If you are served with an “initial notice” from a claimant notifying you that you are a respondent in a CCB proceeding, you will have sixty days to make an important decision: whether to participate or to opt out of the proceeding. You may opt out at any time during these sixty days and do not have to provide any reason for your decision. The CCB may extend the sixty days if it believes it would be fair and in the interests of the parties to do so. If you opt out, the CCB will dismiss the claim against you, but the claimant can still bring the same claim in federal court.
In addition to the notification you receive from the claimant, the CCB will send you a separate notification within the sixty-day window if you have not yet opted out. The purpose of this “second notice” is to make sure you have received a copy of the claim, notification of the opt-out period, and other important information.
If you decide not to opt out, including if you do not respond to the notices, the proceeding will become “active,” and the CCB will provide information about the next steps.
Please note that opting out of a CCB proceeding does not end the dispute between you and the claimant and does not affect either party’s legal rights.
There are several factors to consider when deciding whether to participate or opt out:
- The CCB is accessible to everyone, with or without an attorney. While you may choose to retain an attorney or law student to represent you before the CCB, the CCB process makes it much easier for parties to represent themselves if they prefer.
- CCB proceedings are streamlined, including limited discovery obligations. Unlike in federal court, parties in CCB proceedings are only required to exchange limited key documents and information, and any hearings or conferences would be held virtually using video conferencing. As a result, CCB proceedings will cost each party less and require less time and effort than a federal court lawsuit.
- Monetary damages are capped at $30,000. A party cannot bring a claim before the CCB seeking more than $30,000 in total damages. Within that limit, these damages could include either statutory damages (in specific dollar ranges set by the law), or actual damages and the infringer’s profits (calculated based on the factual evidence). In federal court, in contrast, actual damages are not capped, and statutory damages can reach $150,000 for each work if the infringement was knowing or deliberate. Because of these rules, in most cases, amounts the CCB would order respondents to pay successful claimants would be lower than those available in federal court.
- The CCB is a copyright-specific tribunal. If you have a legal dispute with the claimant that is unrelated to the copyright claim, you will not be able to assert it as a counterclaim in the CCB. You will need to bring any claims on noncopyright issues in federal or state court.
- Determinations by the CCB are generally binding. By agreeing to participate in CCB proceedings, both parties are subject to the CCB’s determination of their dispute. There are limited opportunities to seek reconsideration, review, or appeal of a final CCB determination.
- Claims that have been determined by the CCB cannot also be filed in federal court. If you decide to participate in a CCB proceeding, the same claim between the same parties cannot be brought in federal court. But if a respondent opts out or the claim is dismissed, the claimant may still file in federal court.
- Opting out does not necessarily end the dispute. If you decide to opt out, the claimant still has the option to sue you in federal court.
- The CCB may not be the best option for complex cases. If you believe that your defense will involve complicated facts or evidence beyond the limited key documents and information that is exchanged in CCB proceedings, CCB may not be the best option for you.
Waiver of Service
A claimant may give you a “Waiver of Service” form to fill out. By doing this, the claimant is asking you to agree to accept notice of the claim without going through a formal process of notifying you by hand delivery or email, called “service.” You are not required to agree to this, and it will not have any impact on your rights or your ability to opt out of the proceeding. The benefit of agreeing is that you will be given an extra thirty days to respond to the claim. If you agree, you should read the Waiver of Service form, sign it, and give it back to the claimant.
Responding to a Claim
If you do not opt out of a proceeding, the proceeding becomes “active,” and the CCB will issue a Scheduling Order setting forth the next steps and a timeline of key dates.
- Statement. The first step in the Scheduling Order is for you to file a statement in response to the claim, including any defenses and counterclaims. This response will be filed using a form provided by the CCB, which you can access in eCCB, the CCB’s electronic filing and case management system.
- Defenses. In addition to your statement about why the claimant is not entitled to relief, there are several legal defenses you may be able assert. The eCCB system provides fillable forms and step-by-step instructions to help create your response. The CCB will also provide a list of the most common defenses to copyright infringement, noninfringement, and misrepresentation claims, and you can select the ones that you believe apply to your situation.
Additional information about legal defenses will be available soon in the CCB Handbook.
As a respondent, you may also assert related claims against the other party (the claimant). These are called “counterclaims.” You must do so at the time you file your response.
The CCB will be able to consider the following:
- Counterclaims related to the same facts or circumstances that are the subject of the original claim;
- Counterclaims on a contract (such as a licensing agreement that permits respondent to use the disputed work) that affects the claimant’s asserted rights in the original claim; and
- All legal or equitable defenses under copyright law or otherwise available.
This means that you cannot add unrelated claims to an already existing CCB proceeding, even if they are against the same claimant. For instance, if a claimant is bringing a claim before the CCB regarding infringement of their photograph, “The Flowers,” and you want to bring your own claim before the CCB that the claimant infringed your unrelated song “New City Drive,” you will need to file your own separate claim.
The steps for preparing a counterclaim are similar to the steps for preparing a claim described on our claimant information page.
How We Will Communicate with You
The CCB will communicate with you through the eCCB portal (the CCB’s electronic filing and case management system). Any time the CCB issues an update or order or a party files a document in your proceeding, the eCCB system will email you a confirmation with a link to the update, order, or document
To learn more about eCCB please visit Start or Access a Claim.