F:\M14\JEFFNY\JEFFNY_045.XML ..................................................................... (Original Signature of Member) 114TH CONGRESS 2D SESSION H. R. ll To amend title 17, United States Code, to establish an alternative dispute resolution program for copyright small claims, and for other purposes. IN THE HOUSE OF REPRESENTATIVES Mr. JEFFRIES (for himself and [see ATTACHED LIST of cosponsors]) introduced the following bill; which was referred to the Committee on lllllllllllllll A BILL To amend title 17, United States Code, to establish an alternative dispute resolution program for copyright small claims, and for other purposes. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 4 SECTION 1. SHORT TITLE. This Act may be cited as the ‘‘Copyright Alternative 5 in Small-Claims Enforcement Act of 2016’’ or ‘‘CASE Act 6 of 2016’’. f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 2 1 2 SEC. 2. COPYRIGHT SMALL CLAIMS. (a) IN GENERAL.—Title 17, United States Code, is 3 amended by adding at the end the following new chapter: 4 ‘‘CHAPTER 14—COPYRIGHT SMALL 5 CLAIMS ‘‘Sec. ‘‘1401. ‘‘1402. ‘‘1403. ‘‘1404. ‘‘1405. ‘‘1406. ‘‘1407. ‘‘1408. ‘‘1409. ‘‘1410. ‘‘1411. Copyright Claims Board. Authority and responsibilities of the Copyright Claims Board. Nature of proceedings. Registration requirement. Conduct of proceedings. Effect of proceeding. Review and confirmation by district court. Relationship to other district court actions. Implementation by Copyright Office. Funding. Definitions. 6 ‘‘§ 1401. Copyright Claims Board 7 ‘‘(a) IN GENERAL.— There is hereby established in 8 the U.S. Copyright Office a copyright small claims pro9 gram (hereinafter referred to as the ‘Copyright Claims 10 Board’), which shall serve as an alternative forum in 11 which parties may voluntarily seek to resolve certain copy12 right claims, regarding any category of copyrighted work, 13 as further provided in this chapter. 14 ‘‘(b) OFFICERS AND STAFF.— 15 ‘‘(1) COPYRIGHT rec- 16 ommendation of the Register of Copyrights, who 17 shall identify qualified candidates, the Librarian of 18 Congress shall appoint 3 full-time Copyright Claims 19 Officers to serve on the Copyright Claims Board. f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 CLAIMS OFFICERS.—Upon 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 3 1 ‘‘(2) COPYRIGHT ATTORNEYS.—The 2 Register of Copyrights shall hire no fewer than 2 3 full-time Copyright Claims Attorneys to assist in the 4 administration of the Copyright Claims Board. 5 ‘‘(3) QUALIFICATIONS.— 6 ‘‘(A) COPYRIGHT CLAIMS OFFICERS.— 7 Each Copyright Claims Officer shall be an at- 8 torney with no less than 7 years of legal experi- 9 ence. Two of the Copyright Claims Officers 10 shall have substantial experience in the evalua- 11 tion, litigation, or adjudication of copyright in- 12 fringement claims and, between them, shall 13 have represented or presided over a diversity of 14 copyright interests, including those of both own- 15 ers and users of copyrighted works. The third 16 Copyright Claims Officer shall have substantial 17 familiarity with copyright law and experience in 18 the field of alternative dispute resolution, in- 19 cluding the resolution of litigation matters 20 through such means. 21 ‘‘(B) COPYRIGHT CLAIMS ATTORNEYS.— 22 Each Copyright Claims Attorney shall be an at- 23 torney with no less than 3 years of substantial 24 experience in copyright law. f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 CLAIMS 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 4 1 ‘‘(4) COMPENSATION.—Each Copyright Claims 2 Officer shall be compensated at not less than the 3 minimum and not more than the maximum rate of 4 pay for SL employees (or the equivalent) of the Fed- 5 eral Government, including locality pay, as applica- 6 ble. Each Copyright Claims Attorney shall be com- 7 pensated at not more than the maximum permissible 8 pay for level 10 of GS–15 of the General Schedule 9 (or the equivalent), including locality pay, as appli- 10 cable. 11 ‘‘(5) TERM.—Copyright Claims Officers shall 12 serve for 6-year terms that are renewable by the Li- 13 brarian of Congress upon recommendation of the 14 Register of Copyrights: Provided, however, That the 15 terms for the initial Copyright Claims Officers ap- 16 pointed hereunder shall be as follows: one Copyright 17 Claims Officer shall be appointed for 4 years, the 18 second shall be appointed for 5 years; and the third 19 shall be appointed for 6 years. 20 ‘‘(6) VACANCIES 21 ‘‘(A) VACANCY.—If a vacancy shall occur 22 in the position of Copyright Claims Officer, the 23 Librarian of Congress shall, upon recommenda- 24 tion of the Register of Copyrights, who shall 25 identify qualified candidates, act expeditiously f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 AND INCAPACITY.— 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 5 1 to appoint a Copyright Claims Officer for that 2 position. An individual appointed to fill a va- 3 cancy occurring before the expiration of the 4 term for which his or her predecessor was ap- 5 pointed shall be appointed to serve for a 6-year 6 term. 7 ‘‘(B) INCAPACITY.—If a Copyright Claims 8 Officer is temporarily unable to perform his or 9 her duties, the Librarian of Congress shall, 10 upon recommendation of the Register of Copy- 11 rights, who shall identify qualified candidates, 12 act expeditiously to appoint an interim Copy- 13 right Claims Officer to perform such duties 14 during the period of such incapacity. 15 ‘‘(7) SUPERVISION to 16 section 1402(b), the Copyright Claims Officers shall 17 be supervised and removable by the Librarian of 18 Congress. 19 ‘‘(8) ADMINISTRATIVE SUPPORT.—The Register 20 of Copyrights shall provide the Copyright Claims Of- 21 ficers and Copyright Claims Attorneys with nec- 22 essary administrative support, including techno- 23 logical facilities, to carry out their duties under this 24 chapter. f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 AND REMOVAL.—Subject 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 6 1 ‘‘(9) 2 BOARD.—The 3 Claims Officers and Copyright Claims Attorneys 4 shall be located at the Copyright Office. LOCATION OF COPYRIGHT CLAIMS offices and facilities of the Copyright 5 ‘‘§ 1402. Authority and responsibilities of the Copy6 7 right Claims Board ‘‘(a) FUNCTIONS.— 8 ‘‘(1) COPYRIGHT 9 to the provisions of this chapter and applicable regu- 10 lations, the functions of the Copyright Claims Offi- 11 cers shall be as follows: 12 ‘‘(A) To render determinations on such 13 civil copyright claims, counterclaims, and de- 14 fenses as are permitted to be brought before 15 them under this chapter. 16 ‘‘(B) To ensure that claims, counterclaims, 17 and defenses are properly asserted and other- 18 wise appropriate for resolution by the Copyright 19 Claims Board. 20 ‘‘(C) To manage the proceedings before 21 them and render rulings pertaining to the con- 22 sideration of claims, counterclaims, and de- 23 fenses, including scheduling, discovery, evi- 24 dentiary, and other matters. f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 CLAIMS OFFICERS.—Subject 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 7 1 ‘‘(D) To request the production of infor- 2 mation and documents relevant to the resolu- 3 tion of a claim, counterclaim, or defense from 4 participants in a proceeding and from non- 5 participants. 6 ‘‘(E) To conduct hearings and conferences. 7 ‘‘(F) To facilitate parties’ settlement of 8 claims and counterclaims. 9 ‘‘(G) To award monetary relief and also to 10 include in its determinations a requirement of 11 cessation or mitigation of infringing activity, in- 12 cluding takedown or destruction of infringing 13 materials, where the party to undertake such 14 measures has so agreed. 15 ‘‘(H) To provide information to the public 16 concerning the procedures and requirements of 17 the Copyright Claims Board. 18 ‘‘(I) To maintain records of the pro- 19 ceedings before them, certify official records of 20 such proceedings as needed, and make the 21 records in such proceedings available to the 22 public in accordance with law. 23 ‘‘(J) To carry out such other duties as are 24 prescribed in this chapter. f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 8 1 ‘‘(K) When not engaged in performing 2 their duties as prescribed in this chapter, to 3 perform such other duties as may be assigned 4 by the Register of Copyrights. 