CCB Proceeding Phases
A CCB proceeding becomes “active” after the claimant has filed proof of service with the CCB, and the respondent (the party defending against a claim) has not opted out within the required time (usually sixty days). Active proceedings have several phases. The timing of each phase will be determined by an order, called a “Scheduling Order,” that sets forth the next steps, deadlines, and key dates.
After a respondent has filed a response to the claim, the parties will exchange key documents and information related to the claims, defenses, and any counterclaims (a process called ”discovery”) before arguing their cases to the CCB. The CCB may choose to hold an initial conference with the parties to discuss the parties’ positions, whether a settlement is possible, and the discovery process.
During the various phases of a CCB proceeding, parties can engage in settlement discussions, request virtual conferences, bring violations of the rules to the CCB’s attention, and eventually receive a final determination.
“Discovery” is the process of sharing information with all parties about the evidence relevant to the proceeding. Such information may include documents or images, objects, or a party’s responses to formal questions.
Discovery enables each party to know what evidence the other parties may present during the proceeding. It can assist in determining the strength or weakness of their arguments and provide information to which only one party would otherwise have had access. For example, through discovery, a claimant may be able to learn how much profit the other party made from selling infringing articles in order to determine what damages to request.
The discovery process in a CCB proceeding is streamlined compared to that in federal court. The time period will be relatively brief, and the scope of discovery, which includes written questions (called “interrogatories”) and document requests, will be limited.
After the discovery phase, each party will present their claims or defenses to the CCB through written statements and supporting evidence. This will be part of the record that the Copyright Claims Officers will consider in making their determination.
Any party with a claim or counterclaim can submit a sworn statement on its own behalf or from witnesses, documents for the CCB to consider, and a statement setting forth its position on why it should win the case.
Hearings are possible, but may not be held in every CCB proceeding. When appropriate, the CCB may decide cases based only on the testimony, documents, and statements submitted after discovery. If the CCB conducts a hearing, it will be done by videoconference.
A conference is a conversation where the parties (and their legal representatives, if any) have a chance to discuss the claim with the Copyright Claims Officers. Conferences may be held by one or more Copyright Claims Officers and will be held virtually by videoconference or telephone to allow all parties to participate. Conversations between only one party to a proceeding and one or more Copyright Claims Officers (called “ex parte” conversations) are not allowed.
The CCB will encourage voluntary settlements (an agreement between the parties to resolve all or part of the dispute) of any claims or counterclaims. A settlement conference may be scheduled by the CCB on its own or at the joint request of the parties at any time. 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. In their request for a dismissal, the parties may also ask the CCB to include some or all of the settlement terms in the final determination.
If any party stops participating in an active CCB proceeding after the opt-out period, the CCB may enter a determination against it. This determination is referred to as a “failure to prosecute” if the claimant stops participating, and a “default” if the respondent stops participating.
The CCB may enter a default determination against a respondent who does not timely opt out and then either fails to participate in the proceeding at all, or stops participating at some point while the proceeding is active. This means the CCB will make a determination about the claim without having any statements or evidence from the respondent. This could happen if the respondent ignores communications from the CCB or fails to file required documents. It is not an automatic result, however; the claimant must still submit relevant evidence and other information in support of the claim and any asserted damages. The CCB will evaluate the evidence and determine whether the materials provided are sufficient to support a determination in the claimant’s favor. If so, it will provide written notice to the respondent at all known addresses, including email addresses, and give it thirty days to file a submission opposing a default determination. If the respondent replies, the CCB will consider all parties’ submissions and make a final determination. If the respondent fails to reply to the default notice, the CCB can proceed to issue a default determination.
If any party stops participating during an active proceeding, the CCB can also dismiss its counterclaims, if any, and order it to pay monetary damages based on evidence submitted by the party bringing the original claim.
The CCB is not required to issue a default determination, and may decline to do so in the interests of justice.
A claim against a respondent who has not been served may be dismissed. Once a proceeding becomes active, if a claimant or counterclaimant fails to meet a deadline or other requirement without a legitimate reason, the CCB may also dismiss the claim or counterclaim after providing written notice and thirty days to respond and correct the missed deadline.
After parties have submitted their written testimony and any hearings have been held, the CCB will issue its final determination. The determination will be in writing and include an explanation of the facts and laws that it relied on to make its determination. CCB determinations will include clear statements explaining any monetary damages awarded to a party as well as any additional terms that the parties have agreed to.
If the parties have reached an agreement to settle or dismiss some or all of the claims and counterclaims, and have requested that the CCB include them in its determination, the CCB will do so.
Review of a Final Determination
If a party is dissatisfied with the CCB’s final determination, there are several options for review, each subject to certain limitations.
After the CCB issues a final determination, each party has thirty days to submit a written request for the CCB to reconsider or modify its determination. The request must identify a clear error of law or material fact, or a technical mistake, or it will not be considered. The other parties will have the opportunity to respond to or oppose the request. The CCB will either deny the request or issue an amended final determination.
If the CCB denies a party’s request for reconsideration, that party has thirty days to request review of the final determination by the Register of Copyrights. The Register’s review is limited to considering whether the CCB abused its discretion in denying reconsideration. After the other parties have had an opportunity to address the request for review, the Register will either deny it or send the proceeding back to the CCB to reconsider specific issues or to issue a modified determination.
A party can seek a federal district court order canceling, modifying, or correcting a determination of the CCB only in the following circumstances:
- if the determination was issued as a result of fraud, corruption, misrepresentation, or other misconduct;
- if the CCB exceeded its authority or failed to render a final determination concerning the subject matter at issue; or
- in the case of a default determination, if the default or failure to participate was due to excusable neglect.
A party seeking such a federal court order must do so within ninety days after the later of these two dates:
- the date that the CCB issued a final or amended determination in a proceeding, or
- the date that the Register of Copyrights completed a review of the request for reconsideration.