Title 37—Patents, Trademarks, and Copyrights--Volume 1
PART 232—CONDUCT OF PARTIES
§ 232.1   General.
(a) For purposes of this part, a participant includes all parties, including any legal counsel or other authorized representatives participating in CCB proceedings.
(b) All participants shall act with the utmost respect for others and shall behave ethically and truthfully in connection with all submissions and appearances before the Copyright Claims Board (Board).
§ 232.2   Representations to the Board.
By submitting materials or advocating positions before the Board, a participant certifies that to the best of the participant's knowledge, information, and belief, formed after a reasonable inquiry under the circumstances:
(a) It is not being presented for any improper purpose;
(b) Any legal contentions are made in good faith based on the participant's reasonable understanding of existing law;
(c) Any factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(d) Any denials of factual contentions have evidentiary support or, if specifically so identified, are reasonably based on belief or a lack of information.
§ 232.3   Bad-faith conduct.
(a) General. The Board shall award costs and attorneys' fees as part of a determination where it is established that a participant engaged in bad-faith conduct, unless such an award would be inconsistent with the interests of justice.
(b) Allegations of bad-faith conduct —(1) On the Board's initiative. On its own, and prior to a final determination, the Board may order a participant to show cause why certain conduct does not constitute bad-faith conduct. Within 14 days, the participant accused of bad-faith conduct shall file a response to this order, which shall follow the procedures set forth in § 220.5(a)(2).
(2) On a party's initiative. A party that in good faith believes that a participant has engaged in bad-faith conduct may file a request for a conference with the Board describing the alleged bad-faith conduct and attaching any relevant exhibits. Requests for a conference concerning allegations of bad-faith conduct and any responses thereto shall follow the procedures set forth in § 220.5(a)(2) of this subchapter.
(c) Establishing bad-faith conduct. After the response of an accused participant has been filed under paragraph (b) of this section, or the time to file such a response has passed, the Board shall either make a determination that no bad-faith conduct occurred or schedule a conference concerning the allegations.
(d) Determining the award. A determination as to any award of attorneys' fees and costs due to bad-faith conduct shall be made as part of the final determination. In determining whether to award attorneys' fees and costs due to bad-faith conduct, and the amount of any such award, the Board shall consider the requests and responses submitted, any arguments on the issue, and the accused participant's behavior in other Board proceedings. Such an award shall be limited to an amount of not more than $5,000, unless—
(1) The adversely affected party appeared pro se in the proceeding, in which case the award shall be limited to costs in an amount of not more than $2,500; or
(2) Extraordinary circumstances are present, such as a demonstrated pattern or practice of bad-faith conduct, in which case the Board may award costs and attorneys' fees in excess of the limitations in this section.
§ 232.4   Bar on initiating and participating in claims.
(a) General. A participant that has been found to have engaged in bad-faith conduct on more than one occasion within a 12-month period shall be subject to the penalties set forth in paragraph (d) of this section.
(b) Allegations of multiple instances of bad-faith conduct —(1) On the Board's initiative. On its own, and at any point during a proceeding, the Board may order a participant to show cause why certain conduct engaged in on more than one occasion within a 12-month period does not constitute a pattern of bad-faith conduct. Within 14 days, such participant shall file a response to this order, which shall follow the procedures set forth in § 220.5(a)(2) of this subchapter.
(2) On a party's initiative. A party that in good faith believes that a participant has engaged in bad-faith conduct before the Board on more than one occasion within a 12-month period may file a request for a conference with the Board at any point after a proceeding has been initiated. Such a request shall describe the alleged instances of bad-faith conduct, include the CCB case numbers for any other instances of bad-faith conduct if known, and attach any relevant exhibits. Such a request filed by a respondent before the time to opt out of the proceeding has expired shall not operate as a waiver of that respondent's right to opt out of the proceeding. Requests for a conference concerning allegations of a pattern of bad-faith conduct and any responses thereto shall follow the procedures set forth in § 220.5(a)(2) of this subchapter.
(c) Establishing a pattern of bad-faith conduct. After an accused participant's response has been filed under paragraph (b) of this section, or the time to file such a response has passed, the Board shall either make a determination that the participant has not engaged in bad-faith conduct before the Board on more than one occasion within a 12-month period, or shall schedule a conference concerning the allegations. An award of attorneys' fees or costs against an accused participant, pursuant to § 232.3, within the prior 12 months shall establish an instance of bad-faith conduct within the requisite time period. The Board may consider other evidence of bad-faith conduct by the accused participant that did not result in an award of attorneys' fees or costs pursuant to § 232.3, including but not limited to, claims that did not proceed because they were reviewed by a Copyright Claims Attorney and found to be noncompliant or where proceedings were initiated but the respondent opted out.
