close of discovery;
the date and time of a post-discovery conference; and the deadline for
the filing of written testimony. The proposed rule does not set forth
specific timeframes for each of these deadlines so that the CCB has
flexibility to assess the pace of proceedings and the need for docket
management.
The proposed rule also provides that the CCB may hold additional
conferences beyond the pre-discovery conference and the post-discovery
conference on its own initiative or at the request of any party. All
such conferences will be held virtually. The proposed rule also permits
the CCB to amend the initial scheduling order as needed. The Office
invites comments as to whether any other deadlines should be included
in the initial scheduling order.
The proposed rule contemplates that one or more Officers will hold
all conferences. The Office observes, however, that proceedings could
be streamlined and made more efficient if Copyright Claims Attorneys
are permitted to hold conferences that do not involve the resolution of
a dispute and instead relate to logistical, scheduling, or other non-
substantive matters. Accordingly, the Office solicits comments as to
whether it has the authority to permit such conferences to be held by
Copyright Claims Attorneys rather than Officers.
3. Amending Pleadings
While the statute does not speak to amended pleadings, the Office
proposes a rule that would generally prohibit a claimant from making
substantive changes without another review by the Copyright Claims
Attorneys, or after the time for a respondent to opt out has
expired.\85\ Under the proposed rule, a claimant may freely amend its
claim once as a matter of course before the claim is served by filing
the proposed amendment for a compliance review.\86\ If the compliance
review by the Copyright Claims Attorney already has been completed at
the time of the proposed amendment, it must be submitted for a new
review by a Copyright Claims Attorney to ensure that the claim as
modified is compliant.
---------------------------------------------------------------------------

\85\ See Fed. R. Civ. Pro. 15.
\86\ A detailed explanation of the compliance review can be
found in the Office's notice of proposed rulemaking on initiation of
CCB proceedings. See 86 FR 53898-99.
---------------------------------------------------------------------------

A claimant seeking to amend a claim during the opt-out period may
do so only with the CCB's leave. To seek such leave, the claimant must
submit a short letter to the CCB that sets forth the reasons for the
amendment. The CCB will freely grant leave to amend a claim if justice
so requires, after considering whether the basis for the amendment
should have been reasonably known to the claimant before the claim was
served, along with any other relevant considerations. If the CCB grants
leave for the amendment, it must still be submitted for a compliance
review by a

[[Page 69897]]

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 CCB's 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 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.
---------------------------------------------------------------------------

\87\ Science Fiction and Fantasy Writers of Am. Initial NOI
Comments at 6.
---------------------------------------------------------------------------

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 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 CCB's 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\
---------------------------------------------------------------------------

\88\ 17 U.S.C. 1503(a)(1)(F).
\89\ Id. at 1506(r).
\90\ 17 U.S.C. 1502(b)(3)(iii); H.R. Rep. No. 116-252, at 24.
---------------------------------------------------------------------------

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 pre-discovery 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 CCB's 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

[[Page 69898]]

issue an order staying the proceedings for a period of up to thirty
days at the time the conference is scheduled, during or following the
conference, or at the request of the parties. Such a stay may be
extended at the request of the parties, provided that they are
participating in ongoing settlement discussions. If settlement
discussions have not been successful at the time the stay (or an
extension thereof) expires, the CCB will issue an amended scheduling
order.
If settlement discussions are successful and some or all of the
parties have reached a resolution, the parties may notify the CCB that
they wish to dismiss some or all of the claims or counterclaims and may
also include in their request for a dismissal that the CCB adopt some
or all of the settlement terms in the final determination. The CCB will
dismiss any claims or counterclaims covered by the settlement agreement
with prejudice (unless the parties have agreed otherwise) and will
adopt any requested settlement terms into the final determination,
unless the CCB determines that they are clearly unconscionable.
The Office invites any comments concerning whether there are any
other regulations that should be adopted to facilitate settlement
between the parties. In particular, the Office seeks input on whether
the CCB should be able to order a settlement conference where it sees
possible benefit to holding a conference even where one or more parties
object. The Office also seeks comment regarding the participation of
Officers in settlement conferences. Under the statute, a determination
must be reached by ``the majority of the Copyright Claims Board,'' \91\
which suggests that an Officer who participates in a settlement
conference must also participate in the determination. The Office notes
that in the federal litigation system, there are varying approaches
within the district courts \92\ regarding who should preside over
settlement conferences. Some allow district judges to preside over such
conferences,\93\ while others prefer the use of magistrate judges,\94\
outside neutrals,\95\ or some combination thereof.\96\ The Office
recognizes the possibility that a separation between the Officer who
presides over a settlement conference and the Officers who serve as the
ultimate decision-makers could further encourage participation in
voluntary settlement negotiations, and seeks comments assessing the
likelihood that parties will engage in settlement when the Officer who
presides over the settlement conference will also be involved in the
final determination. The Office is also interested in comment regarding
any statutory authority for the recusal of the settlement conference
Officer from a proceeding, only to terminate the recusal if the two
remaining Officers fail to agree on a determination, and whether
parties could stipulate to such a recusal and to abide by a decision
issued by only the Officers not involved in settlement discussions.
---------------------------------------------------------------------------

\91\ 17 U.S.C. 1506(t).
\92\ Department of Justice, ``ADR in the Federal District
Courts'' (Mar. 2016), <a href="https://www.justice.gov/archives/olp/file/827536/download">https://www.justice.gov/archives/olp/file/827536/download</a>.
\93\ See, e.g., D. Nev. L. Civ. R. 16.5; E.D. Mich. L. Civ. R.
16.3.
\94\ See, e.g., D. Ariz. L. Civ. R. 83.10; D. Colo. L. Civ. R.
16.6.
\95\ See, e.g., U.S. District Court for the Southern District of
New York, ``Mediation Program Procedures,'' at 10 (July 2020); N.D.
Ca. L. ADR R. 2-5.
\96\ See, e.g., E.D. Va. L. Civ. R. 83.6.
---------------------------------------------------------------------------

6. Smaller Claims
The statute directs the Office to establish regulations concerning
claims in which the total damages sought by the claimant do not exceed
$5,000, exclusive of attorneys' fees and costs. These smaller claims
are to be considered and determined by not fewer than one Officer. Such
determinations will have the same effect as a determination issued by
the full CCB.\97\ The legislative history states that such proceedings
should ``have the same procedural protections of any other claim before
the Copyright Claims Board,'' other than that they may be heard by a
single Officer.\98\
---------------------------------------------------------------------------

\97\ 17 U.S.C. 1506(z).
\98\ H.R. Rep. No. 116-252, at 17.
---------------------------------------------------------------------------

The Office solicited comments concerning procedures for such
``smaller claims,'' including regulations that would increase the
efficiency of such proceedings while retaining the CCB's standard
procedural protections.\99\ Several commenters suggested that there be
a strong presumption against discovery in smaller claims
proceedings.\100\ Other suggestions included that only Officers with
substantial experience with copyright infringement claims be permitted
to preside over smaller claims proceedings; \101\ that respondents
should receive the same protections available to defendants in federal
litigation; \102\ and that claimants should be required to indicate as
part of the initial claim whether they are seeking $5,000 or less in
damages.\103\ The legislative history suggested that the Office could
consider delaying rulemaking concerning smaller claims proceedings
until it has an opportunity to evaluate its ordinary procedures and
caseload in practice.\104\ The Office has considered this suggestion
and has decided to institute smaller claims procedures at the outset in
order to provide an option of an increasingly streamlined process for
claims of $5,000 or less. The Office believes that providing such a
process will provide benefits in terms of efficiency and simplicity to
parties and may enable the CCB to handle more claims than it otherwise
could.
---------------------------------------------------------------------------

\99\ 86 FR 16162-63.
\100\ Copyright Alliance, et al. Reply NOI Comments at 17; AIPLA
Initial NOI Comments at 7; Copyright Alliance, et al. Initial NOI
Comments at 29; MPA, RIAA & SIAA Initial NOI Comments at 17.
\101\ Copyright Alliance, et al. Initial NOI Comments at 29.
\102\ Google Initial NOI Comments at 2.
\103\ MPA, RIAA & SIAA Initial NOI Comments at 16-17.
\104\ S. Rep. No. 116-105, at 8.
---------------------------------------------------------------------------

Under the proposed rule, a claimant may either request
consideration under the smaller claims procedures at the time of filing
or amend its request any time prior to service of the claim. When the
claimant seeks to amend its choice after the compliance review but
before service, the CCB must issue a new initial notice reflecting the
change, so that the notice served on the respondent states that the
proceeding will be conducted under the rules for smaller claims.
However, once the claimant chooses the smaller claims procedures and
completes service, that decision may not be reversed without the
consent of the other parties and leave of the CCB.
Smaller claims proceedings will be heard by one Officer, who will
be assigned on a rotating basis at the CCB's discretion. Discovery in
smaller claims proceedings will be limited to the standard
interrogatories, requests for admission, and the standard production of
document requests provided by the CCB, as discussed further below. The
presiding Officer shall not consider any requests for additional
discovery, and expert testimony will be prohibited in smaller claims
proceedings, since any benefits of additional discovery or expert
testimony are unlikely to outweigh the costs and delays that they may
cause. The assigned Officer will issue a determination based solely on
the written testimony and without holding a hearing prior to issuing a
determination.
The Office welcomes comments concerning the proposed rule for
smaller claims and whether it strikes a proper balance between
streamlining

[[Page 69899]]

the process while providing the procedural protections available to
other claims before the CCB.
7. Records and Publication
Under the statute, each final determination of the CCB will be made
available on a publicly accessible website.\105\ The Office is also
directed to establish regulations related to the publication of other
records and information concerning CCB determinations.\106\ The Office
previously indicated that it had requested the provision of an
electronic filing and case management system from the Library of
Congress' Office of the Chief Information Officer, which would provide
capabilities comparable to existing case management systems operated by
other courts and tribunals.\107\ The Office sought comments concerning
public access to CCB records and proceedings, as well as certification
of records and determinations.\108\ Several commenters agreed that
access to determinations and other filings should be publicly
available, but information provided during the course of discovery
should not be made available.\109\ Other commenters argued that there
should be a presumption of public access to CCB filings,\110\ and that
access should be free.\111\ A few commenters requested that the CCB
make available statistics related to CCB proceedings.\112\
---------------------------------------------------------------------------

\105\ 17 U.S.C. 1506(t)(3).
\106\ Id.
\107\ 86 FR 16163.
\108\ Id.
\109\ ABA-IPL Reply NOI Comments at 7; Copyright Alliance, et
al. Initial NOI Comments at 38; MPA, RIAA & SIIA Initial NOI
Comments at 19.
\110\ EFF Initial NOI Comments at 4; Univ. of Mich. Initial NOI
Comments at 5.
\111\ Internet Archive Initial NOI Comments at 3.
\112\ Engine Initial NOI Comments at 9; Univ. of Mich. Initial
NOI Comments at 5.
---------------------------------------------------------------------------

The Office recognizes that the CCB shares characteristics of both
court and ADR proceedings.\113\ Just as some litigants prefer
arbitration in part because the records in such proceedings are not
made available to the public, some claimants and respondents may prefer
that access to their filings in CCB proceedings be limited. Such a
feature might, in fact, play a role in some parties' determinations
whether to file a claim with the CCB or whether to opt out of a CCB
proceeding. Moreover, CCB determinations are not precedential, and
therefore the public interest in such proceedings is arguably less
compelling than it is in judicial proceedings.\114\ The proposed rule
seeks to balance public access with the confidentiality interests of
the parties. It provides that the official written record of a CCB
proceeding will consist of the parties' submissions and documents
issued by the CCB. Members of the public may inspect the available
official written record through the electronic filing system, with the
exception of any materials that have been designated as confidential by
the parties. The Office welcomes comment on whether there should be
additional safeguards for parties to mutually agree to withdraw certain
types of records from public view.
---------------------------------------------------------------------------

\113\ See 17 U.S.C. 1502(b)(9) (providing that the CCB is housed
in the Copyright Office); id. at 1509(b) (providing that a CCB
proceeding qualifies as an alternative dispute resolution process
for purposes of referral by district courts).
\114\ See, e.g., 5 U.S.C. 574 (requiring communications provided
to a neutral during federal alternative dispute resolution be held
confidential unless one of four statutory exceptions apply).
---------------------------------------------------------------------------

The proposed rule also addresses other issues related to public
access to CCB proceedings and documents. The CCB may, in its
discretion, make a transcript of a hearing using available technology
or a court reporter. The Office anticipates that, in general, the CCB
will use standard speech to text transcript technology that is
available with the CCB's videoconferencing system. At the request of a
party, the CCB may designate an official reporter to record and/or
transcribe a hearing. The requesting party or parties will be
responsible for paying the reporter for the cost of the official
transcript directly. The Office welcomes comment regarding whether such
informal raw transcripts, which may contain various errors, should be
added to the official record. Attendance at CCB hearings will be
limited to the parties and their representatives, except with leave of
the CCB. Requests for leave to attend a CCB hearing must be made in
writing. To certify a CCB record, the Office proposes to utilize
preexisting services through its Records Research and Certification
Section.