5 ‘‘(2) COPYRIGHT CLAIMS ATTORNEYS.—Subject 6 to the provisions of this chapter and applicable regu- 7 lations, the functions of the Copyright Claims Attor- 8 neys shall be as follows: 9 ‘‘(A) To provide assistance to the Copy- 10 right Claims Officers in the administration of 11 their duties under this chapter. 12 ‘‘(B) To provide assistance to members of 13 the public with respect to the procedures and 14 requirements of the Copyright Claims Board. 15 ‘‘(C) When not engaged in performing 16 their duties as prescribed in this chapter, to 17 perform such other duties as may be assigned 18 by the Register of Copyrights. 19 ‘‘(b) INDEPENDENCE IN DETERMINATIONS.—The 20 Copyright Claims Officers shall render their determina21 tions in individual proceedings independently on the basis 22 of the records in the proceedings before them and in ac23 cordance with the provisions of this title, judicial prece24 dent, and applicable regulations of the Register of Copy25 rights. The Copyright Claims Officers and Copyright f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 9 1 Claims Attorneys may consult with the Register of Copy2 rights on general issues of law, but, subject to section 3 1405(w), not with respect to the facts of any particular 4 matter pending before them or the application of law 5 thereto. Notwithstanding any other provision of law or any 6 regulation or policy of the Library of Congress or Register 7 of Copyrights, no performance appraisal of a Copyright 8 Claims Officer or Copyright Claims Attorney shall con9 sider the substantive result of any individual determina10 tion reached by the Copyright Claims Board as a basis 11 for appraisal except insofar as it may relate to any actual 12 or alleged violation of an ethical standard of conduct. 13 ‘‘(c) DIRECTION BY REGISTER.—Subject to sub- 14 section (b), the Copyright Claims Officers and Copyright 15 Claims Attorneys shall be generally directed in the admin16 istration of their duties by the Register of Copyrights. 17 ‘‘(d) INCONSISTENT DUTIES BARRED.—No Copy- 18 right Claims Officer or Copyright Claims Attorney may 19 undertake duties that conflict with his or her duties or 20 responsibilities in connection with the Copyright Claims 21 Board. 22 ‘‘(e) RECUSAL.—A Copyright Claims Officer or Copy- 23 right Claims Attorney shall recuse himself or herself from 24 participation in any proceeding with respect to which the 25 Copyright Claims Officer or Copyright Claims Attorney f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 10 1 has reason to believe that he or she has a conflict of inter2 est. 3 ‘‘(f) EX PARTE COMMUNICATIONS.—Except as may 4 otherwise be permitted by applicable law, any party to a 5 proceeding before the Copyright Claims Board shall re6 frain from ex parte communications with the Copyright 7 Claims Officers concerning the substance of any pro8 ceeding before the Copyright Claims Board. 9 ‘‘(g) JUDICIAL REVIEW.—Actions of the Copyright 10 Claims Officers and Register of Copyrights under this 11 chapter in connection with the rendering of individual de12 terminations are subject to judicial review as provided 13 under section 1407(c), and not under chapter 7 of title 14 5, United States Code. 15 ‘‘§ 1403. Nature of proceedings 16 ‘‘(a) VOLUNTARY PARTICIPATION.—Participation in 17 a Copyright Claims Board proceeding shall be on a vol18 untary basis in accordance with this chapter, and the right 19 of any party to instead pursue a claim, counterclaim or 20 defense in a United States district court or any other 21 court, and to seek a jury trial, shall be preserved. 22 ‘‘(b) STATUTE OF LIMITATIONS.— 23 ‘‘(1) IN proceeding shall be 24 maintained before the Copyright Claims Board un- 25 less it is commenced in accordance with section f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 GENERAL.—No 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 11 1 1405(e) before the Copyright Claims Board within 2 three years after the claim that is the basis for the 3 proceeding accrued. 4 ‘‘(2) TOLLING.—Subject to section 1406(a), a 5 proceeding commenced before the Copyright Claims 6 Board shall toll the time permitted under section 7 507(b) of this title for commencement of an action 8 on the same claim in a United States district court 9 during the time it remains pending. 10 ‘‘(c) PERMISSIBLE CLAIMS, COUNTERCLAIMS AND 11 DEFENSES.—The Copyright Claims Officers may render 12 determinations with respect to the following claims, coun13 terclaims and defenses, subject to such further limitations 14 and requirements, including with respect to particular 15 classes of works, as may be set forth in regulations estab16 lished by the Register of Copyrights: 17 ‘‘(1) A claim for infringement of an exclusive 18 right of copyright provided under section 106 of this 19 title, asserted by the legal or beneficial owner of 20 such exclusive right at the time of infringement pur- 21 suant to which the claimant seeks damages, if any, 22 within the limitations set forth in subsection (e)(1). 23 ‘‘(2) A claim for a declaration of noninfringe- 24 ment of an exclusive right of copyright provided 25 under section 106 of this title, where an actual con- f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 12 1 troversy exists as evidenced by a written communica- 2 tion indicating that legal action against the claimant 3 is imminent due to specifically alleged infringing 4 conduct. 5 ‘‘(3) Notwithstanding any other provision of 6 law, a claim pursuant to section 512(f) of this title 7 for misrepresentation in connection with a notifica- 8 tion of claimed infringement or a counter notifica- 9 tion seeking to replace removed or disabled material: 10 Provided, however, That any remedies in such a pro- 11 ceeding before the Copyright Claims Board shall be 12 limited to those available under this chapter. 13 ‘‘(4) A counterclaim asserted solely against the 14 claimant or claimants in a proceeding pursuant to 15 which the counterclaimant or counterclaimants seek 16 damages, if any, within the limitations set forth in 17 subsection (e)(1), and that— 18 ‘‘(A) arises under section 106 or section 19 512(f) of this title, and out of the same trans- 20 action or occurrence that is the subject of a 21 claim of infringement brought under paragraph 22 (1), a claim of noninfringement brought under 23 paragraph (2), or a claim of misrepresentation 24 brought under paragraph (3); or f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 13 1 ‘‘(B) arises under an agreement pertaining 2 to the same transaction or occurrence that is 3 the subject of a claim of infringement brought 4 under paragraph (1) and could affect the relief 5 awarded to the claimant. 6 ‘‘(5) A legal or equitable defense, pursuant to 7 this title or otherwise available under law, in re- 8 sponse to a claim or counterclaim asserted under 9 this subsection. 10 ‘‘(6) A single claim or multiple claims permitted 11 under paragraphs (1), (2), or (3) by one or more 12 claimants against one or more respondents: Pro- 13 vided, however, That all claims asserted in any one 14 proceeding arise out of the same allegedly infringing 15 activity or continuous course of infringing activities 16 and do not in the aggregate result in a claim for 17 damages in excess of the limitation provided in sub- 18 section (e)(1)(D). 19 ‘‘(d) EXCLUDED CLAIMS.—The following claims and 20 counterclaims are not subject to determination by the 21 Copyright Claims Board: 22 ‘‘(1) A claim or counterclaim that is not a per- 23 missible claim or counterclaim under subsection (c). 24 ‘‘(2) A claim or counterclaim that has been fi- 25 nally adjudicated by a court of competent jurisdic- f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 14 1 tion or that is already pending before a court of 2 competent jurisdiction, unless such court has issued 3 a stay to permit such claim or counterclaim to pro- 4 ceed before the Copyright Claims Board. 5 6 ‘‘(3) A claim or counterclaim by or against a Federal or State government entity. 