U.S. GOVERNMENT PUBLISHING OFFICE

33–419 WASHINGTON : 2018

COPYRIGHT ALTERNATIVE IN SMALL-CLAIMS 

ENFORCEMENT ACT OF 2017 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 27, 2018 

Serial No. 115–69 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 


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COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

DOUG COLLINS, Georgia 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

MARTHA ROBY, Alabama 

MATT GAETZ, Florida 

MIKE JOHNSON, Louisiana 

ANDY BIGGS, Arizona 

JOHN RUTHERFORD, Florida 

KAREN HANDEL, Georgia 

KEITH ROTHFUS, Pennsylvania 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia 

THEODORE E. DEUTCH, Florida 

LUIS V. GUTIE ́ RREZ, Illinois 

KAREN BASS, California 

CEDRIC L. RICHMOND, Louisiana 

HAKEEM S. JEFFRIES, New York 

DAVID CICILLINE, Rhode Island 

ERIC SWALWELL, California 

TED LIEU, California 

JAMIE RASKIN, Maryland 

PRAMILA JAYAPAL, Washington 

BRAD SCHNEIDER, Illinois 

VALDEZ VENITA ‘‘VAL’’ DEMINGS, Florida 

SHELLEY HUSBAND, Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 


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C O N T E N T S 

SEPTEMBER 27, 2018 

OPENING STATEMENTS 

PAGE 

The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the Judiciary ......................................................................................................................... 1 

The Honorable Jerrold Nadler, New York, Ranking Member, Committee on 

the Judiciary ......................................................................................................... 2 

BILL TEXT 

H.R. 3945, the ‘‘CASE Act of 2017’’ ........................................................................ V 

WITNESSES 

Mr. David Trust, Chief Executive Officer, Professional Photographers of 

America (PPA) 

Oral Statement ................................................................................................. 6 

Mr. Matthew Schruers, Vice President, Law and Policy, Computer and Communications Industry Association (CCIA) 

Oral Statement ................................................................................................. 8 

Ms. Jenna Close, Director of Photography, Buck the Cubicle 

Oral Statement ................................................................................................. 9 

Mr. Jonathan Berroya, Senior Vice President and General Counsel, Internet 

Association 

Oral Statement ................................................................................................. 11 

Mr. Keith Kupferschmid, Chief Executive Officer, Copyright Alliance 

Oral Statement ................................................................................................. 13 


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115TIICOKGRESS H R 3945 1ST SESSJO~ • • 

To amend title 17, United Rtates Code, to establish an altcmativc dispute 

resolution progrRm for eopyr:ight small daims, and for other purposes. 

IX THE HOUSE OF REPRESENTATIVES 

OcTOBER cl, 2017 

Mr. ,JEF!<'Rmf\ (for himself, Mr. :.\L\RI:->0, 1\Ir. COLLIXS of Georgia, Mr. RMITII 

of 'l'exas, l\ls. JliDY em· of California, aml l\lr. Tim LIEU of California) 

introrlueerl the follovoing bill; which was referred to the Committc·e on the 

,Judiciary 

A BILL 

To amend title 17, United States Code, to establish an 

alternative dispute resolution program for copyright 

small claims, and for other purposes. 

Be it enacted by the Senate and IIouse of Rep1·esenta2 tives of the Um:ted States of America in OongTess assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the "Copyright Alternative 

5 in Small-Claims l<Jnforcement Act of 2017" or the "CASE 

6 Actof2017". 

7 SEC. 2. COPYRIGHT SMALL CLAIMS. 

8 (a) Ix GEXI<JRAh-Title 17, United States Code, is 

9 amended by adding at the end the following new ehapter: 
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2 

"CHAPTER 14-COPYRIGHT SMALL 

CLAIMS 

"Sec. 

"1401. Cop}~·ig:ht ClRims Board. 

"1402. :l.uthorit~· and responsibilities of the Copyright Claims Board. 

"1403. :Xab1rc of proc<>eding!l. 

"1404. &gistration requir<>nwut. 

"1405. Coudw•t of proeeNlingll. 

"1406. Effeet of proceeding. 

''1407. R1'Yiew and eonflrmation b? <listri<•t eourt. 

"1408. Rdationship to other distriet eourt aetious. 

"1409. lmplcmmtation b~· Cop~Tight Offiee. 

"1410. Funding. 

"1411. Definitions. 

3 "§ 1401. Copyright Claims Board 

4 "(a) IK GEKJ•JI~'I.L.-There is hereby established in 

5 the U.S. Copyright Office a copyright small claims pro6 gram (hereinafter referred to as the 'Copyright Claims 

7 Board'), which shall serve as an alternative forum in 

8 which pmi:ies may voluntarily seek to resolve certain copy9 right daims, regarding any category of copyrighted work, 

10 as further provided in this chapter. 