(d) Penalties. In determining whether to bar a participant from initiating claims or a legal counsel or authorized representative from participating on a party's behalf, the Board shall consider the requests and responses submitted by the parties, any arguments on the issue, and the accused participant's behavior in other Board proceedings. The Board shall issue its determination in writing. If the Board determines that the accused participant has engaged in bad-faith conduct on more than one occasion within a 12-month period, such determination shall include:
(1) A provision that the accused participant be barred from initiating a claim, or in the case of a legal counsel or authorized representative, barred from participating on a party's behalf, before the Board for a period of 12 months beginning on the date on which the Board makes such a finding;
(2) In the case of a pattern of bad-faith conduct by a party, dismissal without prejudice of any proceeding commenced by that claimant or respondent or by the legal counsel or authorized representative on behalf of a party that is still pending before the Board at the time the finding is made, except that an active proceeding shall be dismissed only if the respondent to that proceeding provides written consent to the dismissal; and
(3) In the case of a pattern of bad-faith conduct by a legal counsel or authorized representative, a provision that the representative be barred from representing any party before the Board for a period of 12 months beginning on the date on which the Board makes such a finding. In deciding whether the legal counsel or authorized representative shall be barred from representing other parties in already pending proceedings, the Board may take into account the hardship to the parties represented by the sanctioned representative. If a legal counsel or authorized representative is barred from further representing a party in a pending claim, the Board will consider requests from that party asking the Board to amend the scheduling order or issue a stay of the pending action to allow that party to find other representation. Whether to amend the scheduling order or issue a stay shall be at the Board's discretion.
§ 232.5   Legal counsel and authorized representative conduct.
(a) Notices of appearance. If a party elects to be represented by legal counsel or other authorized representative in a proceeding, such legal counsel or authorized representative, other than the legal counsel or authorized representative who filed the claim on the claimant's behalf, must file a request to link their eCCB user account to the case and to the party or parties in that case whom they represent. The legal counsel or authorized representative must make sure that their eCCB user account accurately contains the legal counsel's bar number in a State in which the legal counsel has been admitted to practice (if applicable), and the legal counsel or authorized representative's mailing address, email address, and telephone number. If a legal counsel or authorized representative wishes to withdraw its representation, the legal counsel or authorized representative must file a Request to Withdraw Representation.
(b) Bar admissions. A legal counsel must be a member in good standing of the bar of the highest court of a State, the District of Columbia, or any territory or commonwealth of the United States. A law student representative must qualify under regulations governing law student representation of a party set forth in part 234 of this subchapter. The legal counsel or authorized representative must file with the Board a written statement under penalty of perjury that the legal counsel or authorized representative is currently qualified and is authorized to represent the party on whose behalf the legal counsel or authorized representative appears.
(c) Disbarred legal counsel. Any legal counsel who has been disbarred by any Federal court, a court of any State, the District of Columbia, or any territory or commonwealth of the United States shall not be allowed to represent a party before the Board. If a legal counsel in any proceeding active or pending before the Board is disbarred, the legal counsel must report the disbarment to the Board and withdraw representation from any proceeding.
(d) Duties toward the Board and the parties. A legal counsel or authorized representative has a duty of candor and impartiality toward the Board, and a duty of fairness toward opposing parties. In assessing whether a legal counsel has breached its duties, the Board shall consider the rules of professional conduct of the District of Columbia and the State in which the legal counsel practices.
(e) Penalties for violation. Any legal counsel or authorized representative found to be in violation of any of the rules of conduct as set forth in this section, or who is otherwise found to be behaving unethically or inappropriately before the Board, may be barred from representing parties in proceedings before the Board for a period of twelve months.
§ 232.6   Representation of business entities.
For purposes of this part:
(a) Definition. A business entity is a corporation, limited liability company, partnership, sole proprietorship, or unincorporated association.
(b) Appearance of a business entity. A business entity may appear before the Copyright Claims Board (Board) through—
(1) A member in good standing of the bar of the highest court of a State, the District of Columbia, or any territory or commonwealth of the United States;
(2) A law student who meets the requirements set forth in 37 CFR 234.1;
(3) An owner, partner, officer, or member, of the business entity; or
(4) An authorized employee.
(c) Certification. Someone appearing before the Board in a proceeding to represent a business entity in that proceeding pursuant to paragraph (b)(3) or (4) of this section shall certify that they are an authorized agent of the business entity and may bind that entity in the proceeding pending before the Board. If the representative qualifies only as an authorized employee under paragraph (b)(4) of this section, then within 30 days of the authorized employee's initial appearance, the representative also must submit written authorization, signed by an owner, partner, officer, or member of the business entity under penalty of perjury, stating that the representative may bind that entity on matters pending before the Board. A valid certification under this subsection shall remain effective throughout the proceeding, so long as the representative continues to be authorized by the business entity.
(d) Subject to standards of professional conduct. Representatives of business entities who appear pursuant to paragraph (b)(3) or (4) of this section are equally subject to the standards of conduct as any other party representative.