Copyright

In 2020, Congress passed a law called the “Copyright Alternative in Small-Claims Enforcement Act of 2020,” known as the “CASE Act.” The CASE Act mandated the formation of the Copyright Claims Board (CCB), a tribunal operating through the U.S. Copyright Office. The CCB hears “small claims” copyright disputes involving not more than $30,000 in damages. The CCB provides a quicker and less expensive alternative to the federal court system for resolving copyright infringement claims.

A claim filed against you in the CCB means that a purported copyright owner is asserting that you have infringed their copyright through something you have uploaded, reproduced, published, created, distributed, performed, or displayed.

In most CCB cases, the person who initiates the case (the “claimant”) is claiming that the person receiving the notice (the “respondent”) infringed the claimant’s copyright. There are many ways in which members of the UA community use works protected by copyright in the course of teaching, learning, and research, and it is possible that someone will claim that one of these uses was an infringement and file a claim with the CCB.

The notice you receive signifies that the claimant has alleged copyright infringement, but the notice does not mean you have actually infringed or that the CCB will ultimately determine you have infringed.

Indeed, there are many reasons why your use of a copyrighted work may not be an infringement. For instance, there are key exceptions to copyright law that support teaching, scholarship, and research — most notably, fair use. These exceptions provide complete defenses to claims of infringement or, in some instances, permit a significant reduction of damages. Further, not everything is actually protected by copyright. Claimants may believe they hold copyright in materials that are not subject to copyright (e.g., because the materials reflect only facts or ideas) or are no longer protected by copyright (e.g., because the copyright in the materials has expired). Claimants may also believe that they hold copyright to materials for which copyright is actually held by a third party.

If you believe one of these situations applies to you — that is, that your use of the material is protected by an exception or that the allegations in the claim are not valid — you may wish to dispute the claim or opt out of the CCB proceeding entirely.

If someone makes a claim against you, you will receive two notices. The first notice will let you know about the claim and will be delivered by the party making the claim. The second notice is a reminder about the claim and will come from the CCB.

“Service of process” is the legal term for how a party bringing a claim or counterclaim provides notice to the other party that there is a pending claim against them. Under CCB rules and applicable law in Arizona, you can receive service in person or by postal mail, but not by email. If you’ve received a CCB notice solely by email, be careful. It is likely fake, and you should avoid providing personal information in response.

If you receive a properly-served notice, do not ignore it. If you ignore it and do nothing, the case will proceed in the CCB, and a default judgment can be entered against you. This means that the CCB can enter a judgment holding you responsible for all the damages claimed in the notice (up to $30,000), regardless of whether the assertions are true or whether you could have claimed any defenses.

To avoid a default judgment, you will need to respond in the time prescribed by the notice. You can choose to respond in one of two ways:

• Proceed within the CCB tribunal. If you proceed, the case will be heard by the CCB. The CCB predicts that most cases will be handled completely online, so you will not need to travel to Washington D.C. (where the U.S. Copyright Office is physically located). You will be bound by the CCB’s decision. If the claimant wins, you may have to pay up to $15,000 for each infringed work, with a maximum cap of $30,000. CCB determinations are final. There are only limited circumstances — such as fraud, corruption, and misrepresentation — when a CCB determination can be reviewed by a federal court or the Copyright Office.
• Opt out of the CCB proceeding. It’s important to understand that, if you opt out, the copyright claimant cannot restart the same claim against you in front of the CCB. So, if you opt out of the CCB, the claimant can either stop pursuing the matter entirely or decide to file suit against you in federal court (assuming they meet all of the federal court filing requirements). Federal court is more expensive and complex than the CCB’s small claims process, so many small claimants may not want to incur the expense or may feel that their allegations will not survive scrutiny in federal court. Also, UA employees likely have broader protections in federal court than in the CCB, so a timely opt-out may be a good option. If you receive notice of a claim, you have 60 days to opt out of the proceedings.

If you decide to opt out, you must mail the paper opt-out form provided with your notice, or complete an online opt-out form on the CCB website, within 60 days of service.

Note that if you decide to opt out, your decision applies only in response to that particular claim you received. As an individual (as opposed to certain organizations), you cannot opt out prospectively from all future CCB claims.

There are exemptions from CCB claims for some institutions and organizations. Federal and state governmental entities are exempt, Thus, CCB claims cannot be brought against state colleges and universities and their libraries. This exclusion should also extend to the employees (e.g., faculty, lecturers, librarians, etc.) of these institutions to the extent that any complained-of action by these institutional employees was done within the scope of their employment. Students and employees can be served with a CCB claim for actions performed beyond the scope of their employment.

If you are a UA student, staff, or faculty member and you receive a CCB notice related to work that you performed in the course of your employment at UA, please contact the UA Office of General Counsel.

• Copyright Claims Board
• Copyright Claims Board FAQs
• Copyright Claims Board Handbook

Our copyright librarian, Ellen Dubinsky, can also answer questions about how the law works, but cannot provide legal advice.