11 "(b) 0FFICEHS A.'m 8TAF'P.-

12 "(1) COPYRIGII'r CLAIMS OFFICEHS.-Upon ree13 ommendation of the Register of Copyrights, who 

14 shall identity qualified candidates, the Librarian of 

15 Congress shall appoint 3 full-time Copyrig·ht Claims 

16 Officers to serve on the Cop:yrig'ht Claims Board. 

17 "(2) COPYRIGHT CLAI::.VIS ATTOI{:XEYS.-The 

18 Hegister of Cop;yTights shall hire 110 fewer than 2 

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full-time Copyrig-ht Claims Attorneys to assist in the 

2 administration of the Copyright Claims Board. 

3 "(3) QrALH'ICATIOXS.-

4 "(A) COPYRIGII'r CLAIMS OFFICERS.-

5 Each Copyright Claims Officer shall be an at6 torney with no less than 7 years of legal e:li."Veri7 ence. Two of the Cop)Tight Claims Officers 

8 shall haYe substantial experience in the evalua9 tion, litigation, or adjudication of copyright in10 fringement daims and, between them, shall 

11 have represented or presided oyer a diversity of 

12 copyright interests, including those of both own13 ers and users of copyrighted works. The third 

14 Copyright Claims Officer shall have substantial 

15 familiarity with copyright law and experience in 

16 the field of altemative dispute resolution, in17 eluding the resolution of litigation matters 

18 through such means. 

19 "(B) COPYRIGII'l' CLAIMS A'l"l'ORXEYH.-

20 Each Cop)Tight Claims Attorney shall be an at21 torney with no less than 3 years of substantial 

22 experiem~e in c~opyright law. 

23 "( 4) CoMPE~SATIO~.-Each Copyright Claims 

24 Officer shall be compensated at not less than the 

25 minimum and not more than the maximum rate of 

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1 pay for SL employees (or the equivalent) of the Fed2 eral Government, including locality pay, as applica3 ble. Each Copyright Claims Attorney shall be com4 pensated at not more than the maximum permissible 

5 pay for level 10 of GS-15 of the General Schedule 

6 (or the equiYalent), including locality pay, as appli7 cable. 

8 "(5) TEH:II.-Copyright Claims Officers shall 

9 serve for 6-year terms that are renewable by the Li1 0 brarian of Congress uport recommendation of the 

11 Register of Cop:yrights: Provided, however·, 'fhat the 

12 terms for the initial Copyright Claims Officers ap13 pointed hereunder shall be as follows: one Copyright 

14 Claims Officer shall be appointed for 4 years, the 

15 second shall be appointed for 5 years, and the third 

16 shall be appointed for 6 years. 

17 "(6) VACAXCIER A.'\D T~CAPACITY.-

18 "(A) VACAXCY.-If a vacancy shall occur 

19 in the position of Copyright Claims Offieer, the 

20 l .. ibrarian of Congress shall, upon recommenda21 tion of the Register of Copyrights, who shall 

22 identifY qualified eandidates, act expeditiously 

23 to appoint a Copyright Claims Officer for that 

24 position. An individual appointed to fill a va25 caney oeeurring before the expiration of the 

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term for which his or her prede(~essor was ap2 pointed shall be appointed to serve for a 6-year 

3 term. 

4 "(B) IXC'APAC'TTY.-If a Copyright Claims 

5 Officer is temporarily unable to perform his or 

6 her duties, the Librarian of Congress shall, 

7 upon recommendation of the Register of Copy8 rights, who shall identify qualified candidates, 

9 act expeditiously to appoint an interim Copy1 0 right Claims Offieer to perform sueh duties 

11 during the period of such incapacity. 

12 "(7) SUPERVISI0:'\1" A '\D .. RE.:.VIOV~\I_,.-Sul1ject to 

13 section 1402(b), the Cop_\Tight Claims Officers shall 

14 be supervised and removable by the Librarian of 

15 Congress. 

16 "(8) Amii:'-JISTHATIV'E SUPPOHT.-The Register 

17 of Copyrights shall provide the Copyright Claims Of18 ficcrs and Copyright Claims Attorneys with nec19 essary administrative support, ineluding teehno20 logical facilities, to carry out their duties under this 

21 chapter. 

22 "(9) lJOCATIOX 01<' l'OPYRIGIIT CLAIMS 

23 BOARD.-The offices and facilities of the Copyright 

24 Claims Officers and Copyright Claims Attorneys 

25 shall be located at the Copyright Office. 

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1 "§ 1402. Authority and responsibilities of the Copy2 right Claims Board 

3 "(a) Pul'\CTIOKS.-

4 "(1) COPYRIGHT Cl,.A.L\IS OPFICERS.-Subject 

5 to the provisions of this (•.hapter and applicable regu6 lations, the functions of the Copyright Claims Offi7 cers shall be as follows: 

8 "(A) To render determinations on sueh 

9 civil copyright claims, counterclaims, and del 0 fenscs as are permitted to be brought before 

11 them under this chapter. 

12 "(B) To ensure that claims, counterclaims, 

13 and defenses arc properly asserted and other14 wise appropriate for resolution by the Copyright 

15 Claims Board. 

16 "(C) To manage the proceedings before 

17 them and render rulings pertaining to the con18 sideration of claims, counterclaims, and de19 fenses, including scheduling, discovery, evi20 dcntiary, and other matters. 