7 ‘‘(4) A claim or counterclaim asserted against a 8 person or entity residing outside of the United 9 States. 10 ‘‘(5) A claim or counterclaim dismissed by the 11 Copyright 12 1405(f)(3). 13 ‘‘(e) PERMISSIBLE REMEDIES.— 14 ‘‘(1) MONETARY 15 Board pursuant to section RECOVERY.— ‘‘(A) ACTUAL DAMAGES, PROFITS, AND 16 LIMITED STATUTORY DAMAGES.—Subject 17 limitation on total monetary recovery set forth 18 in subparagraph (D), with respect to a claim or 19 counterclaim for infringement of copyright, the 20 Copyright Claims Board may award— to the 21 ‘‘(i) actual damages and profits deter- 22 mined in accordance with section 504(b) of 23 this title, which determination shall include 24 in 25 whether the infringing party has agreed to f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 Claims 11:52 Jul 12, 2016 Jkt 000000 appropriate cases consideration of (630124 38) PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 15 1 cease or mitigate the infringing activity as 2 provided in paragraph (2); or 3 ‘‘(ii) limited statutory damages, which 4 shall be determined in accordance with sec- 5 tion 504(c) of this title, subject to the fol- 6 lowing conditions: 7 ‘‘(I) With respect to works timely 8 registered under section 412 of this 9 title, such that they are eligible for an 10 award of statutory damages under 11 that section, such limited statutory 12 damages shall not exceed $15,000 per 13 work infringed. 14 ‘‘(II) With respect to works not 15 timely registered under section 412 of 16 this title, but eligible for an award of 17 statutory damages under this section, 18 limited statutory damages shall not 19 exceed $7,500 per work infringed, or 20 a total of $15,000 in any one pro- 21 ceeding. 22 ‘‘(III) Copyright Claims 23 Board shall not make any finding or 24 consider whether the infringement was f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 The 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 16 1 committed willfully in making an 2 award of limited statutory damages. 3 ‘‘(IV) Copyright Claims 4 Board may consider as an additional 5 factor in awarding limited statutory 6 damages whether the infringer has 7 agreed to cease or mitigate the in- 8 fringing activity as provided in para- 9 graph (2). 10 ‘‘(B) ELECTION OF DAMAGES.—With re- 11 spect to a claim or counterclaim of infringe- 12 ment, the claimant or counterclaimant shall 13 after the close of discovery and in accordance 14 with the schedule established by the Copyright 15 Claims Board pursuant to section 1405(j) elect 16 to pursue either actual damages and profits or 17 limited statutory damages as provided in sub- 18 paragraph (A). 19 ‘‘(C) OTHER DAMAGES.—Damages for 20 claims and counterclaims other than infringe- 21 ment claims shall be awarded in accordance 22 with applicable law and shall be subject to the 23 limitation set forth in subparagraph (D). 24 ‘‘(D) LIMITATION 25 11:52 Jul 12, 2016 ON TOTAL MONETARY RECOVERY.—Notwithstanding f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 The Jkt 000000 any other provi- (630124 38) PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 17 1 sion of law, a party who pursues any one or 2 more claims or counterclaims in any single pro- 3 ceeding before the Copyright Claims Board may 4 not seek or recover in such proceeding a total 5 monetary recovery that exceeds the sum of 6 $30,000, exclusive of any attorneys’ fees and 7 costs that may be awarded under section 8 1405(x)(2). 9 ‘‘(2) AGREEMENT TO CEASE INFRINGING ACTIV- 10 ITY.—In 11 cease activity that is found to be infringing, includ- 12 ing removal or disabling of access to, or destruction 13 of, infringing materials, and such agreement is re- 14 flected in the record, the Copyright Claims Board 15 shall include in its determination a requirement that 16 such party cease his or her infringing conduct. 17 any proceeding where a party agrees to ‘‘(3) ATTORNEYS’ FEES AND COSTS.—Notwith- 18 standing any other provision of law, except in the 19 case of bad faith conduct as provided in section 20 1405(x)(2), the parties to proceedings before the 21 Copyright Claims Board shall bear their own attor- 22 neys’ fees and costs. 23 ‘‘(f) JOINT AND SEVERAL LIABILITY.—Parties to a 24 proceeding before the Copyright Claims Board may be 25 found jointly and severally liable if all such parties and f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 18 1 relevant claims or counterclaims arise from the same ac2 tivity or activities. 3 ‘‘§ 1404. Registration requirement 4 ‘‘(a) APPLICATION OR CERTIFICATE.—No claim or 5 counterclaim alleging infringement of an exclusive right 6 of copyright may be asserted before the Copyright Claims 7 Board unless the owner of the copyright has first delivered 8 a completed application, deposit and the required fee for 9 registration to the Copyright Office and either a registra10 tion certificate has been issued or has not been refused. 11 ‘‘(b) CERTIFICATE OF REGISTRATION.—Notwith- 12 standing any other provision of law, a claimant or 13 counterclaimant in a proceeding before the Copyright 14 Claims Board shall be eligible to recover actual damages 15 and profits or limited statutory damages for infringement 16 of a work under this chapter if the requirements of sub17 section (a) have been met: Provided, however, That— 18 ‘‘(1) the Copyright Claims Board shall not 19 render a determination in the proceeding until a reg- 20 istration certificate has been issued by the Copyright 21 Office, submitted to the Copyright Claims Board 22 and made available to the other parties to the pro- 23 ceeding, and the other parties have been provided an 24 opportunity to address it; f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 19 1 ‘‘(2) if a proceeding cannot proceed further due 2 to an outstanding registration certificate for the 3 work, it shall be held in abeyance pending submis- 4 sion of the certificate to the Copyright Claims 5 Board; but if held in abeyance for more than one 6 year, the Copyright Claims Board may, upon pro- 7 viding written notice to the parties and 30 days to 8 respond, dismiss the proceeding without prejudice; 9 and 10 ‘‘(3) if the Copyright Claims Board receives no- 11 tice that registration has been refused by the Copy- 12 right Office, the proceeding shall be dismissed with- 13 out prejudice. 14 ‘‘(c) PRESUMPTION.—Where a certificate shows that 15 registration of a work was made before or within 5 years 16 of its first publication, the presumption set forth in section 17 410(c) of this title shall apply in a proceeding before the 18 Copyright Claims Board, in addition to relevant principles 19 of law under this title. 20 ‘‘§ 1405. Conduct of proceedings 21 ‘‘(a) IN GENERAL.—Proceedings of the Copyright 22 Claims Board shall be conducted in accordance with this 23 chapter and regulations as implemented by the Register 24 of Copyrights, in addition to relevant principles of law 25 under this title. To the extent it appears there may be f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 20 1 conflicting judicial precedent on an issue of substantive 2 copyright law that cannot be reconciled, the Copyright 3 Claims Board shall follow the law of the federal jurisdic4 tion where the action could have been brought if filed in 5 federal district court, or, if it could have been brought in 6 more than one jurisdiction, the jurisdiction that the Copy7 right Claims Board determines has the most significant 8 ties to the parties and conduct at issue.’’ 9 ‘‘(b) RECORD.—The Copyright Claims Board shall 10 maintain records documenting the proceedings before it. 11 ‘‘(c) CENTRALIZED PROCESS.—Proceedings before 12 the Copyright Claims Board shall be conducted at the of13 fices of the Copyright Claims Board without the require14 ment of in-person appearances by parties or others, and 15 shall take place by means of written submissions and hear16 ings and conferences accomplished via internet-based ap17 plications and other telecommunications facilities: Pro18 vided, however, That in cases where physical or other non19 testimonial evidence material to a proceeding cannot be 20 furnished to the Copyright Claims Board through avail21 able telecommunications facilities, the Copyright Claims 22 Board shall have the discretion to make alternative ar23 rangements for the submission of such evidence that do 24 not prejudice another party to the proceeding. f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 21 1 ‘‘(d) REPRESENTATION.