C. Discovery

The statute allows limited discovery in CCB proceedings. Discovery
may include ``the production of relevant information and documents,
written interrogatories, and written requests for admission,'' as
established by Office regulations.\115\ The CCB has the discretion to
approve, upon a showing of good cause, requests for additional relevant
discovery on a limited basis.\116\ The CCB also may request specific
information and documents from parties, consistent with the interests
of justice.\117\ In addition, the CCB may issue a protective order to
protect confidential materials at the request of a party and for good
cause.\118\ The CCB is empowered to apply an adverse inference
concerning disputed facts against a party who fails to timely provide
relevant discovery materials in response to a proper request, after
providing that party with notice and an opportunity to respond.\119\
---------------------------------------------------------------------------

\115\ 17 U.S.C. 1506(n).
\116\ Id.
\117\ Id. at 1506(n)(1).
\118\ Id. at 1506(n)(2).
\119\ Id. at 1506(n)(3).
---------------------------------------------------------------------------

Congress provided for limited discovery in CCB proceedings to
``ensure that the proceedings are streamlined and efficient.'' \120\ As
explained in the Office's Copyright Small Claims report, discovery in
federal courts is the ``primary reason for the length of federal court
litigation'' and is associated with ``often substantial costs and
potential for abuse by exploitative litigants.'' \121\ Consistent with
this goal, the Office proposes a period of limited discovery involving
the use of standard CCB-issued interrogatories and standard CCB-issued
document requests, and allowing parties to serve limited requests for
admission. Requests for additional discovery may be granted for good
cause shown. While the CCB may consider requests for expert witnesses,
such requests will be disfavored.
---------------------------------------------------------------------------

\120\ 86 FR 16162.
\121\ Copyright Small Claims at 13.

---------------------------------------------------------------------------

[[Page 69900]]

1. Protective Orders
The Office solicited comments related to the issuance of protective
orders and the CCB's handling of confidential information, including
whether the CCB should adopt a standard model protective order.\122\
Commenters overwhelmingly endorsed the idea of a standard protective
order established at the initiation of discovery, similar to the
procedures used by the Trademark Trial and Appeal Board
(``TTAB'').\123\ Some commenters argued that an ``Attorneys' Eyes
Only'' level of confidentiality would be inappropriate, as many parties
likely will be proceeding pro se.\124\ Others, however, believed that
such a designation for commercially sensitive information would be
advisable.\125\
---------------------------------------------------------------------------

\122\ 86 FR 16162.
\123\ ABA-IPL Reply NOI Comments at 6; Spotify Reply NOI
Comments at 3; AIPLA Initial NOI Comments at 7; Amazon Initial NOI
Comments at 7-8; Copyright Alliance, et al. Initial NOI Comments at
27; MPA, RIAA, SIIA Initial NOI Comments at 14-15.
\124\ Copyright Alliance, et al. Reply NOI Comments at 16; MPA,
RIAA & SIIA Initial NOI Comments at 14-15.
\125\ Spotify Reply NOI Comments at 3; Amazon Reply NOI Comments
at 6.
---------------------------------------------------------------------------

The Office agrees with the suggestion of providing a standard
protective order to be issued at the request of any party. Under the
proposed rule, once requested by any party, this order will govern all
discovery material exchanged over the course of the proceeding, and
will provide that discovery material received from another party may
only be used in connection with the proceeding and must be returned or
disposed of at the conclusion of the proceeding. The parties may
negotiate customized protective orders that include additional
protections for highly sensitive materials. Customized protective
orders must be approved by the CCB, and a request for deviation from
the standard protective order must explain the need for such deviation.
The standard protective order will provide a single tier of
confidentiality. To promote public access and minimize the number of
sealed filings, the proposed rule prohibits the bulk marking of
documents as ``confidential'' and mandates that confidentiality
designations be made on a document-by-document basis.
Confidential discovery materials, or any discussions thereof, may
be submitted to the CCB in redacted form or filed under seal. If a
document is filed under seal as part of written testimony, a redacted
version of the document must be included in the public record. The
proposed rule also requires the redaction of certain personally
identifiable information from public filings, regardless of whether the
discovery material has been marked confidential.
2. Interrogatories
Commenters favored a limit on the number of interrogatories
permitted.\126\ One comment suggested that the CCB promulgate a
standard set of interrogatories tailored to particular categories of
claims, with the option to add a limited number of additional questions
of each party's choosing.\127\ Another comment suggested that parties
be permitted to propound additional interrogatories beyond an initial
limited number upon a showing of good cause.\128\
---------------------------------------------------------------------------

\126\ Copyright Alliance, et al. Initial NOI Comments at 23;
Amazon Initial NOI Comments at 6-7; MPA, RIAA & SIAA Initial NOI
Comments at 12.
\127\ Copyright Alliance, et al. Initial NOI Comments at 23.
\128\ MPA, RIAA & SIAA Initial NOI Comments at 12.
---------------------------------------------------------------------------

The Office has reviewed these suggestions and proposes that, absent
leave, interrogatories in CCB proceedings be limited to a standard set
that is provided by the CCB through the its website. These standard
interrogatories will, in all cases, solicit information related to
witnesses, individuals with knowledge of the claims and defenses,
relevant agreements between the parties, damages, and a description of
relevant documents. The CCB will also promulgate standard
interrogatories specifically tailored to the type of claims at issue.
For example, a party asserting an infringement claim or responding to a
non-infringement claim will respond to standard interrogatories that
solicit information pertaining to the allegedly infringed work's
copyright registration, ownership, publication history, and creation,
along with the basis of the party's belief that the opposing party's
activities constitute infringement, the discovery of the alleged
infringement, and any attempts to cause the infringement to be ceased
or mitigated. A party responding to an infringement claim or asserting
a non-infringement claim will respond to standard interrogatories that
solicit information pertaining to the ownership, publication history,
and creation of the allegedly infringing work, along with information
pertaining to the party's defenses, any continued use of the allegedly
infringing work, and any revenues or profits directly attributable to
the allegedly infringing work.
A party asserting a misrepresentation claim under 17 U.S.C. 512(f)
will respond to standard interrogatories that solicit information
pertaining to the notification or counter notification, the identity of
and any relevant communications with the internet service provider in
question or with others, the basis for the party's belief that the
notification or counter notification contained a misrepresentation, and
any harm caused by the alleged misrepresentation. A party responding to
a 512(f) misrepresentation claim will respond to standard
interrogatories that solicit information pertaining to the basis for
its defenses and any relevant communications with the internet service
provider in question or with others.
Under the proposed rule, parties have an obligation to update their
interrogatory responses, and serve these updated responses on the other
parties, as soon as possible following the discovery of relevant new or
updated information.
The Office welcomes any comments concerning the standard
interrogatories set forth in the proposed rule and is specifically
interested in any comments concerning any other categories of
information the standard interrogatories should cover.
3. Requests for Admission
Commenters favored similar limits on the number of requests for
admission that may be served in CCB proceedings.\129\ Under the
proposed rule, parties may serve requests for admission on each other
party concerning the facts, the application of law to facts, opinions
about either, or the genuineness of documents. The Office proposes that
the content of requests for admission be left to the discretion of
parties rather than making use of standard forms. Requests for
admission must be separately stated in numbered paragraphs, and
responses are due thirty days after service. Matters admitted will be
treated as conclusively established, unless the CCB permits an
admission to be withdrawn or amended on request and for good cause
shown. If a matter is not admitted, a party must specifically deny it
or state in detail why the party cannot admit or deny it. Any denial
must fairly respond to the substance of the request, and an answer may
specify that part of the request is admitted and then state what is
denied. A party may assert lack of knowledge or information in response
to a request, but

[[Page 69901]]

only with a representation that the party made a reasonable inquiry in
attempting to answer the request, but that the information it knows or
can readily obtain is insufficient to enable it to admit or deny the
information in the request.
---------------------------------------------------------------------------

\129\ Id.; Amazon Initial NOI Comments at 6-7; CCIA & IA Initial
NOI Comments at 4-5.
---------------------------------------------------------------------------

While this rule is modeled after the FRCP,\130\ the Office proposes
a few important modifications. First, the number of requests for
admissions without leave of the CCB is limited to ten, and the rule
makes explicit that compound requests are barred. In addition, in
contrast to the FRCP, if a party fails to timely respond to a request
for admission, the matter asserted is not automatically admitted.
However, the CCB in its discretion may deem it admitted pursuant to its
power to apply adverse inferences with respect to discovery violations
under 17 U.S.C. 1506(n)(3).
---------------------------------------------------------------------------

\130\ Fed. R. Civ. Pro. 36.
---------------------------------------------------------------------------

The Office welcomes public input into this proposed provision,
specifically whether there should be any further limitations on the
subject matter of the requests for admission and whether the proposed
rule strikes the proper balance in adapting the FRCP for pro se
parties.
4. Production of Documents
Several commenters suggested that the regulations pertaining to the
production of documents be drafted so to avoid the production of large
amounts of electronically stored information (``ESI''),\131\ as this is
a common feature of federal court litigation that significantly
increases the costs and burdens on the parties during discovery. These
commenters suggested that the regulations make clear that ESI
productions must be limited to what is available through searches that
a layperson can reasonably handle and should not require the retention
of a discovery vendor.\132\ One comment also suggested that the
regulations prohibit ``document dumps'' of large amounts of irrelevant
or duplicative materials.\133\
---------------------------------------------------------------------------

\131\ Copyright Alliance, et al. Initial NOI Comments at 25-26;
MPA, RIAA & SIIA Initial NOI Comments at 13-14.
\132\ Copyright Alliance, et al. Initial NOI Comments at 25-26;
MPA, RIAA & SIIA Initial NOI Comments at 13-14.
\133\ Copyright Alliance, et al. Initial NOI Comments at 26.
---------------------------------------------------------------------------

The Office agrees with these suggestions. Under the proposed rule,
the CCB will provide standard document production requests that will be
available on its website. As with the standard interrogatories, these
document requests will always involve certain common categories--such
as documents the party is likely to use in support of its claims or
defenses, documents the party is aware of which conflict with its
claims or defenses, and documents related to damages--as well as
document requests specific to the type of claim at issue. A party
asserting infringement or responding to a non-infringement claim will
be required to produce a copy of the allegedly infringed work and
allegedly infringing material (if applicable and available to the
claimant), agreements related to the works at issue, ownership of the
allegedly infringed work, pertinent documents where the allegedly
infringed work is a derivative work, documents related to the allegedly
infringing work, and documents relating to attempts to cause the
alleged infringement to be ceased or mitigated. A party responding to
an infringement claim or asserting a non-infringement claim will be
required to produce a copy of the allegedly infringing material,
agreements related to the works at issue, documents related to the
creation of the allegedly infringing material, documents pertaining to
the allegedly infringed material, and documents relating to any
revenues and profits directly attributable to the allegedly infringing
material. With respect to section 512(f) misrepresentation claims,
parties will be required to produce a copy of the notification or
counter notification at issue, communications with the relevant
internet service provider or others related to the notification or
counter notification, and documents pertaining to the truth or falsity
of any representations made in the notification or counter
notification.
In responding to document requests, each party must conduct a
reasonable search for responsive documents within its possession or
under its control, including in the files of its agents, employees,
representatives, or others acting on its behalf. Responsive documents
may include ESI. In line with commenters' suggestions, however, a
reasonable search of ESI shall not exceed manual searches that are
easily accomplished by a layperson and need not include searches that
require the assistance of third parties, such as a document vendor.
Responses to document requests that include large amounts of irrelevant
or duplicative material will constitute bad-faith conduct. Under the
proposed rule, a party has an obligation to disclose the existence of
any responsive materials that are no longer in its possession and
explain why they are no longer in its possession. A party also has an
obligation to supplement its production as soon as practicable if it
later finds responsive documents.
The Office solicits comments as to this proposed rule. The Office
is specifically interested in any comments related to whether the
proposed rule will sufficiently limit the scope and size of document
productions in CCB proceedings. The Office welcomes any suggestions
pertaining to mechanisms for further limiting the scope of productions,
as well as any other categories of relevant documents that should be
included in the standard document production requests.
5. Disputes and Sanctions
The proposed rule requires parties to attempt to resolve discovery
disputes in good faith without involving the CCB, a principle found in
the FRCP.\134\ Parties must meet and confer, at least through a phone
call, to attempt to reach a resolution prior to raising a discovery
dispute with the CCB. If such an attempt fails, a party seeking
discovery may file a short letter describing the dispute and seeking a
conference with the CCB, and an opposing party will have an opportunity
to file a response prior to the conference. The CCB may then hold a
conference and issue an order resolving the dispute either during or
following the conference and, if applicable, set a deadline for
compliance.
---------------------------------------------------------------------------

\134\ Fed. R. Civ. Pro. 37.
---------------------------------------------------------------------------

If the party fails to timely comply, the party seeking discovery
may send a notice to the allegedly noncompliant party that provides an
additional ten days to comply. If the allegedly noncompliant party
still fails to comply, the party seeking discovery may request that the
CCB impose sanctions. This request may be no longer than ten pages,
plus supporting documents, and the opposing party will have an
opportunity to file a response. The CCB may hold a conference to
address the request for sanctions and will impose sanctions in its sole
discretion and upon good cause shown where the opposing party is found
to be noncompliant with the CCB's discovery order. The sanctions
imposed by the CCB may include an adverse inference against the
noncompliant party regarding the facts directly related to the disputed
discovery. The proposed rule provides that the CCB may also consider
imposing sanctions when awarding attorneys' fees and costs during a
final determination.
The Office is interested in comments concerning whether this
proposed rule strikes the proper balance between the interests and
rights of the respective

[[Page 69902]]

parties. The Office is also interested in comments concerning whether
it has the authority to issue any monetary sanctions specifically
related to a discovery dispute.

