§ 223.1 Respondent's opt-out. ( a ) *Effect of opt-out on particular proceeding.* A respondent may opt out of a proceeding before the Copyright Claims Board (Board) pursuant to 17 U.S.C. 1506(i) following the procedures set forth in this section. A respondent's opt-out shall result in the dismissal of the claim without prejudice.
( b ) *Content of opt-out notification.* The respondent's opt-out notification shall include— ( 1 ) The docket number assigned by the Board and contained in either the *initial notice* served by the claimant or the *second notice;*
( 2 ) The respondent's name;
( 3 ) The respondent's mailing address;
( 4 ) An affirmation that the respondent shall not appear before the Board with respect to the claim served by the claimant;
( 5 ) A certification under penalty of perjury that the individual completing the notification is the respondent identified in the claim served by the claimant or is the legal counsel or *authorized representative* of the respondent identified in the claim and has been directed and authorized by the respondent to opt out of the particular proceeding; and
( 6 ) The typed, printed, or handwritten signature of the respondent or its legal counsel or *authorized representative,* and, if the signature is handwritten, a typed or printed name.
( c ) *Process of opting out.* Upon being served with a notice and claim, a respondent may complete the opt-out process by— ( 1 ) Completing and submitting the Board's online opt-out notification form available through the Board's electronic filing system (eCCB) as identified in the *initial notice* and *second notice* and providing an email address for confirmation; or
( 2 ) Completing and submitting the paper opt-out notification form included with the *initial notice* and *second notice,* providing a mailing address or email address to receive confirmation, and delivering it to the Board, either by— ( i ) First-class mail, or other class of mail that is at least as expeditious, postage prepaid; or
( ii ) A third party commercial carrier, that guarantees delivery no later than two days from the day of deposit with the service.
( 3 ) An online or paper opt-out notification is not complete unless the confirmation code, provided with both the *initial notice* and *second notice,* is included in the submission.
( d ) *Effect of improper service.* If a respondent is improperly served under 37 CFR 222.5 and completes the opt-out process described in paragraph (c) of this section, a respondent's timely opt-out will still be effective and result in the dismissal of the claim without prejudice.
( e ) *Timing of opt out.* The respondent has 60 days from the date of service or waiver of service to provide notice of its opt-out election. When the last day of that period falls on a weekend or a Federal holiday, the ending date shall be extended to the next Federal work day. ( 1 ) When opting out via the online form under paragraph (c)(1) of this section, the respondent's opt-out notification must be submitted by 11:59 p.m. Eastern Time on the last day of the opt-out period.
( 2 ) When opting out under paragraph (c)(2) of this section, the respondent's opt-out notification must be postmarked, dispatched by a commercial carrier, courier, or messenger, or hand-delivered to the Office no later than the 60-day deadline.
( f ) *Extension of opt-out period.* The Board may extend the 60-day period to opt out in exceptional circumstances and in the interests of justice and upon written notice to the claimant. Either a respondent individually or the parties jointly may contact the Board through a Copyright Claims Attorney to request an extension of the opt-out period.
( g ) *Multiple respondents.* In claims involving multiple respondents, each respondent who elects to opt out must separately complete the opt-out process.
( h ) *Confirmation of opt-out.* When a respondent has completed the opt-out process, the Board shall notify all parties to the proceeding.
( i ) *Effect of opt out on refiled claims.* If the claimant attempts to refile a claim against the same respondent(s), covering in substance the same acts and the same theories of recovery after the respondent's initial opt-out notification, the Board shall apply the prior opt-out election and dismiss the claim unless the claimant can demonstrate that the respondent affirmatively has agreed to resubmission of the parties' dispute to the Board for resolution.
( j ) *Effect of opt-out on unrelated claims.* The respondent's opt-out for a particular claim shall not be construed as an opt-out for claims involving different acts or different theories of recovery.
[87 FR 17007, Mar. 25, 2022]