—A party to a proceeding be- 2 fore the Copyright Claims Board may, but is not required 3 to be represented by— 4 ‘‘(1) an attorney; or 5 ‘‘(2) a law student who is qualified under appli- 6 cable law governing law students’ representation of 7 parties in legal proceedings and who provides such 8 representation on a pro bono basis. 9 ‘‘(e) COMMENCEMENT OF PROCEEDING.—To com- 10 mence a proceeding, a claimant shall, subject to such addi11 tional requirements as may be prescribed in regulations 12 established by the Register of Copyrights, file a claim with 13 the Copyright Claims Board, that— 14 15 ‘‘(1) includes a statement of material facts in support of the claim; 16 17 ‘‘(2) is certified in accordance with subsection (x)(1); 18 ‘‘(3) is accompanied by a filing fee in such 19 amount as may be prescribed in regulations estab- 20 lished by the Register of Copyrights, which amount 21 shall be at least $100, shall not exceed the cost of 22 filing an action in a United States district court, 23 and shall be established to further the goals of the 24 Copyright Claims Board. 25 ‘‘(f) REVIEW OF CLAIMS AND COUNTERCLAIMS.— f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 22 1 ‘‘(1) CLAIMS.—Upon filing, a claim shall be re- 2 viewed by a Copyright Claims Attorney to ensure 3 that it complies with applicable regulations and this 4 chapter, including the following: 5 ‘‘(A) If the claim is found to comply, the 6 claimant shall be so notified and instructed to 7 proceed with service of the claim as provided in 8 subsection (g). 9 ‘‘(B) If the claim is found not to comply, 10 the claimant shall be notified that the claim is 11 deficient and permitted to file an amended 12 claim within 30 days of the date of such notice 13 without the requirement of an additional filing 14 fee. If the claimant files a compliant claim with- 15 in that period, he or she shall be so notified and 16 instructed to proceed with service of the claim. 17 If the claim is refiled within the 30-day period 18 but still fails to comply, the claimant will again 19 be notified that the claim is deficient and pro- 20 vided a second opportunity to amend it within 21 30 days without the requirement of an addi- 22 tional filing fee. If the claim is refiled again 23 within the second 30-day period and is compli- 24 ant, the claimant shall be so notified and in- 25 structed to proceed with service, but if the f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 23 1 claim still fails to comply, upon confirmation of 2 its noncompliance by a Copyright Claims Offi- 3 cer, the proceeding shall be dismissed without 4 prejudice. The Copyright Claims Board shall 5 also dismiss without prejudice any proceeding 6 in which a compliant claim is not filed within 7 the applicable 30-day time period. 8 ‘‘(C) For purposes of this paragraph, a 9 claim against an online service provider for in- 10 fringement by reason of storage of or referral 11 or linking to infringing material that may be 12 subject to the limitations on liability set forth 13 in section 512(b), section 512(c) or section 14 512(d) of this title, shall be considered non- 15 compliant unless the claimant affirms in the 16 statement required under subsection (e)(1) of 17 this section that he or she has previously noti- 18 fied the service provider of the claimed infringe- 19 ment in accordance with section 512(b)(2)(E), 20 section 512(c)(3) or section 512(d)(3) of this 21 title, as applicable, and the service provider 22 failed to remove or disable access to the mate- 23 rial expeditiously upon the provision of such no- 24 tice: Provided, however, That if a claim is found 25 to be noncompliant under this subparagraph, f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 24 1 the Copyright Claims Board shall provide the 2 claimant with information concerning the serv- 3 ice of such a notice pursuant to the relevant 4 provision of this title. 5 ‘‘(2) COUNTERCLAIMS.—Upon filing and service 6 of a counterclaim, the counterclaim shall be reviewed 7 by a Copyright Claims Attorney to ensure that it 8 complies with the provisions of this chapter and ap- 9 plicable regulations. If the counterclaim is found not 10 to comply, the counterclaimant and other parties 11 shall be notified that it is deficient and the 12 counterclaimant permitted to file and serve an 13 amended counterclaim within 30 days of the date of 14 such notice. If the counterclaimant files and serves 15 a compliant counterclaim within that period, the 16 counterclaimant and other parties shall be so noti- 17 fied. If the counterclaim is refiled and served within 18 the 30-day period but still fails to comply, the 19 counterclaimant and other parties will again be noti- 20 fied that it is deficient and the counterclaimant pro- 21 vided a second opportunity to amend it within 30 22 days. If the counterclaim is refiled and served again 23 within the second 30-day period and is compliant, 24 the counterclaimant and parties shall be so notified, 25 but if the counterclaim still fails to comply, upon f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 25 1 confirmation of its noncompliance by a Copyright 2 Claims Officer, the counterclaim, but not the pro- 3 ceeding, shall be dismissed without prejudice. 4 ‘‘(3) DISMISSAL FOR GOOD CAUSE.—The Copy- 5 right Claims Board shall dismiss a proceeding with- 6 out prejudice if, upon reviewing a claim or counter- 7 claim, or at any other time in a proceeding, the 8 Copyright Claims Board concludes that it is unsuit- 9 able for determination by the Copyright Claims 10 Board, including due to the following: 11 ‘‘(A) The failure to join a necessary party. 12 ‘‘(B) The lack of an essential witness, evi- 13 dence, or expert testimony. 14 ‘‘(C) Determination of a relevant issue of 15 law or fact that could exceed the competence of 16 the Copyright Claims Board. 17 ‘‘(g) SERVICE OF NOTICE AND CLAIMS.—To proceed 18 with a claim against a respondent, a claimant must within 19 90 days of receiving notification to proceed with service 20 file proof of service on the respondent with the Copyright 21 Claims Board. To effectuate service on a respondent, the 22 claimant must cause notice of the proceeding and a copy 23 of the claim to be served on the respondent, either by per24 sonal service or pursuant to a waiver of personal service, 25 as prescribed in regulations established by the Register of f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 26 1 Copyrights. Such regulations shall include the following 2 requirements and conditions: 3 ‘‘(1) The notice of the proceeding shall adhere 4 to a prescribed form and shall set forth the nature 5 of the Copyright Claims Board and proceeding, the 6 respondent’s right to opt out, and the consequences 7 of opting out and not opting out, including a promi- 8 nent statement that, by not opting out within the 9 30-day period, the respondent— 10 ‘‘(A) will forgo the opportunity to have the 11 dispute decided by a court created under article 12 III of the Constitution of the United States; 13 and 14 ‘‘(B) will be waiving the right to a jury 15 trial regarding the dispute. 16 ‘‘(2) The copy of the claim served on the re- 17 spondent shall be as it was filed with the Copyright 18 Claims Board. 19 ‘‘(3) Personal service of a notice and claim may 20 be effected by an individual who is not a party to 21 the proceeding and is over the age of 18. 22 23 ‘‘(4) An individual, other than a minor or incompetent individual, may be served by— 24 ‘‘(A) following State law for serving a sum- 25 mons in an action brought in courts of general f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 27 1 jurisdiction in the State where service is made; 2 or 3 ‘‘(B) doing any of the following: 4 ‘‘(i) Delivering a copy of the notice 5 and claim to the individual personally. 6 ‘‘(ii) Leaving a copy of each at the in- 7 dividual’s dwelling or usual place of abode 8 with someone of suitable age and discre- 9 tion who resides there. 