21 "(D) To request the production of infor22 mation and documents relevant to the resolu23 tion of a claim, counterclaim, or defense from 

24 participants in a proceeding and from non25 participants. 

26 "(E) To conduct hearings and conferences. 

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1 "(F) To facilitate parties' settlement of 

2 claims and counterclaims. 

3 " (G) To award monetary relief and also to 

4 inelude in its determinations a requirement of 

5 cessation or mitigation of infringing activity, in6 eluding takedown or destruction of infringing 

7 materials, where the party to undertake such 

8 measures has so agreed. 

9 "(H) To provide information to the public 

10 concerning the procedures and requirements of 

11 the Copyright Claims Board. 

12 "(I) To maintain records of the pro13 eeedings before them, certifY official records of 

14 such proceedings as needed, and make the 

15 records in such proceedings available to the 

16 public in accordance with law. 

17 " ( J) To carry out such other duties as are 

18 prescribed in this chapter. 

19 "(K) When not engaged m performing 

20 their duties as prescribed in this chapter, to 

21 perform such other duties as may be assigned 

22 by the Register of Copyrights. 

23 "(2) COPYRIGHT CLAIMS ATTORXEYS.-Subject 

24 to the provisions of this chapter and applicable regu-

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lations, the funetions of the Copy-right Claims Attor2 neys shall be as follows: 

3 "(A) To provide assistance to the Copy4 right Clairns Officers in the administration of 

5 their duties under this chapter. 

6 "(B) To provide assistance to members of 

7 the public with respect to the procedures and 

8 requirements of the CopyTight Claims Board. 

9 "(C) When not engaged in performing 

10 their duties as prescribed in this chapter, to 

11 perform such other duties as may be assigned 

12 by the Hegister of Cop_yTights. 

13 "(b) lXDEPE='l"DFJXCE IX DETFJRMIXATIOXS.-The 

14 Copyright Claims Officers shall render their determina15 tions in individual proceedings independently on the basis 

16 of the reeords in the proeeedings before them and in ae17 cordance with the prmisions of tllis title, judicial prece18 dent, and applicable regulations of the Register of Copy19 rights. The Cop_Hight Claims Officer;;; and Copyright 

20 Claims Attorneys may consult with the Register of Copy21 rights on general issues of law, but, subject to seetion 

22 1405(w), not with respect to the facts of any parti<·ular 

23 matter pending before them or the application of law 

24 thereto. Notwithstanding any other provision of law or any 

25 regulation or poli<~y of the Library of Congress or Register 

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of Copyrights, no performanee appraisal of a CoEvright 

2 Claims Officer or Copyright Claims Attorney shall con3 sider the substantive result of any individual determina4 tion reached by the Copyright Claims Board as a basis 

5 for appraisal except insofar as it may relate to any actual 

6 or alleged violation of an ethical standard of conduct. 

7 "(e) DIRECTION BY RIWISTER.-Subjeet to sub8 section (b), the Copyright Claims Officers and Copyright 

9 Claims Attorneys shall be generally directed in the admin1 0 istration of their duties by the Register of Copyrights. 

11 "(d) 1::\rcoNRISTEl'\T DuntJS BAIUum.-No Copy12 right Clair~s Officer or Copyright Claims Attorney may 

13 undertake duties that conflict with his or her duties or 

14 responsibilities in connection >vith the Copyrig·ht Claims 

15 Board. 

16 "(e) RECrSAL.-A Copyright Claims Officer or Copy17 right Claims Attorney shall recuse himself or herself from 

18 participation in any proceeding with respect to which the 

19 Copyright Claims Officer or Copyright Claims Attorney 

20 has reason to believe that he or she has a conflict of inter21 est. 

22 "(f) Ex PARTE Co:u:vru:--ncATIOl'\S.-Except as may 

23 othenvise be permitted by applicable law, any party to a 

24 proceeding before the Copyright Claims Board shall re25 frain from ex parte communications with the Copyright 

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Claims Offieers eoneerning the substanee of any pro2 cccding before the Copyright Claims Board. 

3 "(g) J'CDICIAL HEVIEW.-Actions of the CopyTight 

4 Claims Offieers and Hegister of ComTights under this 

5 chapter in connection with the rendering of individual dc6 terminations arc subject to judicial rcvieYv as provided 

7 under seetion 1407(e), and not under dmpter 7 of title 

8 5, United States Code. 

9 "§ 1403. Nature of proceedings 

10 "(a) VOLUX'l'ARY PARTICIPATIO~.-Participation m 

11 a Copyright Claims Board proceeding shall be on a vol12 untary basis in accordance with this chapter, and the right 

13 of any part~· to instead pursue a elaim, eounterelaim or 

14 defense in a United States district court or any other 

15 court, and to seek a jury trial, shall be preserved. 

16 "(b) STA'l'UTE 01<' J.JDHTA'l'IOXS.-

17 "(1) Ix GEXERAL.-No proceeding shall be 

18 maintained before the Copyright Claims Board un19 less it is eommeneed in aeeordmwe with seetion 

20 1405(e) before the Copyright Claims Board within 

21 three years after the claim that is the basis for the 

22 proeeeding accrued. 