D. Evidence

The statute sets out specific categories of evidence that the CCB
may consider in making a determination: Documentary and other
nontestimonial evidence, sworn written testimony, and oral testimony
taken at a hearing.\135\ In exceptional cases, expert witness testimony
or other types of testimony may be permitted for good cause shown.\136\
Testimony may be admitted without application of formal rules of
evidence.\137\ The Office solicited comment regarding applicable
standards for evidence and received comments suggesting that the CCB
look to outside sources for establishing evidence standards, such as
immigration courts \138\ and the Copyright Royalty Board
(``CRB'').\139\
---------------------------------------------------------------------------

\135\ 17 U.S.C. 1506(o).
\136\ Id.
\137\ Id. at 1506(o)(2).
\138\ AIPLA Initial NOI Comments at 8.
\139\ Copyright Alliance, et al. Initial NOI Comments at 22.
---------------------------------------------------------------------------

The proposed rule for evidentiary standards is modeled after the
CRB's rule,\140\ as applicable. The Office proposes adopting the
general standard of accepting all evidence that is relevant and not
unduly repetitious or privileged, as well as the CRB's standards for
testimony and objections at hearings. In addition, the proposed rule
clarifies the role of FRE 401 and 403, and reserves the CCB's right to
discount or exclude evidence with serious credibility issues. It also
establishes that only documentary evidence submitted during the written
testimony phase may be introduced at a hearing, except evidence
required during cross-examination or redirect examination. The Office
has not incorporated the CRB's provision requiring that physical copies
of evidentiary materials be provided to all parties, due to the online
nature of CCB proceedings.\141\ Similarly, due to the nature of CCB
proceedings, the Office also does not incorporate the CRB's standards
regarding the introduction of studies and analyses.
---------------------------------------------------------------------------

\140\ 37 CFR 351.10.
\141\ Id. at Sec. 351.10(d).
---------------------------------------------------------------------------

The proposed rule further provides that testifying witnesses at
hearings must take an oath or affirmation prior to their testimony.
Parties may conduct direct examination, cross-examination, and redirect
examination, but the CCB may limit the number of witnesses who testify
or the scope of the questioning. Parties will be entitled to raise
objections to evidence during the hearing, and the Board will consider
those objections if based on valid reasoning, even if not based on the
technical rules of evidence.

E. Written Testimony

The CCB is barred from instituting formal motion practice except
that it ``may request or permit parties to make submissions addressing
relevant questions of fact or law, or other matters, including matters
raised sua sponte by the Officers, and offer responses thereto.'' \142\
The CCB is further allowed to hear various ``requests'' from the
parties.\143\ As part of its broad flexibility to regulate CCB
proceedings,\144\ the Office proposes a process of written testimony at
the close of discovery that establishes the legal and factual basis for
the dispute. The Office intends that this process may establish the
entire record for the CCB's consideration and that hearings will be
held at the CCB's discretion and as set forth below.
---------------------------------------------------------------------------

\142\ 17 U.S.C. 1506(m)(2).
\143\ Id. at 1506(m)(1).
\144\ Id. at 1506(a)(1), 1510(a)(1).
---------------------------------------------------------------------------

A claimant or counterclaimant begins the process by submitting
written direct testimony in support of its claim or counterclaim. Any
party subsequently responding to that claim shall file written response
testimony thirty days following service of the direct testimony.
Finally, the original claimant or counterclaimant may, but is not
required to, file written reply testimony fourteen days following
service.
Direct and responsive testimony comprises documentary evidence,
witness statements, and party statements. Documentary evidence consists
of non-testimonial evidence sponsored by a witness with knowledge of
its contents and authenticity, unless the document was produced by an
opposing party. Such evidence must have been served on the opposing
parties, and accompanied by a numbered document list that briefly
describes each document included. Witness statements consist of sworn
written testimony, from non-expert witnesses unless leave for experts
has been granted, testifying to factual information based on the
witness's personal knowledge, and sponsoring certain documents in the
document list. A party statement is a brief statement of no more than
twelve double-spaced pages that sets forth a party's position as to key
facts, the law, and damages. For a claimant, such damages information
includes whether it is seeking statutory or actual damages and any
profits of an alleged infringer. For a respondent, such information
includes whether it would voluntarily agree to an order stopping it
from engaging in activities found unlawful; \145\ such an agreement may
be taken into account by the CCB in determining damages. Both elections
may be changed prior to a final determination, and a respondent's
agreement to an injunction will not be considered in any way when
reviewing liability. Reply testimony may only include new documentary
evidence and witness statements to the extent that they are required to
contradict or rebut evidence presented by the opposing party in its
response.
---------------------------------------------------------------------------

\145\ Id. at 1504(e)(2).
---------------------------------------------------------------------------

F. Hearings

In the course of a proceeding, the CCB may conduct hearings.\146\
Hearings on the merits may be held as long as there are no fewer than
two Officers to ``receive oral presentations on issues of fact or law
from parties and witnesses to a proceeding.'' \147\ These hearings,
whenever possible, are to be carried out online or by phone, ``except
that, in cases in which physical or other nontestimonial evidence
material to a proceeding cannot be furnished to the Copyright Claims
Board through available telecommunications facilities, the [Board] may
make alternative arrangements . . . that do not prejudice any other
party to the proceeding.'' \148\ The hearing must be noted in the
record and transcribed.
---------------------------------------------------------------------------

\146\ Id. at 1503(a)(1)(E).
\147\ Id. at 1506(p).
\148\ Id. at 1506(c)(2).
---------------------------------------------------------------------------

The Office proposes that a hearing not be required at the close of
written testimony, but may be held at the CCB's discretion, and may be
convened on the CCB's own initiative or upon a request from any party
for a hearing. A party need not give detailed reasons for its request
for a hearing, but the request must be included in a party statement
submitted during the written testimony phase. Once the hearing has been
conducted, no additional testimony or evidence may be submitted, except
as set forth in post-determination proceedings.
The Office understands that while alternative arrangements may be
made for the submission of material physical or nontestimonial evidence
that cannot be furnished virtually, the statute appears to require
virtual hearings.\149\ However, the Office is interested in providing a
mechanism for in-person

[[Page 69903]]

hearings in the circumstance where such a hearing is requested by all
parties and all parties can attend. The Office welcomes comments
regarding this provision and whether the statute can be read to allow
in-person hearings when requested by all parties and where all parties
can attend.
---------------------------------------------------------------------------

\149\ Id.
---------------------------------------------------------------------------

G. Post-Determination Proceedings

After a determination is rendered, the CCB may reconsider it for
clear error of law or fact upon request of a party.\150\ If
reconsideration is denied, the Register of Copyrights may review the
CCB's decision upon request of a party to determine whether there was
an abuse of discretion in denying reconsideration.\151\ The Office
requested comment on both post-determination proceedings, and proposes
regulations as further set forth below.
---------------------------------------------------------------------------

\150\ Id. at 1506(w).
\151\ Id. at 1506(w), (x).
---------------------------------------------------------------------------

1. Request for Reconsideration
The CCB's determinations are subject to reconsideration or
amendment by the CCB itself, if a party submits a written request
within thirty days of the final determination.\152\ After providing
other parties an opportunity to address the request for
reconsideration, the CCB shall either deny the request or issue an
amended final determination.\153\ The request should not merely repeat
previous arguments made before the CCB, and the CCB will not accept new
evidence unless a party demonstrates through clear and convincing
evidence that the evidence was not available in the exercise of
reasonable diligence prior to the submission of written testimony.
After the requesting party sets forth the purported error that it
believes was material to the outcome or a technical mistake, the non-
requesting party has the opportunity to respond or otherwise oppose the
points made. The Office proposes that responses to requests for
reconsideration be filed within twenty-one days after service of a
request for reconsideration, and that each party's brief may be no more
than twelve double-spaced pages. The Office has not included a
provision for a reply to the response by the requesting party before
the CCB renders a decision, as the statute contemplates only ``an
opportunity [for other parties] to address [the] request.'' \154\
---------------------------------------------------------------------------

\152\ Id. at 1506(w).
\153\ Id.
\154\ Id. at 1506(x).
---------------------------------------------------------------------------

2. Register's Review
Where the CCB denies a party's request for reconsideration of a
final determination in whole or in part, that party can request that
the Register review the determination. Such review ``shall be limited
to consideration of whether the Copyright Claims Board abused its
discretion in denying reconsideration of the determination.'' \155\ A
request must be accompanied by ``a reasonable filing fee,'' to be
established by regulation.\156\ After other parties have had an
opportunity to address the reconsideration request, the Register must
either ``deny the request for review, or remand the proceeding to the
Copyright Claims Board for reconsideration of issues specified in the
remand and for issuance of an amended final determination.'' \157\ The
Office sought public input on any issues relating to the Register's
review, including regulatory standards for the substance of a request,
a reasonable filing fee, and post-review procedures.\158\
---------------------------------------------------------------------------

\155\ Id.
\156\ Id.
\157\ Id.
\158\ 86 FR 16164.
---------------------------------------------------------------------------

Under the proposed rule, a party may request the Register's review
within 30 days of a denial of a request for reconsideration. The
request must identify what the requesting party believes to be the
CCB's abuse of discretion in denying the request for reconsideration
and must be accompanied by a filing fee. The Office proposes that
responses be filed within twenty-one days after service of a request
for Register's review, following procedures similar to those set forth
above with regard to a request for reconsideration filed with the CCB.
Only evidence that was previously submitted to the CCB as part of
written testimony, at a hearing, or in response to a specific request
for evidence from the CCB may be submitted as part of the Register's
review process.
The statute provides ``[i]f the Copyright Claims Board denies a
party a request for reconsideration of a final determination, . . .
that party may . . . request review.'' \159\ This provision is silent
as to the non-requesting party's ability to request the Register's
review if it loses the reconsideration request. That seems to suggest
that only a party who has unsuccessfully requested reconsideration by
the CCB may seek Register review, but not the non-requesting party,
even where the request was successful and the determination is amended.
Accordingly, the Office has not included a provision for the non-moving
party to request review of an amended final determination. The Office
invites comment on this issue, as well as the appropriateness of
allowing the party which did not seek reconsideration, but which now
finds itself on the losing end of the matter, to seek reconsideration
of an amended final determination (i.e., reconsideration of the
reconsideration) without relitigating issues the CCB has already
considered.
---------------------------------------------------------------------------

\159\ 17 U.S.C. 1506(x).
---------------------------------------------------------------------------

Finally, the Office proposes a $300 fee to request the Register's
review. In setting this fee, the Office finds that the fee applicable
to a second request for reconsideration of a denial of registration
provides a useful analogue. When the Registration Program refuses to
register a work, the applicant has two opportunities to request
reconsideration. The first request is considered within the
Registration Program. Second requests are considered by the Register or
her designee, the General Counsel, and a third senior member of the
Office.\160\ The fee for a second reconsideration is $700,\161\ though
the actual cost for providing the service is $4,471.\162\ The Office
anticipates that the Register's review of a CCB determination will
operate in a similar manner and will necessarily involve the time and
expertise of the Register and senior staff. Setting the fee at $300
reasonably reflects the narrower scope of review under this procedure
as compared to registration requests for reconsideration and, in
combination with the proposed filing fee for initiating a claim,\163\
complies with the statutory ceiling of $402.\164\
---------------------------------------------------------------------------

\160\ See generally U.S. Copyright Office, Compendium of U.S.
Copyright Practices, ch. 1700 (3d ed. 2021).
\161\ 37 CFR 201.3(d)(4)(ii).
\162\ Booz Allen Hamilton, 2017 Fee Study Report 2, 26 (2017),
<a href="https://www.copyright.gov/rulemaking/feestudy2018/fee_study_report.pdf">https://www.copyright.gov/rulemaking/feestudy2018/fee_study_report.pdf</a>.
\163\ See 86 FR 53905 (proposed 37 CFR 201.3(g)(1)).
\164\ 17 U.S.C. 1501(c) (setting the sum total of filing fees as
no less than $100 and no more than the cost of filing an action in a
district court of the United States). The statutory fee for filing
suit in a federal district court is $350, 28 U.S.C. 1914(a), and an
additional fee of $52 is charged as an administrative fee by the
Judicial Conference of the United States. Id.
---------------------------------------------------------------------------

List of Subjects

37 CFR Part 201

37 CFR Part 220

Claims, Copyright, General.