10 ‘‘(iii) Delivering a copy of each to an 11 agent authorized by appointment or by law 12 to receive service of process. 13 ‘‘(5) A corporation, partnership or unincor- 14 porated association that is subject to suit in courts 15 of general jurisdiction under a common name may 16 be served by— 17 ‘‘(A) following State law for serving a sum- 18 mons in an action brought in courts of general 19 jurisdiction in the State where service is made; 20 or 21 ‘‘(B) delivering a copy of the notice and 22 claim to an officer, a managing or general 23 agent or any other agent authorized by appoint- 24 ment or by law to receive service of process in 25 an action brought in courts of general jurisdic- f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 28 1 tion and, if the agent is one authorized by stat- 2 ute and the statute so requires, by also mailing 3 a copy of each to the respondent. 4 ‘‘(6) To request a waiver of personal service, 5 the claimant may notify a respondent by first class 6 mail or other reasonable means that a proceeding 7 has been commenced in accordance with regulations 8 established by the Register of Copyrights, which 9 shall include the following: 10 ‘‘(A) Any such request shall be in writing 11 and addressed to the respondent, and be accom- 12 panied by a prescribed notice of the proceeding 13 and copy of the claim as filed with the Copy- 14 right Claims Board, as well as a prescribed 15 form for waiver of personal service, and a pre- 16 paid or costless means of returning the form. 17 ‘‘(B) The request shall state the date it 18 was sent and provide the respondent 30 days to 19 return the signed waiver form, which signed 20 waiver shall constitute acceptance and proof of 21 service as of the date it is signed for purposes 22 of this subsection. 23 ‘‘(7) A respondent’s waiver of personal service 24 shall not constitute a waiver of the respondent’s 25 right to opt out of the proceeding: Provided, however, f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 29 1 That a respondent who timely waives personal serv- 2 ice and does not opt out shall be allowed an addi- 3 tional 30 days beyond the amount of time normally 4 permitted under the applicable procedures of the 5 Copyright Claims Board to submit a substantive re- 6 sponse to the claim, including any defenses and 7 counterclaims. 8 ‘‘(8) A minor or an incompetent individual may 9 only be served by following State law for serving a 10 summons or like process on such an individual in an 11 action brought in the courts of general jurisdiction 12 of the State where service is made. 13 ‘‘(9) Service of a claim and waiver of personal 14 service may only be effected within the United 15 States. 16 ‘‘(h) OPT-OUT PROCEDURE.—Upon being properly 17 served with a notice and claim, a respondent who chooses 18 to opt out of the proceeding shall have 30 days from the 19 date of service in which to provide written notice of such 20 choice to the Copyright Claims Board, in accordance with 21 regulations established by the Register of Copyrights. If 22 proof of service has been filed by the claimant and the 23 respondent does not submit an opt-out notice to the Copy24 right Claims Board within 30 days of service, the pro25 ceeding shall be deemed an active proceeding and the re- f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 30 1 spondent shall be bound by the result to the extent pro2 vided under section 1406(a). If the respondent opts out 3 during that period, the proceeding shall be dismissed with4 out prejudice: Provided, however, That in exceptional cir5 cumstances and upon written notice to the claimant, the 6 Copyright Claims Board may extend such 30-day period 7 in the interests of justice. 8 ‘‘(i) SERVICE OF OTHER DOCUMENTS.—Other docu- 9 ments submitted or relied upon in the proceeding shall be 10 served as provided in regulations established by the Reg11 ister of Copyrights. 12 ‘‘(j) SCHEDULING.—Upon confirmation that a pro- 13 ceeding has become an active proceeding, the Copyright 14 Claims Board shall issue a schedule for future conduct of 15 the proceeding. A schedule issued by the Copyright Claims 16 Board may be amended by the Copyright Claims Board 17 in the interests of justice. 18 ‘‘(k) CONFERENCES.—One or more Copyright Claims 19 Officers may hold a conference to address case manage20 ment or discovery issues in a proceeding: Provided, how21 ever, That such conference shall not be addressed to ulti22 mate issues of fact or law. Any such conference shall be 23 noted upon the record of the proceeding and may be re24 corded or transcribed. f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 31 1 ‘‘(l) PARTY SUBMISSIONS.—There shall be no formal 2 motion practice in a Copyright Claims Board proceeding: 3 Provided, however, That, subject to applicable regulations 4 and the procedures of the Copyright Claims Board— 5 ‘‘(1) the parties to a proceeding shall be per- 6 mitted to make requests to the Copyright Claims 7 Board to address case management and discovery 8 matters, and submit responses thereto; and 9 ‘‘(2) the Copyright Claims Board may request 10 or permit parties to make submissions addressing 11 relevant questions of fact or law, or other matters, 12 including matters raised sua sponte by the Copy- 13 right Claims Officers, and offer responses thereto. 14 ‘‘(m) DISCOVERY.—Discovery shall be limited to the 15 production of relevant information and documents, written 16 interrogatories, and written requests for admission, as fur17 ther provided in regulations established by the Register 18 of Copyrights: Provided, however, That— 19 ‘‘(1) upon request of a party, and for good 20 cause shown, the Copyright Claims Board shall have 21 the discretion to approve additional limited discovery 22 in particular matters, and may request specific in- 23 formation and documents from participants in the 24 proceeding and voluntary submissions from non- 25 participants; f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 32 1 ‘‘(2) upon request of a party, and for good 2 cause shown, the Copyright Claims Board may issue 3 a protective order to limit the disclosure of docu- 4 ments or testimony that contain confidential infor- 5 mation; and 6 ‘‘(3) after providing notice and an opportunity 7 to respond, and upon good cause shown, the Copy- 8 right Claims Board may apply an adverse inference 9 with respect to disputed facts against a party who 10 has failed timely to provide discovery materials in 11 response to a proper request for materials that could 12 be relevant to such facts. 13 ‘‘(n) EVIDENCE.—The Copyright Claims Board may 14 consider the following types of evidence, which may be ad15 mitted without application of formal rules of evidence: 16 ‘‘(1) Documentary and other nontestimonial 17 evidence that is relevant to the claims, counterclaims 18 or defenses in a proceeding. 19 ‘‘(2) Testimonial evidence, submitted under 20 penalty of perjury in written form or in accordance 21 with subsection (o), limited to statements of the par- 22 ties and nonexpert witnesses, that is relevant to the 23 claims, counterclaims and defenses in a proceeding: 24 Provided, however, That in exceptional cases expert 25 witness testimony or other types of testimony may f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 33 1 be permitted by the Copyright Claims Board for 2 good cause shown. 3 ‘‘(o) HEARINGS.—The Copyright Claims Board may 4 conduct a hearing to receive oral presentations on issues 5 of fact or law from parties and witnesses to a proceeding, 6 including oral testimony: Provided, however, That— 7 8 ‘‘(1) any such hearing shall be attended by at least two of the Copyright Claims Officers; 9 ‘‘(2) the hearing shall be noted upon the record 10 of the proceeding and, subject to paragraph (3), may 11 be recorded or transcribed as deemed necessary by 12 the Copyright Claims Board; and 13 ‘‘(3) a recording or transcript of the hearing 14 shall be made available to a Copyright Claims Offi- 15 cer who is not in attendance. 16 ‘‘(p) VOLUNTARY DISMISSAL.