23 "(2) Tm,LI~G.-Subject to section 1406(a), a 

24 proceeding· commenced before the Copyright Claims 

25 Board shall toll the time permitted under se<:~tion 

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507(b) of this title for commencement of an action 

2 on the same claim in a United States district court 

3 during the time it remains pending. 

4 "(e) PEn:.\rrssmu<: CLAIMS, Cou~TEHCT,AIMS A~D 

5 DEI<'E:'\SES.-'l'he Copyright Claims Officers may render 

6 determinations with respect to the following claims, coun7 terelaims and defenses, subject to sueh further limitations 

8 and requirements, including with respect to particular 

9 classes of works, as may be set forth in regulations estab10 lished by the Register of Copyright'l: 

11 "(1) A claim for infringement of an exclusive 

12 right of copyright provided under section 106 of this 

13 title, asserted by the legal or be11efieial owner of 

14 such exclusive right at the time of infringement pur15 suant to which the claimant seeks damages, if any, 

16 within the limitations set forth in subsection (e)(1 ). 

17 "(2) A claim for a declaration of noninfringe18 ment of an exclusive right of copyright provided 

19 under section 106 of this title, where an actual con20 troversy exists as evidenced by a written communica21 tion indicating that legal action against the claimant 

22 is imminent due to specifically alleged infringing 

23 conduct. 

24 "(3) Xotwithstanding any other provision of 

25 law, a claim pursuant to section 512(f) of this title 

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for misrepresentation in eonneetion with a notific~a2 tion of claimed infringement or a counter notifica3 tion seeking to replace removed or disabled material: 

4 Prom:cled, however, That auy remedies in such a pro5 ceeding before the Copyright Claims Board shall be 

6 limited to those available under this chapter. 

7 "(4) A counterclaim asserted solely against the 

8 claimant or claimants in a proceeding pursuant to 

9 which the counterclaimant or counterclaimants seck 

10 damages, if any, within the limitations set forth m 

11 subsection (e)(l), and that12 "(A) arises under section 106 or section 

13 512(f) of this title, and out of the same trans14 action or occurrence that is the subject of a 

15 claim of infringement brought under paragraph 

16 (1), a claim of noninfl·ingement brought under 

17 paragraph (2 ), or a claim of misrepresentation 

18 brought under paragraph ( 3); or 

19 "(B) arises under an agreemellt pertaining 

20 to the same transaction or occurrence that is 

21 the su~jcet of a claim of infringement brought 

22 under paragraph ( 1) and could affect the relief 

23 awarded to the claimant. 

24 "(5) A legal or equitable defense, pursuant to 

25 this title or otherwise available under law, in re-

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spom;e to a elaim or eounterdaim asserted under 

2 this subsection. 

3 "(6) A single claim or multiple elaims permitted 

4 under paragraph (1 ), (2), or (3) by one or more 

5 claimants against one or more respondents: Pro6 vided, however, That all claims asserted in any one 

7 proeeeding arise out of the same allegedly infringing 

8 aetivity or continuous course of infringing activities 

9 and do not in the aggregate result in a claim for 

10 damages in excess of the limitation provided in sub11 section (e)(l)(D). 

12 "(d) EXCIXDED CI.u.mts.-The following clainis and. 

13 counterelaims are not subject to determination by the 

14 Copyright Claims Board: 

15 "(1) A claim or counterclaim that is not a per16 missible elaim or counterelaim under subsection (e). 

17 "(2) A claim or counterclaim that has been fi18 nally adjudicated by a court of competent jurisdie19 tion or that is already pending before a court of 

20 competent jurisdiction, unless such court has issued 

21 a stay to permit such claim or counterclaim to pro22 eeed before the Copyright Claims Board. 

23 "(3) A claim or counterclaim by or against a 

24 I<'ederal or State government entity. 

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1 "( 4) A claim or <~ounterelaim asserted against a 

2 person or entity residing outside of the United 

3 States. 

4 "(5) A claim or eounterelaim dismissed by the 

5 Copyright Claims Board pursuant to section 

6 1405(f)(3). 

7 "(e) PT<JIDIISRIBLE RK\1EDIES.-

8 "(1) l\fOKI<J'PARY HECOVEHY.-

9 "(A) ACTUAL DA:\IAGES, PROFITS, A.'\D 

10 LUII'fED S'fA'fUTORY D!LvL\GES.-Subjeet to the 

11 limitation on total monetary recovery set forth 

12 in subparagraph (D), with respect to a claim or 

13 eounterelaim for infringeme11t of copyright, the 

14 Copyrig·ht Claims Board may award15 "(i) actual damages and profits deter16 mi11ed in aecordatwe \Vith section 504(b) of 

17 this title, which determination shall include 

18 in appropriate cases consideration of 

19 whether the infringing party has agreed to 

20 cease or mitigate the infringing activity as 

21 provided in paragraph (2); or 

22 "(ii) limited statutory damages, which 

23 shall be determined in accordance with sec24 tion 504{ c) of this title, snQject to the fol25 lowing conditions: 

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"(I) With respeet to works timely 

registered under section 412 of this 

title, such that they arc eligible for an 

award of statutory damages under 

that section, such limited statutory 

damages shall not exceed $15,000 per 

work infringed. 