37 CFR Part 222

Claims, Copyright.

[[Page 69904]]

37 CFR Part 225

Claims, Copyright.

37 CFR Part 226

Claims, Copyright.

37 CFR Part 227

Claims, Copyright.

37 CFR Part 228

Claims, Copyright.

37 CFR Part 229

Claims, Copyright.

37 CFR Part 230

Claims, Copyright.

37 CFR Part 231

Claims, Copyright.

37 CFR Part 232

Claims, Copyright.

37 CFR Part 233

Claims, Copyright.

Proposed Regulations

For the reasons stated in the preamble, the U.S. Copyright Office
proposes to further amend chapter II, subchapters A and B, of title 37
Code of Federal Regulations, as proposed to be amended at 86 FR 53897
(September 29, 2021), as follows:

Subchapter A--Copyright Office and Procedures

PART 201--GENERAL PROVISIONS

0
1. The authority citation for part 201 continues to read as follows:

Authority: 17 U.S.C. 702.
Section 201.10 also issued under 17 U.S.C. 304.

0
2. In Sec. 201.3, revise the first column heading in table 4 to
paragraph (g) and add paragraph (g)(3) to read as follows:

Sec. 201.3 Fees for registration, recordation, and related services,
special services, and services performed by the Licensing Section and
the Copyright Claims Board.

* * * * *
(g) * * *

Table 4 to Paragraph (g)
------------------------------------------------------------------------
Copyright claims board fees Fees ($)
------------------------------------------------------------------------

* * * * * * *
(3) Filing fee for review of a final CCB determination 300
by the Register........................................
------------------------------------------------------------------------

Subchapter B--Copyright Claims Board and Procedures

0
3. Revise part 220 to read as follows:

PART 220--GENERAL PROVISIONS

Sec.
220.1 Definitions.
220.2 Authority and functions.
220.3 Handbook.
220.4 Timing.

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

Sec. 220.1 Definitions.

For purposes of this subchapter:
(a) A claim becomes an active proceeding when the claimant has
filed proof of service and the respondent has not, within the sixty day
opt-out period, submitted an opt-out notice to the Copyright Claims
Board.
(b) Bad-faith conduct occurs when a party pursues a claim,
counterclaim, or defense for a harassing or other improper purpose, or
without a reasonable basis in law or fact. Such conduct may occur at
any point during a proceeding, including before a proceeding becomes an
active proceeding.
(c) A default determination is a final determination issued as part
of the default procedures set forth in 17 U.S.C. 1506(u) when the
respondent does not participate in those procedures.
(d) A final determination is a decision that concludes an active
proceeding before the Board and is binding only on the participating
parties. A final determination generally assesses the merits of the
claims in the proceeding, except when issued to dismiss a claimant's
claims for failure to prosecute.
(e) Standard interrogatories are written questions provided by the
Board that a party in an active proceeding must answer as part of
discovery.
(f) An initial notice means the notice of a proceeding that
accompanies a claim or counterclaim in a Copyright Claims Board
proceeding as described in 17 U.S.C. 1506(g).
(g) A second notice means the notice of a proceeding sent by the
Copyright Claims Board as described in 17 U.S.C. 1506(h).
(h) Standard production of document requests are written requests
provided by the Board requiring a party to provide documents, other
information, or tangible evidence as part of discovery in an active
proceeding.

Sec. 220.2 Authority and functions.

The Copyright Claims Board (``Board'') is an alternative forum to
Federal court in which parties may voluntarily seek to resolve certain
copyright-related claims regarding any category of copyrighted work, as
provided in chapter 15 of title 17 of the United States Code. The
Board's proceedings are governed by title 17 of the United States Code
and the regulations in this subchapter.

Sec. 220.3 Handbook.

The Copyright Claims Board may issue a handbook explaining the
Board's practices and procedures. The handbook may be viewed,
downloaded, or printed from the Board's website. The handbook will not
override any existing statute or regulation.

Sec. 220.4 Timing.

When the start or end date for calculating any deadline set forth
in this subchapter falls on a weekend or a Federal holiday, the start
or end date shall be extended to the next Federal workday. Any document
subject to a deadline must be either submitted to the electronic filing
system by 11:59 p.m. Eastern Time on the date of the deadline or
dispatched by the date of the deadline.

PART 222--PROCEEDINGS

0
4. The authority citation for part 222 continues to read as follows:

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

0
5. Add Sec. 222.1 to read as follows:

Sec. 222.1 Applicability of the Federal Rules of Civil Procedure and
Federal Rules of Evidence.

The rules of procedure and evidence governing proceedings before
the Copyright Claims Board (``Board'') are set forth in this part.
Parties may cite to the Federal Rules of Civil Procedure or the Federal
Rules of Evidence (``FRE'') as persuasive authority. The Board may

[[Page 69905]]

consider arguments referencing the Federal Rules of Civil Procedure or
FRE, but is not bound by the Federal Rules of Civil Procedure or FRE,
and will only consider them to the extent that they are persuasive in
the context of this subchapter.
0
6. Add Sec. Sec. 222.10 through 222.19 to read as follows:
* * * * *
Sec.
222.10 Scheduling order.
222.11 Amending pleadings.
222.12 Consolidation or severance.
222.13 Additional parties.
222.14 Written testimony on the merits.
222.15 Hearings.
222.16 Withdrawal of claims; dismissal.
222.17 Settlement.
222.18 Protective orders.
222.19 Evidence.
* * * * *

Sec. 222.10 Scheduling order.

(a) Timing. Upon confirmation that a proceeding becomes an active
proceeding, the Board shall issue an initial scheduling order.
(b) Content of initial scheduling order. The scheduling order shall
include the dates or deadlines for:
(1) Filing of a response to the claim by the respondent;
(2) A pre-discovery conference with a Copyright Claims Officer
(``Officer'') to discuss case management, including discovery, and the
possibility of resolving the claims and any counterclaims through
settlement;
(3) Service of responses to standard interrogatories;
(4) Service of requests for admission;
(5) Service of documents in response to standard production of
document requests;
(6) Requests for leave to seek additional discovery;
(7) Close of discovery;
(8) A post-discovery conference with an Officer to discuss further
case management, including the need for any additional discovery, and
the possibility of resolving the claims and any counterclaims through
settlement; and
(9) Filing of each party's written testimony and responses,
pursuant to Sec. 222.14.
(c) Conferences. In addition to those identified in paragraph (b)
of this section, the Board may hold additional conferences to manage
the proceedings and resolve disputes, at its own election or at the
request of any party. Conferences may be held by one or more Officers
and shall be held virtually.
(d) Amended scheduling order. The Board may amend the initial
scheduling order--
(1) Upon the clearance of a counterclaim by a Copyright Claims
Attorney pursuant to 37 CFR 224.1(c)(1), to add a deadline for the
service of a response by a claimant to a counterclaim and to amend
other previously scheduled dates in the prior scheduling order;
(2) Upon request of one or more of the parties to an active
proceeding submitted through the Board's electronic filing system;
(3) As necessary to adjust the schedule for conferences or hearings
or the staying of any proceedings;
(4) As necessary to facilitate settlement pursuant to Sec. 222.17;
or
(5) Upon its own initiative in the interests of maintaining orderly
administration of the Board's docket.

Sec. 222.11 Amending pleadings.

(a) Amendments before service. A party may freely amend its
pleading once as a matter of course prior to service of its claim or
counterclaim. Any claim or counterclaim that is amended shall be
submitted for a compliance review by a Copyright Claims Attorney.
(b) Amendments during the opt-out period. A claimant seeking to
amend a claim during the opt-out period may do so only with leave of
the Board.
(1) Requests for leave to amend. To request the Board's leave, the
claimant must submit a letter to the Board, no longer than five pages
in length, setting forth the reasons why an amended claim is
appropriate. In determining whether to grant leave to amend a pleading,
the Board shall freely grant leave if justice so requires after
considering whether the basis for the amendment reasonably should have
been known to the claimant before the claim was served or during the
time period specified in paragraph (a) of this section, along with any
other relevant considerations.
(2) Compliance review of amended claims. If the Board grants leave
to amend a claim, any amendment shall be submitted by the claimant for
a compliance review by a Copyright Claims Attorney.
(3) Time for service of the amended claim. The claimant shall serve
the amended claim on the respondent within 14 days after a Copyright
Claims Attorney finds it to be compliant.
(4) Extension of the opt-out period. The respondent shall have 60
days from service of the amended claim to opt out of the proceeding
pursuant to 37 CFR 223.1.
(c) Non-infringement claims or defenses or misrepresentation
claims. A party asserting non-infringement or defending against a claim
of infringement or misrepresentation may amend its pleading after
service of its initial responses to standard interrogatories, where the
party disclosed additional defenses beyond those set forth in the
initial pleading. Such amendment shall be as a matter of right.
(d) All other amendments. In all other cases, a party may amend its
pleading only with the Board's leave. If the Board grants leave, any
amendment shall be submitted for a compliance review.
(1) Time to respond. Unless the Board orders otherwise, any
required response to an amended pleading must be made within the time
remaining to respond to the original pleading or within 21 days after
the Board's notification that the amended pleading is compliant,
whichever is later.
(2) Procedure for request for leave to amend. The party seeking
leave to amend must submit a short letter to the Board, no longer than
five pages in length, setting forth the reasons why an amended pleading
is appropriate. Any other party may file a response, no longer than
five pages in length, within 14 days of the date of service of the
request for leave to amend, stating its views concerning the request.
No reply letters shall be permitted unless the Board grants leave.
(3) Standard for granting leave to amend. In determining whether to
grant leave to amend a pleading, the Board shall freely grant leave if
justice so requires after considering whether any other party will be
prejudiced if the amendment is permitted (including the impact the
amendment might have on a respondent's right to opt out of the
proceeding), whether the proceedings will be unduly delayed if the
amendment is permitted, and whether the basis for the amendment
reasonably should have been known to the amending party before the
pleading was served or during the time period specified in paragraph
(a) of this section, along with any other relevant considerations.

Sec. 222.12 Consolidation or severance.

(a) Consolidation. If a claimant has multiple active proceedings
against the same respondent or that arise out of the same facts and
circumstances, the Board may consolidate the proceedings for purposes
of conducting discovery, submitting evidence to the Board, or holding
hearings. Consolidated proceedings shall remain separate for purposes
of Board determinations and any damages awards.
(b) Severance. If a single proceeding includes distinct claims
involving disparate facts and circumstances that would be difficult,
time-consuming, or otherwise inappropriate to resolve in a single
proceeding, the Board may sever

[[Page 69906]]

the proceedings with respect to some or all parties, claims, and
issues. Severed proceedings shall be treated as one proceeding for
purposes of statutory damages. The Board may in its discretion dismiss
one of the severed proceedings as unsuitable for resolution under these
regulations without dismissing other severed proceedings.
(c) Timing. The Board may consolidate or sever proceedings at any
time upon its own authority or following consideration of a request by
any party, with reasonable notice and opportunity to be heard provided
to all affected parties.
(d) Procedure. The party seeking consolidation or severance must
submit a short letter to the Board, no longer than five pages in
length, setting forth the reasons for the request, requesting a
conference with the Board and the parties from each affected case, and,
in the case of a request for consolidation, providing the Board with
the docket numbers for each affected proceeding. Parties opposing
consolidation or severance may file a response letter, no longer than
five pages in length, within 14 days of the date of service of the
request for consolidation or severance, objecting to the request. No
reply letters shall be permitted, unless the Board grants leave for a
reply.
(e) Standard for granting request. In determining whether to grant
a request to consolidate or sever, the Board shall consider whether
consolidation or severance is necessary and balance that need with the
timeliness of the request and whether any undue prejudice has resulted
from the delay in making the request.

Sec. 222.13 Additional parties.

(a) When applicable. A necessary party is a person or entity whose
absence would prevent the Board from according complete relief among
existing parties, or who claims an interest related to the subject of
the proceeding such that reaching a determination in the proceeding may
impair or impede that person's or entity's ability to protect that
interest as a practical matter, or in whose absence an existing party
would be subject to a substantial risk of incurring double, multiple,
or inconsistent obligations because of that interest.
(b) Failure to join a necessary party. At any time, any party who
believes in good faith that a necessary party has not been joined may
file a letter, no longer than three pages in length, notifying the
Board of the failure to join the necessary party and providing the
basis for such belief. An opposing party may file a response, no longer
than three pages in length, within 14 days of the date of service of
the letter, in opposition. If the Board determines that a necessary
party has not been joined, it shall dismiss the proceeding without
prejudice.
(c) Intervention of a necessary party. At any time, a necessary
third party seeking to intervene may file a letter, no longer than
three pages in length, setting forth the reasons for the request and
requesting a conference with the Board. Within 14 days of the date of
service request, each party to the proceeding shall file a letter, no
longer than three pages in length, indicating whether it agrees that
the intervening party is a necessary party, and the basis thereof, or
whether it opposes the intervention. After evaluating the parties'
letters, the Board may hold a conference between the parties to the
proceeding and the intervening party to address the request.
(d) Board determination. (1) If the Board determines that the
intervening party is not a necessary party, it shall deny the request
and resume the proceeding, unless all parties agree that the party
should be joined.
(2) If the Board determines that the intervening party is a
necessary party, it shall--
(i) Permit the intervening party to join the proceeding, if no
party indicated that it opposed the request to intervene; or
(ii) Dismiss the proceeding without prejudice, if any party
indicated that it opposed the request to intervene.