— 17 ‘‘(1) BY written request of a 18 claimant received prior to a respondent’s filing of a 19 response to a claim, the Copyright Board shall dis- 20 miss the proceeding, or a claim or respondent, as re- 21 quested, such dismissal to be without prejudice. 22 ‘‘(2) BY COUNTERCLAIMANT.—Upon written re- 23 quest of a counterclaimant received prior to a claim- 24 ant’s filing of a response to a counterclaim, the f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 CLAIMANT.—Upon 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 34 1 Copyright Claims Board shall dismiss the counter- 2 claim, such dismissal to be without prejudice. 3 ‘‘(q) SETTLEMENT.—At any time in an active pro- 4 ceeding some or all of the parties may— 5 ‘‘(1) jointly request a conference with a Copy- 6 right Claims Officer for the purpose of facilitating 7 settlement discussions; or 8 ‘‘(2) submit to the Copyright Claims Board an 9 agreement providing for settlement and dismissal of 10 some or all of the claims and counterclaims in the 11 proceeding, which submission may also include a re- 12 quest that the Copyright Claims Board adopt some 13 or all of the terms of the parties’ settlement in a 14 final determination. 15 ‘‘(r) FACTUAL FINDINGS.—Subject to subsection 16 (m)(3), the Copyright Claims Board shall make factual 17 findings based upon a preponderance of the evidence. 18 ‘‘(s) DETERMINATIONS.— 19 ‘‘(1) NATURE determina- 20 tion rendered by the Copyright Claims Board in a 21 proceeding shall— 22 ‘‘(A) be reached by a majority of the Copy- 23 right Claims Board; f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 AND CONTENTS.—A 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 35 1 ‘‘(B) be in writing, and include an expla- 2 nation of the factual and legal basis of the deci- 3 sion therein; 4 ‘‘(C) pursuant to section 1403(e)(2), set 5 forth any terms by which a respondent or coun- 6 terclaim respondent has agreed to cease infring- 7 ing activity; 8 ‘‘(D) pursuant to subsection (q)(2) and to 9 the extent agreed by the parties, set forth the 10 terms of any settlement to the extent requested 11 by the parties; and 12 ‘‘(E) include a clear statement of all dam- 13 ages and other relief awarded, including pursu- 14 ant to subparagraphs (C) and (D). 15 ‘‘(2) DISSENT.—A Copyright Claims Officer 16 who dissents from a decision contained in a deter- 17 mination may append a statement setting forth the 18 grounds for his or her dissent. 19 ‘‘(3) PUBLICATION.—Final determinations of 20 the Copyright Claims Board shall be made available 21 on a publicly accessible website with other records to 22 be made available to the public in accordance with 23 law: Provided, however, That such records may be 24 redacted by the Copyright Claims Board to protect f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00035 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 36 1 confidential information that is the subject of a pro- 2 tective order under subsection (m)(2). 3 ‘‘(t) RESPONDENT’S DEFAULT.—Where a proceeding 4 has been deemed an active proceeding but the respondent 5 has failed to appear or has ceased participating in the pro6 ceeding, as demonstrated by his or her failure to meet one 7 or more deadlines or requirements set forth in the sched8 ule adopted by the Copyright Claims Board pursuant to 9 subsection (j) without justifiable cause, the Copyright 10 Claims Board may enter a default determination, includ11 ing the dismissal of any counterclaim asserted by a re12 spondent, as follows and in accordance with such other 13 requirements as the Register of Copyrights may prescribe 14 by regulation: 15 ‘‘(1) The Copyright Claims Board shall require 16 the claimant to submit relevant evidence and other 17 information in support of his or her claim and any 18 asserted damages and, upon review of such evidence 19 and any other requested submissions from the claim- 20 ant, shall determine whether the materials so sub- 21 mitted are sufficient to support a finding in favor of 22 the claimant under applicable law and, if so, the ap- 23 propriate relief and damages, if any, to be awarded. 24 ‘‘(2) If the claimant has met his or her burden 25 under paragraph (1), the Copyright Claims Board f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 37 1 shall prepare a proposed default determination and 2 provide written notice to the respondent at all ad- 3 dresses, including email addresses, reflected in the 4 records of the proceeding before the Copyright 5 Claims Board, concerning the pendency of a default 6 determination by the Copyright Claims Board and 7 the legal significance of such determination. Such 8 notice shall be accompanied by the proposed default 9 determination and provide that the respondent has 10 30 days from the date of the notice to submit any 11 evidence or other information in opposition to the 12 proposed default determination. 13 ‘‘(3) If the respondent responds to the notice 14 provided under paragraph (2) within the 30-day pe- 15 riod, the Copyright Claims Board shall consider re- 16 spondent’s submissions and, after allowing the other 17 parties to address such submissions, maintain or 18 amend its proposed determination as appropriate, 19 and the resulting determination shall not be a de- 20 fault determination. 21 ‘‘(4) If the respondent fails to respond to the 22 notice provided under paragraph (2), the Copyright 23 Claims Board shall proceed to issue the default de- 24 termination as a final determination. Thereafter, the 25 respondent may only challenge such determination to f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 38 1 the extent permitted under section 1407(c): Pro- 2 vided, however, That prior to the initiation of any 3 additional proceedings under section 1407, the 4 Copyright Claims Board shall have the discretion to 5 vacate the default determination in the interests of 6 justice. 7 ‘‘(u) CLAIMANT’S FAILURE TO PROCEED.— 8 ‘‘(1) FAILURE a 9 claimant fails to complete service on a respondent 10 within the 90-day period as prescribed in subsection 11 (g), that respondent shall be dismissed from the pro- 12 ceeding without prejudice; and if a claimant fails to 13 complete service on all respondents within the 90- 14 day period, the proceeding shall be dismissed by the 15 Copyright Claims Board without prejudice. 16 ‘‘(2) FAILURE TO PROSECUTE.—If a claimant 17 fails to proceed in an active proceeding, as dem- 18 onstrated by his or her failure to meet one or more 19 deadlines or requirements set forth in the schedule 20 adopted by the Copyright Claims Board pursuant to 21 subsection (j) without justifiable cause, the Copy- 22 right Claims Board may, upon providing written no- 23 tice to the claimant and 30 days to respond, issue 24 a determination dismissing the claimants’ claims, 25 which shall include an award of attorneys’ fees and f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 TO COMPLETE SERVICE.—If 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00038 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 39 1 costs if appropriate under subsection (x)(2). There- 2 after, the claimant may only challenge such deter- 3 mination to the extent permitted under section 4 1407(c): Provided, however, That prior to the initi- 5 ation of any additional proceedings under section 6 1407, the Copyright Claims Board shall have the 7 discretion to vacate the determination of dismissal in 8 the interests of justice. 9 ‘‘(v) RECONSIDERATION.—A party may, within 30 10 days of the date of issuance of a final determination by 11 the Copyright Claims Board, submit a written request for 12 reconsideration of, or an amendment to, such determina13 tion if the party identifies a clear error of law or fact ma14 terial to the outcome, or a technical mistake. After pro15 viding the other parties an opportunity to address such 16 request, the Copyright Claims Board shall respond by de17 nying the request or issuing an amended final determina18 tion. 19 ‘‘(w) REVIEW BY REGISTER.