"(II) \Vith respect to works not 

timely registered under section 412 of 

this title, but eligible for an award of 

statutory damages under this section, 

limited statutory damages shall not 

execcd $7,500 per work infringed, or 

a total of $15,000 in any one proceeding. 

"(III) The Copyright Claims 

Board shall not make any finding or 

eonsidcr whether the infringement was 

committed willfully in making au 

award of limited statutory damages. 

"(IV) 'rhc Cop)Tight Claims 

Board may eonsidcr as an additional 

factor in awarding limited statutory 

damages whether the infringer has 

agreed to cease or mitigate the in-
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fringing a<:tivity as provided m paragraph (2). 

"(B) ELECTIOX OF DAJ1AGES.-\Vith respect to a elaim or eonnterelaim of infringement, the claimant or counterclaimant shall 

after the elose of discovery and in accordance 

with the sehedule established by the Copyright 

Claims Board pursuant to section 1405(i) elect 

to pursue either actual damages and profits or 

limited statutory damages as provided in subparagraph (A). 

"(C) OTHER DAl\lAGES.-Damages for 

elaims alld eounterelaims other than infringement claims shall be awarded in accordance 

'vith applicable law and shall be subject to the 

limitation set forth in subparagraph (D). 

"(D) IJIMITATIO.\l OX TOTAL :\IO~ETARY 

RECOVERY.-Xotwithstanding any other provision of law, a party who punmes any one or 

more claims or counterclaims in any single proceeding before the Copyright Claims Board may 

not seek or recover in such proceeding a total 

monetary recovery that exceeds the sum of 

$30,000, exclusive of any attorneys' fees and 

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costs that may be awarded under section 

2 1405(x)(2). 

3 "(2) AGHEEMEKT TO CEASE l~FHI~GIXG AC'f[V4 ITY.-In any prO<~eeding where a party agrees to 

5 cease activity that is found to be infringing, includ6 ing removal or disabling of access to, or destruction 

7 of, infringing materials, and such agreement is re8 fleeted in the record, the Copyright Claims Board 

9 shall include in its determination a requirement that 

10 such party cease his or her infringing conduct. 

11 "(3) ATTOH~EYS' FEES A~D COSTS.-Xotwith12 standing any other provision of law, except in the 

13 ease of bad faith conduct as provided in section 

14 1405(x)(2), the parties to proceedings before the 

15 Copyright Claims Board shall bear their own attor16 ne.p;' fees and eosts. 

17 "(f) JorxT A~D SEVERAl; l1IABILITY.-Partics to a 

18 proceeding before the Copyright Claims Board may be 

19 found jointly and severally liable if all such partie;;; and 

20 relevant claims or counterclaims arise from the same ac21 tivity or activities. 

22 "§ 1404. Registration requirement 

23 "(a) APPLICATIO~ OR CERTIFICATE.-Xo claim or 

24 counterclaim alleging infringement of an exclusive right 

25 of copyright may be asserted before the Copyl'ight Claims 

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Board unless the owner of the eopyright has first delivered 

2 a completed application, deposit and the required fee for 

3 registration to the Copyright Office and either a registra4 tion certificate has been issued or has not been refused. 

5 "(b) CER'l'H,ICATE OP RI<JGISTRATIO~.-Notwith6 standing any other provision of law, a claimant or counter-

? claimant in a proeeeding before the Copyright Claims 

8 Board shall be eligible to recover actual damages and prof9 its or limited statutory damages for infi'ingemcnt of a 

10 work under this ehapter if the requirements of subsection 

11 (a) have been met: Provided, howevm·, That12 "(1) the Copyright Claims Board shall not 

13 render a determination in the proceeding until a reg14 istration certificate has been issued by the Copyright 

15 Offiee, submitted to the Copyright Claims Board 

16 and made available to the other parties to the pro17 cccding, and the other parties have been provided an 

18 opportunity to address it; 

19 "(2) if a proceeding <~annot proeeed furthel' due 

20 to an outstanding registration certificate for the 

21 work, it shall be held in abeyance pending submis22 sion of the certificate to the Copyright Claims 

23 Board; but if held in abeyance for more than one 

24 year, the Copyright Claims Board may, upon pro25 viding written notice to the parties and 30 days to 

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respond, dismiss the pro(~eeding without prejudice; 

2 and 

3 "(3) if the Copyright Claims Board receives no4 tice that registration has been refused by the Copy5 right Office, the proceeding shall be dismissed with6 out prejudice. 

7 "(e) PRESr:\IPTIO~.-Where a certificate shows that 

8 registration of a work was made before or within 5 years 

9 of its first publication, the presumption set forth in section 

10 410(e) of this title shall apply in a proceeding before the 

11 Copyright Claims Board, in addition to relevant principles 

12 of law under this title. 