Sec. 222.14 Written testimony on the merits.

(a) Timing. At the times specified within the scheduling order, any
party asserting a claim or counterclaim shall file written direct
testimony in support of that claim or counterclaim. Any party
responding to a claim or counterclaim shall file written response
testimony within 30 days following the date of service of written
direct testimony. Any party who asserted a claim or counterclaim may
file written reply testimony within 14 days following the date of
service of written response testimony.
(b) Direct and response testimony. Written direct and response
testimony shall consist of documentary evidence, witness statements,
and a party statement.
(1) Documentary evidence. (i) Documentary evidence must be
accompanied by a statement that lists each attached document and
provides a brief description of each document and how it bears on a
claim or counterclaim;
(ii) Each document must be sponsored by a witness with knowledge of
its contents and authenticity, unless the document statement states
that the document was produced by an opposing party during discovery;
and
(iii) Direct or response documentary evidence shall only include
documents that were served on opposing parties pursuant to the
scheduling order, absent leave from the Board, which shall be granted
only for good cause.
(2) Witness statements. A witness statement must--
(i) Be sworn under penalty of perjury by the witness;
(ii) Be detailed as to the substance of the witness's knowledge and
must be organized into numbered paragraphs;
(iii) Contain only factual information based on the witness's
personal knowledge and may not contain legal argument; and
(iv) Reference any documents included in the document statement
that are sponsored by the witness, with a brief statement as to the
basis for the witness's knowledge of the document's authenticity.
(3) Party statement. A party statement--
(i) Shall set forth the party's position as to the key facts, laws,
and damages;
(ii) Need not have a table of contents or authorities;
(iii) Shall have a title page with the case's caption and the title
of the document (e.g., Party Statement of Respondent John Doe);
(iv) Shall be limited to 12 double-spaced pages, not including the
title page or any signatures or certificates of service, in 12-point
font or larger for both body text and footnotes, with at least one-inch
margins on the top, bottom, left, and right of each page;
(v) For a claimant or counterclaimant seeking damages, shall
include a statement as to whether the party is seeking statutory
damages or actual damages and any profits. This election may be changed
at any time up until final determination by the Board; and
(vi) For a respondent or counterclaim respondent, may include a
statement as to whether, if found liable on a claim or counterclaim,
the party would voluntarily agree to an order stopping it from engaging
in the activities found unlawful in the future as specified in 17
U.S.C. 1504(e)(2). Such an election may be considered in appropriate
cases by the Board in determining an amount of damages, if any,
pursuant to 17 U.S.C. 1504, and such election may be changed at any
time up until final determination by the Board. The statement shall
take the following form: ``[Claim/Counterclaim] respondent agrees that
if it is found liable, it agrees to an order that it will stop the
activity found to be unlawful.'' Such a statement will not be
considered by the Board in any way in

[[Page 69907]]

making its determination as to liability, and shall be considered only
as to damages.
(c) Reply testimony. Written reply testimony must be limited to
addressing or rebutting specific evidence set forth in written response
testimony. Written reply testimony may consist of documentary evidence,
witness statements, and a party statement as set forth in this
paragraph (c).
(1) Documentary evidence. In addition to the requirements of
paragraph (b)(1) of this section, documentary evidence presented by a
party as part of written reply testimony must be limited to documentary
evidence required to contradict or rebut specific evidence that was
presented in an opposing party's written response testimony and shall
not include any documentary evidence previously presented as part of
the submitting party's direct testimony.
(2) Witness statements. In addition to the requirements of
paragraph (b)(2) of this section, a reply witness statement must be
limited to facts not previously included in that witness's prior
statement, and must be limited to facts that contradict or rebut
specific evidence that was presented in an opposing party's written
response testimony. The reply witness's statement must refer to any
documents the reply witness is sponsoring in the same manner as set
forth in paragraph (b)(2) of this section.
(3) Party statement. A party statement in reply must be limited to
rebutting or addressing an opposing party's written response testimony
and may not include any discussion of the facts, the law, or damages
that was included in that party's direct party statement. A reply party
statement is subject to the same formatting rules set forth in
paragraph (b)(3) of this section except that it must be limited to 7
double-spaced pages, not including the title page or any signatures or
certificates of service, in 12-point font or larger for both body text
and footnotes, with at least one-inch margins on the top, bottom, left,
and right of each page.
(d) Certification. All written testimony submitted to the Board
must include a certification by the party submitting such testimony
that it is accurate and truthful.
(e) Request for hearing. Any party may include in a party statement
a request for a hearing on the merits before the Board, consistent with
Sec. 222.15.
(f) No additional filing. Following filing of any written reply
testimony, no further written testimony or evidence may be submitted to
the Board, unless at the specific request of the Board, or as
appropriate at a hearing on the merits ordered by the Board.

Sec. 222.15 Hearings.

(a) Timing. In any action, the Board may hold a hearing following
submission of each party's written direct, response, and reply
testimony if it determines that such a hearing is appropriate or
advisable. The Board may decide to hold a hearing on its own initiative
or after consideration of a request for a hearing from any party.
(b) Virtual hearings. All hearings shall be held virtually and may
be recorded as deemed necessary by the Board.
(c) Requesting a hearing. A request for a hearing on the merits of
a case must be included in a party statement, pursuant to Sec.
222.14(e). The Board, in its sole discretion, shall choose whether to
hold a hearing, and may elect to hold a hearing absent a request from a
party.
(d) Content of request. Any request in a party statement for a
hearing on the merits of a case shall consist of a short statement to
the following effect: ``[Party name] requests a hearing pursuant to 37
CFR 222.14(e).'' The statement should include the reasons why the party
believes the request should be granted.
(e) Scheduling order. When the Board determines that a hearing on
the merits of a case is appropriate, it will issue an amended
scheduling order setting forth the date of the hearing and deadlines
for any additional evidence requested by the Board or for a pre-hearing
conference, if applicable.
(f) Close of evidence. Following a hearing on the merits of a case,
no additional written testimony or evidence may be submitted to the
Board unless at the Board's specific request.

Sec. 222.16 Withdrawal of claims; dismissal.

A party may request to withdraw its own claim or counterclaim by
filing a written request with the Board seeking withdrawal, and
therefore dismissal. Such written request shall consist of a brief
statement seeking dismissal and shall be signed by the party seeking
the dismissal.
(a) Before a response. If the written request is received before a
response to the claim or counterclaim is filed with the Board, the
Board shall dismiss the claim or counterclaim without prejudice, unless
all parties agree in a written stipulation filed with the Board that
the claim or counterclaim shall be dismissed with prejudice.
(b) After a response. If the written request is received after a
response to the claim or counterclaim is filed with the Board, the
Board shall issue a final determination dismissing the claim or
counterclaim with prejudice, unless the Board determines in the
interests of justice that such dismissal shall be without prejudice or
all parties agree in a written stipulation filed with the Board that
the claim or counterclaim shall be dismissed without prejudice.
(c) Effect of dismissal. Dismissal of a claim or counterclaim under
this section will not affect remaining claims or counterclaims in the
proceeding.

Sec. 222.17 Settlement.

(a) General. The Board shall encourage voluntary settlement between
the parties of any claims or counterclaims. The appropriateness of a
settlement conference, at a minimum, shall be raised at the pre-
discovery and post-discovery conferences set forth in Sec. 222.10(b).
(b) Requesting settlement conference--(1) Timing. At any point in
an active proceeding, some or all of the parties may jointly request a
conference with an Officer to facilitate settlement discussions.
(2) Form and content of request. The request can be made orally at
any Board conference or it can be made in writing. If made in writing,
the request shall consist of a brief letter requesting a settlement
conference and indicating which parties join in the request. The
parties may also include in such letter a request to stay the
proceedings while settlement discussions are ongoing. Granting a
request for a stay shall be at the Board's discretion.
(3) Response to request. Any party that objects to the request for
a settlement conference, or joins in the request for a settlement
conference but not a request for a stay of proceedings, may file a
response with the Board within seven days of the date of service of the
request seeking a settlement conference. Such response shall consist of
a brief letter indicating that the party objects to a settlement
conference, or a stay of proceedings, and stating the basis for that
objection.
(c) Scheduling settlement conference. If the request for a
settlement conference, and any request for a stay, is jointly made
among the parties, or if no party files a response within seven days of
the date of service of the request, the Board shall schedule a
settlement conference with all parties subject to the request. If one
or more parties files a response, upon consideration of the objections
and whether any claims or counterclaims may be resolved with only the
consenting parties in attendance, the Board may schedule a conference
with some or all parties.
(d) Settlement proceedings. Three days prior to a settlement
conference, each party participating in the

[[Page 69908]]

conference shall submit a position statement to the presiding Officer
by email and, when there is agreement among the parties, serve such
statement on the other participating parties outside of the electronic
filing system. The position statement shall be in letter form, shall
not exceed five pages, including any salutations and signatures, and
shall attach no more than 20 pages of exhibits, absent leave of the
presiding Officer, although leave shall not be necessary should the
page limit be exceeded due to an exhibit being a necessary agreement or
contract. The statement must set forth:
(1) A brief overview of the facts and contentions;
(2) The relief sought, including the amount of damages, if any;
(3) Whether or to what extent the alleged wrongful conduct is
currently taking place; and
(4) Any prior attempts at resolution, including any offers or
counteroffers made to the other party.
(e) Stay of proceeding. To provide the parties with an opportunity
to pursue settlement and negotiate any resulting settlement agreement,
the Board in its discretion may stay the proceeding for a period of 30
days concurrently with an order scheduling a settlement conference, at
the time of or following the settlement conference, or at the request
of the parties. The parties may request an extension of the stay in
good faith to facilitate ongoing settlement discussions. If a
settlement has not been reached at the time the stay, or any extension
thereof, has expired, the Board shall issue an amended scheduling order
to govern the remainder of the proceeding.
(f) Settlement agreement. If some or all parties reach a
settlement, such parties may submit to the Board a letter that they
jointly wish to dismiss some or all of the claims and counterclaims.
The parties may include a request that the Board adopt some or all of
the terms of the settlement in its final determination.
(g) Effect of settlement agreement. Upon receipt of a joint request
to dismiss claims due to settlement, the Board shall dismiss the claims
or counterclaims contemplated by the agreement with prejudice, unless
the parties have included in their request that the claims or
counterclaims shall be dismissed without prejudice. If the parties have
requested that the Board adopt some or all of the terms of the
settlement in its final determination, the Board may issue a final
determination incorporating such terms unless the Board finds them
clearly unconscionable.

Sec. 222.18 Protective orders.

(a) Standard protective order. At the request of any party, the
Board's standard protective order, as described in this section, shall
govern all discovery material exchanged during the proceeding to
protect against improper use or disclosure.
(1) Standard of use. Discovery material received from another party
may be used only in connection with the proceeding, and all copies must
be returned or disposed of within 30 days of a determination or
dismissal, or within 30 days of the exhaustion of the time for any
review or appeal of the Board's final determination, whichever is
later.
(2) Confidentiality. Discovery material may be designated as
``confidential'' only if the party reasonably and in good faith
believes that it consists of:
(i) Bona fide confidential financial information previously not
disclosed to the public;
(ii) Bona fide confidential and non-obvious business plans, product
development information, or marketing plans previously not disclosed to
the public;
(iii) Any information of a truly personal or intimate nature
regarding any individual not known by the public; or
(iv) Any other category of information that the Board grants leave
to designate as ``confidential.''
(3) Case-by-case basis. Parties must make confidentiality
determinations on a document-by-document basis and shall not designate
as ``confidential'' all discovery material produced in bulk.
(4) Submitting confidential information. Confidential discovery
materials, or references to or discussions of confidential discovery
materials in other documents, may be submitted to the Board by either
filing them under seal or redacting the confidential document. If filed
under seal, the confidential document must be accompanied by a redacted
copy that may be included in the public record.
(5) Determination of confidentiality by the Board. The Board may in
its discretion remove a confidentiality designation from any material
on its own initiative or upon consideration of a request from a party.
Parties are expected to attempt to resolve disputes over
confidentiality designations before bringing such disputes to the
Board.
(b) Custom protective orders. Custom protective orders negotiated
by the parties are disfavored. The parties may request that the Board
enter a custom protective order that has been negotiated by the parties
and that may provide for additional protections for highly sensitive
materials. Such a request must be accompanied by a stipulation between
the parties that explains the need for such a custom protective order.
The Board may in its discretion decide whether to grant the parties'
request for a custom protective order.
(c) Personally identifiable information. Regardless of whether
discovery material has been designated as ``confidential,'' parties
must redact social security numbers, taxpayer identification numbers,
birth dates, health information protected by law, the names of any
individuals known to be minors, and financial account numbers from any
public filings.