—A party who has been 20 denied reconsideration by the Copyright Claims Board 21 may, within 30 days of the date of such denial, request 22 review by the Register of Copyrights in accordance with 23 regulations established by the Register of Copyrights, 24 which regulations shall provide for a reasonable filing fee. 25 The Register’s review shall be limited to consideration of f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 40 1 whether the Copyright Claims Board abused its discretion 2 in denying reconsideration. After providing the other par3 ties an opportunity to address the request, the Register 4 shall respond by denying the request or remanding the 5 proceeding to the Copyright Claims Board for reconsider6 ation of identified issues and issuance of an amended final 7 determination, which amended final determination shall 8 not be subject to further consideration or review other 9 than pursuant to section 1407(c). 10 ‘‘(x) CONDUCT OF PARTIES AND ATTORNEYS.— 11 ‘‘(1) CERTIFICATION.—The Register of Copy- 12 rights shall establish regulations concerning certifi- 13 cation of the accuracy and truthfulness of state- 14 ments made by participants in proceedings before 15 the Copyright Claims Board. 16 ‘‘(2) BAD 17 any other provision of law, in any proceeding in 18 which a determination is rendered and— 19 ‘‘(A) it is established that a party pursued 20 a claim, counterclaim or defense for a harassing 21 or other improper purpose, or without reason- 22 able basis in law or fact; or 23 ‘‘(B) the claimant’s claim is dismissed for 24 failure to prosecute pursuant to subsection 25 (u)(2), f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 FAITH CONDUCT.—Notwithstanding 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00040 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 41 1 unless inconsistent with the interests of justice, the 2 Copyright Claims Board shall in such determination 3 award reasonable attorneys’ fees and costs to any 4 adversely affected party or parties in a total amount 5 not to exceed $5,000: Provided, however, That if an 6 adversely affected party appeared pro se in the pro- 7 ceeding, the award to that party shall be of costs 8 only and no more than $2,500. 9 ‘‘§ 1406. Effect of proceeding 10 ‘‘(a) DETERMINATION.—Subject to the reconsider- 11 ation and review processes afforded by section 1405(v) 12 and 1405(w), respectively, and section 1407(c), the ren13 dering of a final determination by the Copyright Claims 14 Board in a proceeding, including a default determination 15 or determination based on failure to prosecute, shall, solely 16 with respect to the parties to such determination, preclude 17 relitigation before any court or tribunal, or before the 18 Copyright Claims Board, of the claims and counterclaims 19 asserted and finally determined by such determination, 20 and may be relied upon for such purpose in a future action 21 or proceeding arising from the same specific activity or 22 activities: Provided, however, That— 23 ‘‘(1) a determination of the Copyright Claims 24 Board shall not preclude litigation or relitigation as 25 between the same or different parties before any f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 42 1 court or tribunal, or the Copyright Claims Board, of 2 the same or similar issues of fact or law in connec- 3 tion with claims or counterclaims not asserted and 4 finally determined by the determination of the Copy- 5 right Claims Board; 6 ‘‘(2) a determination of ownership of a copy- 7 righted work for purposes of resolving a matter be- 8 fore the Copyright Claims Board shall not be relied 9 upon, and shall have no preclusive effect, in any 10 other action or proceeding before any other court or 11 tribunal, including the Copyright Claims Board; and 12 ‘‘(3) except to the extent permitted in this sub- 13 section and section 1407, no determination of the 14 Copyright Claims Board shall be cited or relied upon 15 as legal precedent in any other action or proceeding 16 before any court or tribunal, including the Copyright 17 Claims Board. 18 ‘‘(b) OTHER MATERIALS IN PROCEEDING.—Except 19 as permitted under this section and section 1407, a sub20 mission or statement of a party or witness made in connec21 tion with a proceeding before the Copyright Claims Board, 22 including a proceeding that is dismissed, shall not be cited 23 or relied upon in, or serve as the basis of, any action or 24 proceeding concerning rights or limitations on rights f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00042 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 43 1 under this title before any court or tribunal, including the 2 Copyright Claims Board. 3 ‘‘(c) WITH RESPECT TO SECTION 512(g).—Notwith- 4 standing any other provision of law, the commencement 5 of a proceeding by a claimant before the Copyright Claims 6 Board against a subscriber of a service provider that seeks 7 a declaration of infringement concerning material that has 8 been removed or to which access has been disabled by the 9 service provider in response to a notification of claimed 10 infringement by the claimant pursuant to section 11 512(c)(1)(C) of this title shall be a basis to preclude the 12 replacement of such material by the service provider pur13 suant to section 512(g) of this title if notice of the com14 mencement of the Copyright Claims Board proceeding is 15 provided by the claimant to the service provider’s des16 ignated agent not less than 10 nor more than 14 business 17 days following receipt of a counter notification by the serv18 ice provider pursuant to section 512(g) of this title. 19 ‘‘(d) FAILURE TO ASSERT COUNTERCLAIM.—The 20 failure or inability to assert a counterclaim in a proceeding 21 before the Copyright Claims Board shall not preclude its 22 assertion in a subsequent court action or proceeding be23 fore the Copyright Claims Board. 24 ‘‘(e) OPT-OUT OR DISMISSAL OF PARTY.—If a party 25 has timely opted out of a proceeding under section f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 44 1 1405(h) or is dismissed from a proceeding prior to the 2 issuance of a final determination by the Copyright Claims 3 Board, the determination shall not be binding upon and 4 shall have no preclusive effect with respect to that party. 5 ‘‘§ 1407. Review and confirmation by district court 6 ‘‘(a) IN GENERAL.—In any proceeding in which a 7 party has failed to pay monies as required or otherwise 8 comply with the relief awarded in a final determination 9 of the Copyright Claims Board, including a default deter10 mination or a determination based on failure to prosecute, 11 the aggrieved party may, within one year of the issuance 12 of such final determination, resolution of any reconsider13 ation by the Copyright Claims Board or review by the Reg14 ister of Copyrights, or issuance of an amended final deter15 mination, whichever occurs last, apply to the United 16 States District Court for the District of Columbia for an 17 order confirming the final relief awarded and reducing 18 such award to judgment. The court shall grant such order 19 and direct entry of judgment unless the determination is 20 or has been vacated, modified or corrected as permitted 21 under subsection (c). 22 ‘‘(b) FILING PROCEDURES.— 23 ‘‘(1) Notice of the application for confirmation 24 of a determination of the Copyright Claims Board 25 and entry of judgment shall be provided to all par- f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00044 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 45 1 ties to the proceeding before the Copyright Claims 2 Board, in accordance with the procedures applicable 3 to service of a motion in United States District 4 Court for the District of Columbia. 5 ‘‘(2) The application shall include a certified 6 copy of the final or amended final determination of 7 the Copyright Claims Board, as reflected in the 8 records of the Copyright Claims Board, following 9 any process of reconsideration or review by the Reg- 10 ister of Copyrights, to be confirmed and rendered to 11 judgment, as well as a declaration by the applicant 12 under penalty of perjury that it is a true and correct 13 copy of such determination, the date it was issued, 14 and whether the applicant is aware of any other pro- 15 ceedings before the United States District Court 16 concerning the same determination of the Copyright 17 Claims Board. 18 ‘‘(c) CHALLENGES TO THE DETERMINATION.