13 "(d) To emmre that aetions before the Board proceed 

14 in a timely manner, the Register of Copyrights shall pro15 mulgate regulations providing the Copyright Office with 

16 the authority to issue a eertifieate of registration on an 

17 expedited basis. Such regulations shall treat applications 

18 for registration certificates pertaining to a proceeding be19 fore the Board on an expedited basis and separately from 

20 all other applications for certificates of reb>istration, except 

21 those applications subject to special handling under 37 

22 CFR 201.15. 

23 "§ 1405. Conduct of proceedings 

24 "(a) I~ GEI\ERAI".-Proceedings of the Copyright 

25 Claims Board shall be condueted in aeeordanee ·with this 

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chapter and regulations as implemented by the Reg·ister 

2 of Cop)Tights, in addition to relevant principles of law 

3 under this title. To the e:11.ient it appears there may be 

4 eonf1ieting judicial precedent 011 an issue of substa11tive 

5 copyright law that cannot be reconciled, the Copyright 

6 Claims Board shall follow the law of the Federal jurisdic7 tion where the action could have been brought if filed in 

8 Federal district court, or, if it could haw been brought 

9 in more than one jurisdiction, the jurisdiction that the 

10 Copyright Claims Bom·d determines has the most signifi11 cant tics to the parties and conduct at issue. 

12 "(b) RECOIID.-The Copyright Claims Board shall 

13 maintai11 records documenting the proceedings before it. 

14 " (c) CEX'l'RALIZED PHOCJ;jSS.-Procecdings before 

15 the Copyright Claims Board shall be conducted at the of16 fices of the Copyright Claims Board without the require17 ment of in-person appearances by parties or others, and 

18 shall take place by means of written submissions and hear-

] 9 ings and eonferew•es aecomplished via l11ternet-based ap20 plications and other telecommunications facilities: Pro21 vided, however, That in cases where physical or other non22 testimonial evidence material to a proeeeding cannot be 

23 furnished to the Copyright Claims Board through avail24 able telecommunications facilities, the Cop~Tight Claims 

25 Board shall have the discreti011 to make alternative ar-

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1 rangements for the submission of sueh evidence that do 

2 not prejudice another party to the proceeding. 

3 "(d) REPHESE~TATIOK.-A party to a proceeding be4 fore the Copyright Claims Board may, but is not required 

5 to be represented by6 "(1) an attorney; or 

7 "(2) a law student who is qualified under appli8 cable law goycrning law students' representation of 

9 parties in legal proceedings and who provides such 

10 representation on a pro bono basis. 

11 "(e) COM;\IE:\CKVIEKT OJ<' PROCI~~JDIXG.-'l'o com12 mence a proceeding, a claimant shall, sul{ject to such addi13 tiona! requirements as may be preseribed in regulations 

14 established by the Register of Copyrights, file a claim with 

15 the Copyright Claims Board, that16 "(1) irwludes a statement of material facts m 

17 suppmt of the claim; 

18 "(2) is certified in accordance ~ith subsection 

19 (x)(l);and 

20 "(3) is accompanied by a filing fcc in such 

21 amount as may be prescribed in regulations cstab22 lished by the Register of Cop)Tights, which amount 

23 shall be at least $100, shall not exceed the cost of 

24 filing an action in a United States district court, 

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and shall be established to further the goals of the 

2 Copyright Claims Board. 

3 "(f) REVIEW OF CL.ADIS Al\'D COC'\TEl{CLAlMS.-

4 "(1) CLADTS.-Upon filing, a elaim shall be re5 viewed by a Copyright Claims Attomcy to ensure 

6 that it complies with applicable regulations and this 

7 ehapter, including the following: 

8 "(A) If the claim is found to comply, the 

9 claimant shall be so notified and instructed to 

10 proceed with service of the elaim as provided in 

11 subsection (g). 

12 "(B) If the claim is found not to comply, 

13 the claimant shall be 11otified that the claim is 

14 deficient and permitted to file an amended 

15 claim within 30 days of the date of such notice 

16 without the requirement of an additional filing 

17 fcc. If the claimant files a compliant claim withIS in that period, he or she shall be so notified and 

19 instructed to proceed with senice of the claim. 

20 If the claim is rcfiled within the 30-day period 

21 but still fails to comply, the claimant 'vill again 

22 be notified that the claim is deficient and pro23 vided a second opportunity to amend it vvithin 

24 30 days without the requirement of an addi25 tiona] filing fcc. If the claim is rcfiled again 

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2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

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within the second 30-day period and is compliant, the claimant shall be so notified and instructed to proceed with service, but if the 

claim still fails to comply, upon confirmation of 

its noncompliance by a Copyright Claims Officer, the proceeding shall be dismissed without 

prejudiee. The Copyright Claims Board shall 

also dismiss without prejudice any proceeding 

in which a compliant claim is not filed within 

the applicable 30-day time period. 