Sec. 222.19 Evidence.

(a) Admissibility. All evidence that is relevant and not unduly
repetitious or privileged shall be admissible. Evidence which has
authentication or credibility issues will have its weight discounted
accordingly. The Board reserves the right to discount evidence or not
admit evidence with serious credibility issues entirely, or to request
clarification from a party. The Board may apply FRE 401 and 403 in
weighing evidence, but the Board is not bound by the FRE. Parties may
cite to the FRE as persuasive authority when making an argument about
the credibility, weight, or admissibility of a piece of evidence.
(b) Examination of witnesses. All witnesses testifying at a hearing
before the Board shall be required to take an oath or affirmation
before testifying. At a hearing, parties may conduct direct examination
(substantively limited to the testimony of the witness in the written
statements and an oral summary of that testimony); cross-examination
(limited to matters raised on direct examination or submitted through
witness statements); and redirect examination (limited to matters
raised on cross-examination). The Board may limit the number of
witnesses or scope of questioning.
(c) Exhibits in hearing--(1) Submission. Unless they are
specifically excluded by the Board's own initiative or due to the
Board's ruling on an objection raised by a party, all properly
sponsored documents submitted by the parties through their statements
submitted under Sec. 222.14 shall be deemed admitted and marked as
exhibits in the same order as presented through the party's document
statement. To the extent additional documents are allowed by the Board
at a hearing on the merits, such evidence may also be presented as
exhibits to all parties and marked by the presenting party starting
with the next number after the exhibits

[[Page 69909]]

attached to the party's document statement.
(2) Separation of irrelevant portions. In any large documents,
relevant and material matter in an exhibit must be plainly marked to
distinguish it from immaterial or irrelevant material.
(3) Summary exhibits. The contents of voluminous documentary
evidence which cannot be conveniently examined at the hearing may be
presented in the form of a chart, summary, or calculation. Absent leave
of the Board, evidence supporting the summary exhibit must have been
produced to the other parties in discovery and admitted as exhibits.
(d) Objections. Parties are entitled to raise objections to
evidence during the course of the hearing and to raise an objection
that an opposing party has not furnished non-privileged underlying
documents.
(e) New exhibits for use in cross-examination or redirect
examination. Exhibits not submitted as part of written testimony may be
shown to a witness on cross-examination or redirect examination only
for the purposes of impeachment or rehabilitation. Copies of such
exhibits must be distributed to the Board and other parties before
being shown, unless the Board directs otherwise.
0
7. Part 225 is added to read as follows:

PART 225--DISCOVERY

Sec.
225.1 General practices.
225.2 Standard interrogatories.
225.3 Requests for admission.
225.4 Standard production of document requests.
225.5 Disputes and sanctions.

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

Sec. 225.1 General practices.

This part prescribes rules pertaining to procedures for discovery
conducted in proceedings before the Copyright Claims Board (``Board'').
(a) Standard discovery practice. Except as otherwise provided in
this section, discovery in proceedings before the Board shall be
limited to the methods set forth in this part and shall use the
standard forms provided on the Board's website. Discovery responses and
documents shall be served on the other parties, but shall not be filed
with the Board unless as part of written testimony or as needed in
support of other filings.
(1) Certifications. All discovery material exchanged among the
parties or submitted to the Board must include a certification by the
party submitting such material that it is accurate and truthful.
(2) Form of requests to Board. Requests to the Board related to
discovery may be raised to the Board during a conference or by letter,
as set forth in this section.
(b) Timing of discovery. The exchange of discovery material shall
take place at the times and within the deadlines specified by the
scheduling order. The Board may modify the discovery deadlines set
forth in the scheduling order at the request of any party upon a
showing of good cause or through its own initiative. Such requests may
be made orally during a conference with the Board or by letter. Any
letter requests shall be limited to two pages and shall set forth the
original date of the deadline and the requested extension, provide the
basis for the scheduling modification, indicate whether the other
parties consent or object to the modification, and whether any other
dates in the scheduling order will be affected by the modification. Any
party that objects to the requested scheduling modification may file a
response letter within three days of the date of service of the letter
request, which shall be limited to two pages and set forth the basis
for the objection.
(c) Conferences. The Board shall hold a pre-discovery conference
and a post-discovery conference, as set forth in 37 CFR 222.10. The
Board may hold additional conferences to manage discovery and resolve
any disputes, at its own election or at the request of any party.
Conferences may be held by one or more Copyright Claims Officers
(``Officers''), with the exception of post-discovery conferences and
any conferences to decide a dispute, both of which shall be held by one
or more Officers. Conferences shall be held virtually.
(d) Request for additional discovery. Any party may request
additional discovery within the deadlines set forth in the scheduling
order.
(1) Allowable discovery. Except for the standard discovery provided
in this part, any additional discovery requested must be narrowly
tailored to the issues at hand, not covered by the standard discovery
set forth in this part, highly likely to lead to the production of
information relevant to the core issues of the matter, and not result
in an undue burden on the party responding to the request.
(2) Standard for additional discovery. The Board will grant a
request for additional discovery upon a showing of good cause. In
considering a request for additional discovery, the Board shall balance
the needs and circumstances of the case against the burden of
additional discovery on any party, along with the amount in dispute and
overall goal of efficient resolution of the proceeding.
(3) Consent from parties. Prior to filing a request for additional
discovery, the requesting party should make reasonable efforts to
secure the consent of, or a compromise with, the other party regarding
the proposed additional discovery request.
(4) Form of request. A request for additional discovery must be
made by letter, no more than three pages, not including the additional
requests themselves--
(i) Specifically indicating the means of additional discovery
requested and the information sought;
(ii) Setting forth the basis and justifications for the request;
(iii) Indicating whether the other parties consent or object to the
request; and
(iv) Attaching a copy of the additional discovery requests.
(5) Response to request. Within seven days of the date of service
of a letter requesting additional discovery, any party that opposes the
request may file a response letter of no more than three pages. No
reply letters shall be permitted, unless the Board grants leave for a
reply.
(e) Request for expert witnesses. An expert witness may be used in
a proceeding only with leave of the Board. The use of expert witnesses
in proceedings before the Board is highly disfavored and requests shall
be rarely granted.
(1) Standard for permitting expert witnesses. The Board shall grant
a request by a party to introduce an expert witness only in exceptional
circumstances and upon a showing that the case cannot fairly proceed
without the use of the expert. In considering a request for an expert
witness, the Board shall balance the needs and circumstances of the
case, and whether the request is made by one party or jointly among the
parties, against the burden that permitting the expert testimony would
impose on any other party, the costs to the opposing party of retaining
a rebuttal witness, the amount in dispute, and the overall goal of
efficient resolution of the proceeding. If the Board grants a request
by a party to introduce an expert witness, an opposing party shall have
the opportunity to introduce a rebuttal expert witness as a matter of
course within an appropriate amount of time set by the Board. The Board
will set a schedule for the service of the expert report and any
rebuttal report and will adjust the dates in the existing scheduling
order as needed.

[[Page 69910]]

(2) Form of request. A request for an expert witness must be made
by letter, no more than five pages, at the time set forth for requests
for additional discovery in the scheduling order. The letter must
specifically indicate the topics of the expert's proposed testimony,
the name of the proposed expert, and the anticipated cost of retaining
the expert, and must set forth the basis and justifications for the
request, and indicate whether the other parties consent or object to
the request.
(3) Form of response. Within seven days of the date of service of a
request for leave to offer an expert witness, any party that opposes
the request may file a response letter of no more than five pages. No
reply letters shall be permitted, unless the Board grants leave for a
reply.
(4) Form of expert testimony. Any expert testimony permitted by the
Board shall be submitted along with the offering party's written direct
or response testimony in the form of an expert statement. An expert
statement must--
(i) Be sworn under penalty of perjury by the expert witness;
(ii) Be organized into numbered paragraphs;
(iii) Be detailed as to the substance of the expert's opinion and
the basis and reasons therefor;
(iv) Disclose the facts or data considered by the expert witness in
forming the expert witness's opinions;
(v) Describe the expert witness's qualifications, including a list
of all publications authored and speaking engagements in the previous
10 years;
(vi) Include a list of all other cases in which the expert witness
testified as an expert at trial or by deposition during the previous
four years; and
(vii) Include a statement of the compensation to be paid for the
study and testimony in the case.
(5) Unauthorized expert testimony. Any expert testimony that is
introduced in any way without the Board's express permission shall be
stricken by the Board and shall not be considered in the Board's
determination.
(f) Definitions. As used in this part, the term ``document'' shall
refer to any tangible piece of information--including writings,
drawings, graphs, charts, photographs, sound recordings, images, and
other data or data compilations--stored in any medium from which
information can be obtained either directly or, if necessary, after
translation by the responding party into a reasonably usable form,
whether in written or electronic form, an object, or otherwise. The
Board shall read this definition broadly so that there is a
comprehensive production of materials by each side needed to fairly
decide matters before the Board, so long as that production is easily
accomplished by a layperson.

Sec. 225.2 Standard interrogatories.

(a) General. Parties in an active proceeding shall use the set of
standard interrogatories provided on the Board's website. Standard
interrogatories shall consist of information pertaining to:
(1) The identity and nature of witnesses whom the parties plan to
use in the proceeding, including contact information for the witnesses,
if known;
(2) The identity of any other individuals who may have material
information related to the claims or defenses, including contact
information for the individuals, if known;
(3) Any agreement or other relationship between the parties
relevant to the claim;
(4) Any damages sought; and
(5) A description of documents relevant to the claims and defenses.
(b) For a party asserting infringement. In addition to the witness,
damages, and document description information in paragraph (a) of this
section, the standard interrogatories for a party asserting an
infringement claim or responding to a claim for non-infringement shall
consist of information pertaining to:
(1) The allegedly infringed work's copyright registration, to the
extent such information differs from or adds to information provided in
the claim;
(2) The allegedly infringed work's compliance with any relevant
copyright formalities;
(3) The party's ownership of the copyright in the allegedly
infringed work;
(4) Publication history for the allegedly infringed work;
(5) The creation date and creation process for the allegedly
infringed work, including whether the work is a joint or derivative
work or was created through employment or subject to an agreement;
(6) Where the allegedly infringed work is a derivative work, the
preexisting elements in the work, including ownership of those
preexisting elements, and rights to use those preexisting elements;
(7) A description of the alleged infringer's access to the
allegedly infringed work, if known;
(8) The basis for the party's belief that the opposing party's
activities constitute infringement of the allegedly infringed work;
(9) The discovery of the opposing party's alleged infringement by
the party;
(10) A description and calculation of the damages suffered by the
party as a result of the alleged infringement; and
(11) Any attempts by the party to cause the infringement to be
ceased or mitigated prior to bringing the claim.
(c) For a party asserting non-infringement. In addition to the
information in paragraph (a) of this section, the standard
interrogatories for a party responding to an infringement claim or
asserting a claim for non-infringement shall consist of information
pertaining to:
(1) The party's ownership of the copyright in the allegedly
infringing material;
(2) The publication history of the allegedly infringing material;
(3) The creation date and creation process for the allegedly
infringing material, including whether any allegedly infringing work is
a joint or derivative work or was created through employment or subject
to an agreement;
(4) Where the allegedly infringing material is a derivative work,
the preexisting elements in the work, including ownership of those
preexisting elements, and rights to use those preexisting elements;
(5) Any information indicating that the party alleging infringement
does not own a copyright in the allegedly infringed work;
(6) All defenses to infringement asserted by the party and a
detailed basis for those defenses;
(7) The basis for any other reasons the party believes that its
actions do not constitute infringement;
(8) Any continued use of the allegedly infringing material; and
(9) For a party responding to infringement claims or counterclaims,
the revenues and profits the party has received directly related to the
sale or use of the allegedly infringing material, as well as the
deductible expenses directly related to that sale or use, and the
elements of profit for that sale or use attributable to factors other
than the copyrighted work.
(d) For a party asserting misrepresentation. In addition to the
information in paragraph (a) of this section, the standard
interrogatories for a party asserting a claim of misrepresentation
under 17 U.S.C. 512(f) shall consist of information pertaining to:
(1) The notification or counter notification that allegedly
contained a misrepresentation;
(2) The identity of the internet service provider to which the
notification or counter notification was sent;
(3) Any communications with the internet service provider, the
parties, or

[[Page 69911]]

others related to the notification or counter notification at issue;
(4) The basis for the party's belief that the notification or
counter notification included a misrepresentation; and
(5) The harm, including a description and calculation of damages,
caused by the alleged misrepresentation.
(e) For a party responding to misrepresentation claims. In addition
to the information in paragraph (a) of this section, the standard
interrogatories for a party responding to a claim of misrepresentation
under 17 U.S.C. 512(f) shall consist of information pertaining to:
(1) All defenses asserted to the misrepresentation claim and the
basis for those assertions;
(2) The basis for any other reasons the party believes that its
statement did not constitute a misrepresentation; and
(3) Any communications with the internet service provider, the
parties, or others related to the notification or counter notification
at issue.
(f) Duty to update. A party has an obligation to update its
interrogatory responses and serve updated responses on the other
parties as soon as practicable after the discovery of new or updated
information.