— 19 ‘‘(1) BASES applica- 20 tion of a party to the Copyright Claims Board pro- 21 ceeding within 90 days of the issuance of a final or 22 amended final determination by the Copyright 23 Claims Board following any process of reconsider- 24 ation or review by the Register of Copyrights, the 25 United States District Court for the District of Co- f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 FOR CHALLENGE.—Upon 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00045 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 46 1 lumbia may issue an order vacating, modifying or 2 correcting a determination of the Copyright Claims 3 Board in the following cases: 4 ‘‘(A) Where the determination was issued 5 or as a result of fraud, corruption, misrepresen- 6 tation, or other misconduct. 7 ‘‘(B) Where the Copyright Claims Board 8 exceeded its authority or failed to render a final 9 and definite determination concerning the sub- 10 ject matter at issue. 11 ‘‘(C) In the case of a default determination 12 or determination based on failure to prosecute, 13 where it is established that the default or fail- 14 ure was due to excusable neglect. 15 ‘‘(2) PROCEDURE 16 ‘‘(A) Notice of the application to challenge 17 a determination of the Copyright Claims Board 18 shall be provided to all parties to the proceeding 19 before the Copyright Claims Board, in accord- 20 ance with the procedures applicable to service of 21 a motion in United States District Court for 22 the District of Columbia. 23 ‘‘(B) The application shall include a cer- 24 tified copy of the final or amended final deter- 25 mination, as reflected in the records of the f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 TO CHALLENGE.— 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 47 1 Copyright Claims Board following any process 2 of reconsideration or review by the Register of 3 Copyrights, that is the subject of the applica- 4 tion, as well as a declaration by the applicant 5 under penalty of perjury that it is a true and 6 correct copy of such determination, the date it 7 was issued, the basis for challenge under sub- 8 section (c)(1), and whether the applicant is 9 aware of any other proceedings before the 10 United States District Court concerning the 11 same determination of the Copyright Claims 12 Board. For the purposes of the application, any 13 judge who might make an order to stay the pro- 14 ceedings in an action brought in the same 15 court, may make an order, to be served with the 16 notice of application, staying proceedings to en- 17 force the award. 18 ‘‘§ 1408. Relationship to other district court actions 19 ‘‘(a) STAY OF DISTRICT COURT PROCEEDINGS.—A 20 United States district court shall order a stay of pro21 ceedings or such other relief as it deems appropriate with 22 respect to any claim brought before it that is already the 23 subject of a pending active proceeding before the Copy24 right Claims Board. f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 48 1 ‘‘(b) DISTRICT COURT COST AND FEE AWARDS.—In 2 any case before a United States district court in which 3 the court is considering whether to award costs or attor4 neys’ fees to a prevailing party pursuant to section 505 5 of this title, the district court may in its discretion take 6 into account, among other relevant factors, whether the 7 nonprevailing party had the option and could have chosen 8 to proceed before the Copyright Claims Board in lieu of 9 the district court. 10 11 ‘‘(c) ALTERNATIVE DISPUTE RESOLUTION PROCESS.—The Copyright Claims Board shall qualify as an al- 12 ternative dispute resolution process under section 651 of 13 title 28. 14 ‘‘§ 1409. Implementation by Copyright Office 15 ‘‘(a) REGULATIONS.— 16 ‘‘(1) IMPLEMENTATION Reg- 17 ister of Copyrights shall establish regulations to im- 18 plement the Copyright Claims Board as con- 19 templated by this chapter, including the establish- 20 ment of the fees prescribed by sections 1405(e)(3) 21 and 1405(w), which authority shall not limit the 22 Register’s more general authority to establish fees 23 for services in accordance with section 708 of this 24 title. All fees received by the Copyright Office in 25 connection with the activities under this chapter f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 GENERALLY.—The 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 49 1 shall be deposited by the Register and credited to 2 the appropriations for necessary expenses of the Of- 3 fice in accordance with section 708(d) of this title. 4 ‘‘(2) LIMITS ON MONETARY RELIEF.—The Reg- 5 ister may conduct a rulemaking to adjust the limits 6 on monetary recovery or attorneys’ fees and costs 7 that may be awarded under this chapter to further 8 the goals of the Copyright Claims Board: Provided, 9 however, That any resulting rule that makes such an 10 adjustment shall become effective at the end of a pe- 11 riod of 120 days after the rule is submitted to Con- 12 gress and only if Congress does not enact a law 13 within such 120-day period that provides in sub- 14 stance that Congress does not approve of the new 15 rule. 16 ‘‘(b) NECESSARY FACILITIES.—Subject to applicable 17 law, the Register of Copyrights may retain outside vendors 18 to establish internet-based, teleconferencing and other fa19 cilities required to operate the Copyright Claims Board. 20 ‘‘§ 1410. Funding 21 ‘‘There are authorized to be appropriated such sums 22 as may be necessary to pay the costs incurred by the Copy23 right Office under this chapter that are not covered by 24 fees collected for services rendered under this chapter, in- f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00049 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 50 1 cluding the costs of establishing and maintaining the 2 Copyright Claims Board and its facilities. 3 ‘‘§ 1411. Definitions 4 ‘‘As used in this chapter— 5 6 ‘‘(1) the term ‘party’ refers to both a party and the party’s attorney, as applicable; 7 ‘‘(2) the term ‘person’ (including ‘his’ and 8 ‘her’) refers to both an individual and an entity that 9 is amenable to legal process under applicable law; 10 and 11 ‘‘(3) the term ‘United States’ has the meaning 12 given in section 101 of this title.’’. 13 (b) CLERICAL AMENDMENT.—The table of chapters 14 for title 17, United States Code, is amended by adding 15 after the item relating to chapter 13 the following new 16 item: ‘‘14. Copyright Small Claims ................................................................... 1401’’. 17 18 SEC. 3. IMPLEMENTATION. The Copyright Claims Board shall begin operation no 19 later than one year after of the date of the enactment of 20 this Act. 21 22 SEC. 4. STUDY. Not later than 3 years after the issuance of the first 23 determination by the Copyright Claims Board, the Reg24 ister of Copyrights shall deliver a study to Congress that 25 addresses— f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00050 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML F:\M14\JEFFNY\JEFFNY_045.XML 51 1 2 (1) the use and efficacy of the Copyright Claims Board in resolving copyright claims; 3 (2) whether adjustments to the authority of the 4 Copyright Claims Board, including eligible claims 5 and works and applicable damages limitations, are 6 necessary or advisable; 7 (3) whether greater allowance should be made 8 to permit awards of attorneys’ fees and costs to pre- 9 vailing parties, including potential limitations on 10 such awards; 11 (4) potential mechanisms to assist copyright 12 owners with small claims in ascertaining the identity 13 and location of unknown online infringers; 14 (5) whether the Copyright Claims Board should 15 be expanded to offer mediation or other nonbinding 16 alternative dispute resolution services to interested 17 parties; and 18 (6) such other matters as the Register of Copy- 19 rights believes may be pertinent concerning the 20 Copyright Claims Board. 21 22 SEC. 5. SEVERABILITY. If any provision of this Act is declared unconstitu- 23 tional, the validity of the remainder of this Act shall not 24 be affected. f:\VHLC\071216\071216.042.xml July 12, 2016 (11:52 a.m.) VerDate 0ct 09 2002 11:52 Jul 12, 2016 Jkt 000000 (630124 38) PO 00000 Frm 00051 Fmt 6652 Sfmt 6201 C:\USERS\KRCOX\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\JEFFNY~1.XML