"(C) J<"'or purposes of this paragraph, a 

claim against an online scnice provider for infringement by reason of storage of or referral 

or linking to infringing material that may be 

subject to the limitations on liability set forth 

in section 512(b), section 512(c), or section 

512(d) of this title, shall be considered noncompliant unless the claimant affirms in the 

statement required under subsection (e)(1) of 

this section that he or she has previously notified the service provider of the claimed infringement in accordance with section 512(b)(2)(E), 

section 512(e)(3), or section 512(d)(3) of this 

title, as applicable, and the service provider 

failed to remove or disable access to the mate-

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rial expeditiously upon the provision of such no2 tice: Provided, however, That if a claim is found 

3 to be noncompliant under this subparagTaph, 

4 the Cop)Tig·ht Claims Board shall provide the 

5 claimant with information concerning the scrv6 icc of such a notice pursuant to the relevant 

7 provision of this title. 

8 "(2) Cor::-lfTBRCI.AIMs.-Upon filing and service 

9 of a counterclaim, the counterclaim shall be reviewed 

10 by a Copyrig·ht Claims Attorney to ensure that it 

11 complies with the provisions of this chapter and ap12 plieable regulations. If the counterclaim is found not 

13 to comply, the eounterclaimant a11d other parties 

14 shall be notified that it is deficient and the eounter15 claimant permitted to file and serve an amended 

16 counterclaim within 30 days of the date of such no17 ticc. If the connterclaimant files and serves a compli18 ant counterclaim within that period, the countcr19 <•laimant and other parties shall be so notified. If the 

20 counterclaim is refiled and served within the 30-day 

21 period but still fails to comply, the counterclaimant 

22 and other parties 'vill again be notified that it is de23 ficient and the counterclaimant provided a second 

24 opportunity to amend it within 30 days. If the coun25 terclaim is refiled and served again within the see-

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1 ond 30-day period and 1s compliant, the counter2 elaimant and parties shall be so notified, but if the 

3 counterclaim still fails to comply, upon confirmation 

4 of its noncompliance by a Copyright Claims Officer, 

5 the counterelaim, but not the proceeding, shall be 

6 dismissed without prejudice. 

7 "(3) DISMISSAL FOH GOOD CAUSE.-The Copy8 right Claims Board shall dismiss a proceeding with9 out prejudice if, upon reviewing a claim or counter1 0 elaim, or at any other time in a proceeding, the 

11 Copyright Claims Board coneludes that it is unsuit12 able for determination by the Copyright Claims 

13 Board, ineluding due to the following: 

14 "(A) The failure to join a necessary party. 

15 "(B) The lack of an essential witness, evi16 denee, or expert testimony. 

17 " (C) Determination of a relevant issue of 

18 law or fact that could exceed the competence of 

19 the Copyright Claims Board. 

20 "(g) SI<JRVICE <W NOTICE Al'\D CLAIMS.-'fo proceed 

21 with a claim against a respondent, a claimant must within 

22 90 days of reeehing notification to pro<~eed with seniee 

23 f:tle proof of service on the respondent vvith the Copyright 

24 Claims Board. To effectuate senrice on a respondent, the 

25 daimant must cause notice of the proceeding and a copy 

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of the daim to be served on the respondent, either by per2 sonal service or pursuant to a waiver of personal serYice, 

3 as prescribed in regulations established by the Register of 

4 Copyrights. Such regulations shall inelude the followillg 

5 requirements and conditions: 

6 "(1) The notice of the proceeding shall adhere 

7 to a prescribed form and shall set forth the nature 

8 of the Copyright Claims Board and proceeding, the 

9 respondent's right to opt ont, and the consequences 

10 of opting out and not opting out, ineluding a promi11 nent statement that, by not opting out within the 

12 30-day period, the respondent13 "(A) will forgo the opportunity to have the 

14 dispute decided by a court created under article 

15 III of the Constitution of the United States; 

16 and 

17 "(B) will be waiving the right to a JUry 

18 trial regarding the dispute. 

19 "(2) The copy of the elaim served on the re20 spondent shall be as it was filed with the Copyright 

21 Claims Board. 

22 "(3) Personal service of a notice and claim may 

23 he effected by an individual who is not a party to 

24 the proceeding and is over the ag'e of 18. 

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"(4) An individual, other than a minor or m2 competent individual, may be served by3 "(A) follmving State law for serving a sum4 mons in an action brought in courts of general 

5 jurisdiction in the State where service is made; 

6 or 

7 "(B) doing any of the following: 

8 "(i) Delivering a copy of the notice 

9 and claim to the individual personally. 

10 "(ii) l.Jeaving a copy of each at the in11 dividual's dwelling or usual place of abode 

12 with someone of suitable age and discre13 tion who resides there. 

14 "(iii) Delivering a copy of each to an 

15 agent authorized by appointment or by law 

16 to receive service of process. 

17 " ( 5) A corporation, partnership or unincor18 porated association that is snl{ject to suit in courts 

19 of general jurisdiction under a common name may 

20 be served by21 "(A) follmving State law for serving a sum22 mons in an action brought in courts of general 

23 jurisdiction in the State where service is made; 

24 or 

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"(B) delivering a eopy of the notice and 

2 elaim to an officer, a managing or general 

3 agent or any other agent authorized by appoint4 ment or by law to receive service of process in 

5 an action brought in courts of general jurisdic6 tion and, if the agent is one authorized by stat7 ute and the statute so requires, by also mailing 

8 a copy of each to the respondent. 