Sec. 225.3 Requests for admission.

(a) General. Parties in an active proceeding may serve a maximum of
10 requests for admission on each other party relating to:
(1) Facts, the application of law to fact, or opinions about
either; and
(2) The genuineness of any described documents, a copy of which
must be attached to the request for admission.
(b) Form. Each matter must be separately stated in a request for
admission in a numbered paragraph. Compound requests for admission
shall not be permitted.
(c) Responses to requests for admission. A response to a request
for admission must be served within 30 days from the date of service of
a request for admission. A matter admitted is conclusively established
unless the Board, on request and for good cause shown, permits the
admission to be withdrawn or amended. If a matter is not admitted, the
answer must specifically deny it or state in detail why the responding
party cannot truthfully admit or deny it. A denial must fairly respond
to the substance of the matter, and when good faith requires that a
party qualify an answer or deny only part of a matter, the answer must
specify the part admitted and qualify or deny the rest. The responding
party may assert lack of knowledge or information as a reason for
failing to admit or deny only if the party states that it has made
reasonable inquiry and that the information it knows or can readily
obtain is insufficient to enable it to admit or deny.
(d) Failure to respond. A matter is not automatically admitted if a
party fails to respond to a request for admission within the required
timeframe. However, the Board may deem it admitted in the Board's
discretion subject to the Board's power to apply adverse inferences to
discovery violations under 17 U.S.C. 1506(n)(3).

Sec. 225.4 Standard production of document requests.

(a) General. Parties in an active proceeding shall use the relevant
set of standard production of document requests provided on the Board's
website. Standard production of document requests shall include copies
of:
(1) All documents the party is likely to use in support of its
claims or defenses;
(2) All other documents of which the party is reasonably aware that
conflict with the party's claims or defenses;
(3) All documents related to damages; and
(4) All documents referred to in, or that were used in preparing,
any of the party's responses to standard interrogatories.
(b) For a party asserting infringement. In addition to the
information in paragraph (a) of this section, the standard production
of document requests for a party asserting an infringement claim or
responding to a claim for non-infringement shall include copies of:
(1) The work claimed to be infringed, its copyright registration,
and all correspondence with the Copyright Office regarding that
registration;
(2) The allegedly infringing material, if reasonably available;
(3) Where the allegedly infringed work is a derivative work,
documents showing the preexisting works used and related to ownership
of and rights to use those preexisting elements;
(4) Documents related to the allegedly infringing material,
including communications about the allegedly infringing material;
(5) Agreements related to ownership of or rights in the works at
issue;
(6) Documents related to the party's ownership of the copyright in
the allegedly infringed work;
(7) Documents relating to the damages suffered by the party as a
result of the alleged infringement; and
(8) Documents related to attempts by the party to cause the
cessation or mitigation of infringement prior to bringing the claim.
(c) For a party asserting non-infringement. In addition to the
information in paragraph (a) of this section, the standard production
of document requests for a party responding to an infringement claim or
asserting a claim for non-infringement shall include copies of:
(1) The allegedly infringing material;
(2) Documents related to the allegedly infringed work, including
communications regarding the allegedly infringed work;
(3) Documents related to the creation of the allegedly infringing
material or rights regarding the allegedly infringing material;
(4) Agreements related to ownership of or rights in the works at
issue; and
(5) For a party responding to infringement claims or counterclaims,
documents related to the revenues and profits the party has received
directly related to the sale or use of the allegedly infringing
material, as well as the deductible expenses directly related to that
sale or use, and the elements of profit for that sale or use
attributable to factors other than the copyrighted work.
(d) For party asserting misrepresentation. In addition to the
information in paragraph (a) of this section, the standard production
of document requests for a party asserting a claim of misrepresentation
under 17 U.S.C. 512(f) shall include copies of:
(1) The notification or counter notification at issue;
(2) Communications with the internet service provider concerning
the notification or counter notification at issue; and
(3) Documents pertaining to the truth or falsity of any
representations made in the notification or counter notification.
(e) For party responding to misrepresentation claims. In addition
to the information in paragraph (a) of this section, the standard
production of document requests for a party responding to a claim of
misrepresentation under 17 U.S.C. 512(f) shall include copies of:
(1) Communications with the internet service provider concerning
the notification or counter notification at issue; and
(2) Documents pertaining to the truth or falsity of any
representations made in the notification or counter notification.
(f) Document searches and productions--(1) General. Each party
shall have an obligation to conduct a reasonable search for any
responsive documents of any files in its possession or under its
control, including the files of any of the party's agents, employees,

[[Page 69912]]

representatives, or others acting on the party's behalf.
(2) Electronically stored information. Documents responsive to the
standard requests, or any additional requests permitted by the Board,
may include electronically stored information (``ESI''), including
emails and computer files. A reasonable search under the circumstances
shall include the ESI of the party and the party's agents, employees,
representatives, or others acting on the party's behalf, except that--
(i) ESI searches shall not exceed manual searches that are easily
accomplished by a layperson; and
(ii) Parties need not conduct searches that would reasonably
require the assistance of third parties, such as a document vendor that
the party would have to hire to assist with or accomplish document
collection or storage.
(3) Voluminous productions. Responses to document requests that
include large amounts of irrelevant or duplicative material shall
constitute bad-faith conduct.
(4) Responsive documents no longer in possession of party. A party
shall disclose any materially responsive documents that the party is
aware exist or once existed, but are no longer in the possession of
that party, and shall explain why the documents are no longer in the
possession of the party, including the circumstances surrounding any
destruction of documents.
(5) Duty to update. A party has an obligation to preserve all
material documents and to update its production of documents by
providing to the other parties any documents it later finds responsive
to the Board's standard requests or any other document requests allowed
by the Board as soon as practicable after the discovery of such
documents.

Sec. 225.5 Disputes and sanctions.

(a) Obligation to attempt resolution. Parties shall attempt in good
faith to resolve any discovery disputes without the involvement of the
Board. A party must confer with an opposing party, at least through a
phone call, in an attempt to reach a resolution prior to raising any
discovery dispute with the Board.
(b) Request for conference to resolve dispute. If an attempt to
resolve a discovery dispute fails, the party seeking discovery may file
a request by letter, no more than three pages not including the
attachments referred to in this paragraph (b), for a conference with
the Board. The letter request shall:
(1) Describe the dispute;
(2) State that party's position with respect to the dispute;
(3) Include a statement that the request is made following an
attempted resolution call between the parties along with the date of
such call, or explain why a call was not possible; and
(4) Attach the relevant discovery responses already provided by the
opposing party, except for disputes pertaining to production of
document requests, which shall attach a list of documents produced in
response to the requests.
(c) Response to request for conference. Within seven days of the
date of service of the letter request, an opposing party may submit a
response to a request for a conference by letter, no more than three
pages, not including any attachments, which states the opposing party's
position with respect to the dispute. No reply letters shall be
permitted, unless the Board grants leave for a reply.
(d) Determination by Board. Following receipt of the request and
any response, the Board may schedule a conference to address the
discovery dispute in its discretion. One or more Officers may
participate in the conference. During or following the conference, the
Board shall issue an order resolving the discovery dispute and, in the
event of a decision in favor of the aggrieved party, setting a deadline
for compliance.
(e) Failure to comply with order. If a party fails to timely comply
with the Board's discovery order, the party seeking discovery may send
a notice to the noncompliant party giving the noncompliant party 10
days to comply. If the noncompliant party fails to comply within 10
days of receipt of the notice, the aggrieved party may file a request
for sanctions with the Board.
(f) Sanctions--(1) Form of request for sanctions. A request for
sanctions shall be no more than 10 double-spaced pages, not including
the attachments referred to in this paragraph (f)(1), in 12-point font
or larger, for both body text and footnotes, with at least one-inch
margins on the top, bottom, left, and right of each page and shall
attach the relevant discovery responses already provided by the
opposing party, except for disputes pertaining to production of
document requests, which shall attach a list of documents produced in
response to the requests.
(2) Form of response to request for sanctions. Within 14 days of
the date of service of the request for sanctions, the opposing party
may file a response to the request. The response shall be no more than
10 double-spaced pages in 12-point font or larger, for both body text
and footnotes, with at least one-inch margins on the top, bottom, left,
and right of each page. No reply papers will be accepted absent leave
of the Board.
(3) Standard for granting request. Following receipt of a request
for sanctions and any response from the opposing party, the Board may
hold a conference to address the request for sanctions. In the Board's
sole discretion and upon good cause shown, sanctions may be imposed if
the opposing party is found to be noncompliant with the Board's
discovery order.
(4) Relief. Sanctions imposed for noncompliance with a discovery
order of the Board may include an adverse inference with respect to the
disputed facts directly related to the discovery in question against
the noncompliant party.
(5) Implications for award of attorneys' fees and costs. The Board
may consider the assessment of discovery sanctions when considering the
awarding of attorneys' fees and costs during a final determination.
0
8. Part 226 is added to read as follows:

PART 226--SMALLER CLAIMS

Sec.
226.1 General.
226.2 Requesting a smaller claims proceeding.
226.3 Nature of a smaller claims proceeding.

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

Sec. 226.1 General.

When total monetary relief sought in a claim does not exceed $5,000
(exclusive of attorneys' fees and costs), the claim may be adjudicated
under the procedures set forth in this part.

Sec. 226.2 Requesting a smaller claims proceeding.

A claimant may request consideration of a claim under the smaller
claim procedures in this part at the time of filing a claim. The
claimant may also amend its filing at any time prior to service of the
claim to modify its selection concerning smaller claim procedures. If
the initial notice has already been issued, the claimant shall request
reissuance of the initial notice with the smaller claim proceeding
notice. Once the claimant chooses whether to proceed via a smaller
claims proceeding or via the standard proceeding in 37 CFR parts 222
and 225, it may not amend its choice without consent of the other
parties and leave of the Board.

[[Page 69913]]

Sec. 226.3 Nature of a smaller claims proceeding.

(a) Proceeding before a Copyright Claims Officer. A smaller claims
proceeding shall be heard by one Officer. One of the three Officers
shall hear smaller claims proceedings on a rotating basis at the
Copyright Claims Board's discretion.
(b) Limited discovery. Discovery between the parties is limited to
the standard discovery set forth in 37 CFR 225.2 through 225.4. Parties
may not submit additional discovery requests, and the assigned Officer
will not consider such requests.
(c) No expert testimony. Parties may not submit expert testimony
for consideration. Any expert testimony submitted shall be disregarded
by the assigned Officer.
(d) Determination on written testimony. The Officer will issue a
determination based on the written testimony submitted pursuant to 37
CFR 222.14. No hearing will be held prior to a determination.
0
9. Part 227 is added to read as follows:

PART 227--DEFAULT

Sec.
227.1 Failure by respondent to appear or participate in proceeding.
227.2 Submission of evidence by claimant in support of default
determination.
227.3 Notice of proposed default determination.
227.4 Opportunity for respondent to submit evidence.
227.5 Issuance of determination.

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

Sec. 227.1 Failure by respondent to appear or participate in
proceeding.

(a) General. For purposes of this section, the term ``respondent''
shall include counterclaim respondents. If a respondent fails to file a
response or fails, without justifiable cause, to meet any filing
deadline or other requirement set forth in the scheduling order or
other order, upon notice of a party or by its own initiative, the
Copyright Claims Board (``Board'') may issue a notice to the respondent
following the missed deadline or requirement.
(b) Contents of notice--(1) First notice. A notice issued under
this section shall inform the respondent that failure to participate in
the proceeding may result in the Board entering a default determination
against the respondent, including dismissal of any counterclaims
asserted by the respondent, and shall explain the legal effects of a
default determination. The notice shall provide the respondent with 30
days from the date of the notice to cure the missed deadline or
requirement. The notice shall be issued to the respondent by mail and
all known email addresses.
(2) Second notice. If the respondent has failed to respond 15 days
after the notice of the pendency of the default determination, the
Board shall send a second notice to the respondent according to the
procedures set forth in paragraph (b)(1) of this section. Such notice
shall attach the first notice and shall remind the respondent that it
must cure the missed deadline or requirement within 30 days from the
date of the first notice.
(c) Response to notice. If the respondent cures the missed deadline
or requirement within the time specified by the notice, the proceeding
shall resume and the Board shall issue a revised scheduling order, if
necessary. If the respondent fails to timely cure but submits a
response that indicates an intent to re-engage with the proceeding, the
Board shall consider the response and either provide the respondent
with additional time to meet the deadline or proceed with the default
determination process. If the respondent fails to cure the missed
deadline or requirement within the time specified by the notice and
does not otherwise respond to the notice, the Board shall require the
claimant to submit evidence in support of a default determination, as
set forth in Sec. 227.2.
(d) Multiple missed deadlines. A respondent may cure a missed
deadline according to the procedure set forth in this section twice
without default being issued. If the respondent misses a third deadline
in the scheduling order without good cause, the Board may, in its
discretion, proceed directly to requiring submission of evidence to
proceed with a default determination as set forth in Sec. 227.2.

Sec. 227.2 Submission of evidence by claimant in support of default
determination.

(a) General. If a respondent fails to appear or ceases to
participate in the proceeding and the Board elects to proceed to a
default determination, the Board shall require the claimant to submit
written direct testimony, as set forth in Sec. 227.1.
(b) Additional evidence. Following submission of the claimant's
written testimony in support of a default determination, the Board
shall consider the claimant's submissions and may request any
additional evidence from the claimant within the claimant's possession.

Sec. 227.3 Notice of proposed default determination.

(a) Consideration of evidence. Following submission of evidence by
the claimant, as set forth in Sec. 227.2, the Board shall review such
evidence and shall determine whether it is sufficient to support a
finding in favor of the claimant under applicable law. As part of its
review, the Board shall consider whether the respondent has a
meritorious defense. If the Board finds the evidence sufficient to
support a finding in favor of the claimant, it shall determine the
appropriate relief and damages, if any, to be awarded.
(1) If the Board determines that the evidence is sufficient to
support a finding in favor of the claimant, the Board shall prepare a
proposed default determination.
(2) If the Board determines that the evidence is insufficient to
support a finding in favor of the claimant, the Board shall dismiss the
proceeding without prejudice.
(b) Proposed default determination. The proposed default
determination shall include a finding in favor of the claimant and the
damages awarded, if any. The proposed default determination shall also
include dismissal of any counterclaims asserted by the respondent.
(c) Notice to respondent. The Board shall provide written notice to
the respondent of the pendency of the default determination and the
legal significance of the default determination, including any
liability for damages, if applicable, as set forth in 17 U.S.C.
1506(u)(2). The notice shall be accompanied by the proposed default
determination and shall provide the respondent 30 days, beginning on
the date of the notice, to submit any evidence or other information in
opposition to the proposed default determination.

Sec. 227.4 Opportunity for respondent to submit evidence.

(a) Response to notice by respondent. The respondent may submit in
writing any evidence or information in opposition to the proposed
default determination. The Board shall consider the submission and may
request that the respondent submit additional information, including in
the form of written response testimony, as set forth in 37 CFR 222.14,
by a deadline set by the Board. If the respondent fails to timely
submit evidence but submits a response that indicates an intent to re-
engage with the proceeding, the Board shall consider the response and
either provide the respondent with additional

[[Page 69914]]

time to submit evidence or proceed with issuing the default
determination.
(b) Response to respondent's submissions. If the respondent
provides any evidence or other information in response to the notice of
the pending default determination, the other parties to the proceeding
shall be provided an opportunity to address such submissions by a
deadline set by the Board.
(c) Hearings. The Board may hold a hearing at its discretion.

Sec. 227.5 Issuance of determination.

(a) Determination after respondent submits evidence. If the
respondent provides evidence or information as set forth in Sec.
227.4, the Board shall consider all submissions. The Board then shall
maintain or amend its proposed default determination. The resulting
determination shall not be a default determination and instead shall be
a final determination. The respondent may not challenge such
determination under 17 U.S.C. 1508(c)(1)(C) and may only request
reconsideration pursuant to 17 U.S.C. 1506(w) and the procedures set
forth in part 230 of this subchapter.
(b) Determination after respondent fails to respond to notice. If
the respondent fails to respond to the notice of pending default
determination, the Board shall issue the proposed default determination
as a final determination. The respondent may only challenge such
determination to the extent permitted under 17 U.S.C. 1508(c) or the
procedures set forth in paragraph (c) of this section.
(c) Vacating a default determination. If additional proceedings
have not been initiated under 17 U.S.C. 1508(c), the respondent may
request in writing that the default determination be vacated and
provide the reasons why the decision should be vacated. The respondent
and claimant shall follow the general procedures for a request for
reconsideration as set forth in part 230 of this subchapter. The Board
may vacate the default determination in the interests of justice.
0
10. Part 228 is added to read as follows:

PART 228--CLAIMANT'S FAILURE TO PROCEED

Sec.
228.1 Claimant or counterclaimant's failure to complete service.
228.2 Claimant or counterclaimant's failure to prosecute.

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

Sec. 228.1 Claimant or counterclaimant's failure to complete service.

(a) Failure to serve a respondent who is not a necessary party. If
a claimant fails to timely complete service on a respondent who is not
a necessary party, pursuant to 37 CFR 222.13, the Copyright Claims
Board (``Board'') shall dismiss that respondent from the proceeding
without prejudice. The proceeding shall continue against any remaining
respondents.
(b) Failure to serve a respondent who is a necessary party. If a
claimant fails to timely complete service on a respondent who is a
necessary party, pursuant to 37 CFR 222.13, the Board shall dismiss the
proceeding without prejudice.
(c) Complete failure to serve respondents. For a claim to proceed,
a claimant must complete service on at least one respondent. If a
claimant does not timely file any proof of service, the Board shall
dismiss the proceeding without prejudice.

Sec. 228.2 Claimant or counterclaimant's failure to prosecute.

(a) General. If a claimant or counterclaimant fails to proceed in
an active proceeding without justifiable cause, as demonstrated by a
failure to meet any filing deadline or requirement set forth in the
scheduling order or other order, upon request of a party or on its own
initiative, the Board shall issue a notice following the missed
deadline or requirement.
(b) Contents of notice. (1) A notice issued under paragraph (a) of
this section shall inform the claimant that failure to proceed in the
proceeding may result in the Board issuing a determination dismissing
the claimant's claims, including an award of attorneys' fees and costs
where appropriate, and shall explain the legal effects of such a
determination. The notice shall provide the claimant with 30 days,
beginning on the date of the notice, to respond to the notice and meet
the missed deadline or requirement. The notice shall be issued to the
claimant by mail and all known email addresses.
(2) If the claimant has failed to respond 15 days after the notice
of the failure to proceed, the Board shall send a second notice to the
claimant according to the procedures set forth in paragraph (b)(1) of
this section. Such notice shall attach the first notice and shall
remind the claimant that it must respond and meet the missed deadline
or requirement within 30 days from the date of the first notice.
(c) Response to notice. (1) If the claimant cures the missed
deadline or requirement within the time specified by the notice, the
proceeding shall resume and the Board shall issue a revised scheduling
order, if necessary.
(2) If the claimant fails to cure the missed deadline or
requirement within the time specified by the notice but submits a
response that indicates an intent to re-engage with the proceeding, the
Board shall consider the response and either provide the claimant with
additional time to cure the missed deadline or requirement or issue a
determination dismissing the claimant's claims.
(3) If the claimant fails to cure the missed deadline or
requirement within the time specified by the notice and does not
otherwise respond to the notice, the Board shall issue a determination
dismissing the claimant's claims.
(d) Determination dismissing claims. A determination dismissing the
claimant's claims for failure to proceed in the active proceeding shall
be with prejudice and shall include an award of attorneys' fees and
costs pursuant to 37 CFR 232.3, if appropriate. The claimant may only
challenge such determination to the extent permitted under 17 U.S.C.
1508(c) or the procedures set forth in paragraph (e) of this section.
(e) Vacating a determination dismissing claims. If additional
proceedings have not been initiated under 17 U.S.C. 1508(c), the
claimant may request in writing that the determination be vacated and
provide the reasons supporting the request. The claimant and respondent
shall follow the general procedures for a request for reconsideration
as set forth in part 230 of this subchapter. The Board may vacate the
determination of dismissal in the interests of justice.
0
11. Part 229 is added to read as follows:

PART 229--RECORDS AND PUBLICATION

Sec.
229.1 Access to records and proceedings.
229.2 Record certification.

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

Sec. 229.1 Access to records and proceedings.

(a) Official written record. Submissions by parties to a proceeding
and documents issued by the Copyright Claims Board (``Board'') shall
constitute the official written record.
(b) Access to record. Any member of the public may inspect the
official written record through the electronic filing system, except
any materials that have been marked confidential pursuant to 37 CFR
222.18.

[[Page 69915]]

(c) Attendance at hearing. Attendance at a Board hearing, including
virtual hearings, is limited to the parties to the proceeding and their
representatives, except with leave of the Board. A request for
attendance may be made in writing.
(d) Hearing transcript. The Board may cause a transcript of a
hearing to be made by using an official reporter or any technology that
is available to the Board. At the request of any party, the Board may
designate an official reporter to attend and transcribe a hearing or to
prepare a transcript from a recording of a hearing. The requesting
party or parties shall pay the reporter directly for the cost of
creating an official transcript.

Sec. 229.2 Record certification.

Upon a written request to the Records Research and Certification
Section of the U.S. Copyright Office pursuant to 37 CFR 201.2, and
payment of the appropriate fee pursuant to 37 CFR 201.3, the Board will
certify the official record of a proceeding.
0
12. Part 230 is added to read as follows:

PART 230--REQUESTS FOR RECONSIDERATION

Sec.
230.1 General.
230.2 Request for reconsideration.
230.3 Response to request.
230.4 No new evidence.
230.5 Determination.

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

Sec. 230.1 General.

This part prescribes rules pertaining to procedures for
reconsideration of a final determination issued by the Copyright Claims
Board (``Board''). A party may request reconsideration according to the
procedures in this part if the party identifies a clear error of law or
fact material to the outcome or a technical mistake. A party may also
request reconsideration to vacate a default determination.

Sec. 230.2 Request for reconsideration.

Upon receiving a final determination from the Board, any party may
request that the Board reconsider its determination. Such a request
must be filed within 30 days of the determination and shall be no more
than 12 doubled-spaced pages in 12-point font or larger, for both body
text and footnotes, with at least one-inch margins on the top, bottom,
left, and right of each page. The request must identify a clear error
of law or fact that was material to the outcome or a technical mistake.
The request shall not merely repeat any oral or written argument made
to the Board as part of the proceeding but shall be specific as to the
purported error or technical mistake that is the subject of the
request.

Sec. 230.3 Response to request.

A party opposing a request for a reconsideration may file a
response to the request within 21 days of the date of service of the
request. Such response shall be no more than 12 double-spaced pages in
12-point font or larger, for both body text and footnotes, with at
least one-inch margins on the top, bottom, left, and right of each
page. No reply shall be filed by the party seeking reconsideration
absent leave of the Board.

Sec. 230.4 No new evidence.

Evidence that was not previously submitted to the Board as part of
written testimony or at a hearing or in response to a specific request
for evidence from the Board shall not be submitted as part of a request
for reconsideration or a response to a request, except where the party
demonstrates, through clear and convincing evidence, that the evidence
was not available to that party in the exercise of reasonable diligence
prior to the submission of written testimony or prior to the hearing.

Sec. 230.5 Determination.

After the filing of response papers or after the time for a party
opposing the request for reconsideration to file a response has
elapsed, the Board shall consider the request and any response and
shall either deny the request for reconsideration or issue an amended
final determination. The Board will base its decision on the party's
written submissions.
0
13. Part 231 is added to read as follows:

PART 231--REGISTER'S REVIEW

Sec.
231.1 General.
231.2 Request for Register's review.
231.3 Response to request.
231.4 No new evidence.
231.5 Standard of review.
231.6 Determination.

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

Sec. 231.1 General.

This part prescribes rules pertaining to procedures for review by
the Register of Copyrights of a final determination by the Copyright
Claims Board (``Board''). A party whose request for reconsideration has
been denied under 37 CFR 230.5 may seek review of the final
determination by the Register of Copyrights not later than 30 days
after a request for reconsideration has been denied in whole or in
part.

Sec. 231.2 Request for Register's review.

A party may not file for review of the Board's final determination
by the Register of Copyrights unless it has first filed, and had
denied, a request for reconsideration. Where the Board has denied a
request for reconsideration, the party who requested reconsideration
may request review of the final determination by the Register of
Copyrights. Such a request must be filed within 30 days of the denial
of a request for reconsideration and shall be no more than 15 doubled-
spaced pages in 12-point font or larger, for both body text and
footnotes, with at least one-inch margins on the top, bottom, left, and
right of each page. The request must include the reasons the party
believes there was an abuse of discretion in denying the request for
reconsideration. The request must be accompanied by the filing fee set
forth in 37 CFR 201.3(g).

Sec. 231.3 Response to request.

A party opposing the request for review may file a response to the
request for review within 21 days of the date of service of the
request. Such response shall be no more than 15 double-spaced pages in
12-point font or larger, for both body text and footnotes, with at
least one-inch margins on the top, bottom, left, and right of each
page. The request must include the reasons the party believes there was
no abuse of discretion in denying the request for reconsideration. No
reply filings shall be permitted.

Sec. 231.4 No new evidence.

Sec. 231.5 Standard of review.

The Register's review shall be limited to consideration of whether
the Board abused its discretion in denying reconsideration of the
determination.

Sec. 231.6 Determination.

After the filing of response papers or after the time for a party
opposing the request for review to file a response has elapsed, the
Register shall consider the request and any response and shall either
deny the request for review or remand the proceeding to the Board for
reconsideration of issues specified in the remand and for issuance of
an amended final determination. The Register will base such a decision
on the party's written submissions.

[[Page 69916]]

0
14. Part 232 is added

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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.