9 "(6) To request a waiver of personal service, 

10 the claimant may notifY a respondent by first elass 

11 mail or other reasonable means that a proceeding 

12 has been commenced in accordance with regulations 

13 established by the Register of Copyrights, which 

14 shall include the following: 

15 "(A) Any such request shall be in writing 

16 and addressed to the respondent, and be accom17 panicd by a prescribed notice of the proceeding 

18 and copy of the elaim as filed with the Copy19 right Claims Board, as well as a prescribed 

20 form for waiver of personal service, and a pre21 paid or costless means of returning the form. 

22 "(B) The request shall state the date it 

23 was sent and provide the respondent 30 days to 

24 return the sig11ed waiver form, which signed 

25 waiver shall constitute acceptance and proof of 

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servi<~e as of the date it is signed for purposes 

2 of this subsection. 

3 "(7) A respondent's waiver of personal service 

4 shall not constitute a waiver of the respondent's 

5 right to opt out of the proceeding: Provided, lwwever, 

6 That a respondent who timely waives personal serv7 ice and does not opt out shall he allowed an addi8 tional 30 days beyond the amount of time normally 

9 permitted under the applicable procedures of the 

10 Copyright Claims Board to submit a substantive re11 sponse to the claim, including any defenses and 

12 counterclaims. 

13 "(8) A minor or an incompetent individual may 

14 only be served by following State law for serving a 

15 summons or like process on such an individual in an 

16 action brought in the courts of general jurisdiction 

17 of the State where service is made. 

18 "(9) Service of a elaim and waiver of personal 

19 service may only be effected within the United 

20 States. 

21 "(h) 0PT-0U'f PROCEDURE.-Upon being properly 

22 served v;ith a notice and elaim, a respondent who chooses 

23 to opt out of the proceeding shall have 30 days from the 

24 date of service in which to provide written notice of such 

25 choice to the Cop;yright Claims Board, in aceordanee with 

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regulations established by the Register of Copyrights. If 

2 proof of service has been filed by the claimant and the 

3 respondent does not submit an opt-out notice to the Copy4 right Claims Board within 30 days of service, the pro5 ceeding shall be deemed an actiYe proceeding and the rc6 spondent shall be bound by the result to the extent pro7 vided under section 1406(a). If the respondent opts out 

8 during that period, the proceeding shall be dismissed vvith9 out prejudice: Provided, however, That in exceptional eir1 0 cumstances and upon written notice to the elaimant, the 

11 Copyright Claims Board may extend such :10-day period 

12 in the interests ofjustice. 

13 "(i) SERVICE OF OTHER DocrMEXTS.-Other doeu14 ments submitted or relied upon in the proceeding shall be 

15 served as provided in regulations established by the Reg16 ister of Copyrights. 

17 "(j) ScriEmn~rxG.-Upon confirmation that a pro18 cceding has become an active proceeding, the Copyright 

19 Claims Board shall issue a s<•hedule for future eonduet of 

20 the proceeding. A schedule issued by the Copyright Claims 

21 Board may be amended by the Copyright Claims Board 

22 in the interests of justice. 

23 "(k) COXFEREKCES.-One or more Copyright Claims 

24 Officers may hold a conference to address ease manage25 ment or discovery issues in a proceeding: Provided, how-

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1 ever, That such conference shall not be addressed to ulti2 mate issues of fact or law. Any such conference shall be 

3 noted upon the record of the proceeding and may be re4 corded or transcribed. 

5 "(l) PARTY SumnssiO::\S.-There shall be no formal 

6 motion practice in a Copyright Claims Board proceeding·: 

7 P1·ovided, however, That, sul:1jeet to applicable regulations 

8 and the procedures of the Copyright Claims Board9 "(1) the parties to a proceeding shall be per10 mitted to make requests to the Copyright Claims 

11 Board to address case management and discovery 

12 matters, and submit responses thereto; and 

13 "(2) the Copyrig·ht Claims Board may request 

14 or permit parties to make submissions addressing 

15 relevant questions of fact or law, or other matters, 

16 inC'luding matters raised sua sponte by the Copy17 right Claims Officers, and offer responses thereto. 

18 "(m) DISCOVERY.-Discovcry shall be limited to the 

19 production of relevant information and documents, written 

20 interrogatories, and written requests for admission, as fur21 ther provided in regulations established by the Register 

22 of Copyrights: Provided, however, 'l'hat23 "(1) upon request of a party, and for good 

24 cause shovvn, the Copyright Claims Board shall have 

25 the discretion to approve additional limited discovery 

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32 

m partieular matters, and may request speeifi<' in2 formation and documents from participants in the 

3 proceeding and voluntary submissions from non4 participants; 

5 "(2) upon request of a party, and for good 

6 cause shmv11, the Copyright Claims Board may issue 

7 a protective order to limit the diselosure of doeu8 ments or testimony that contain confidential infor9 mation; and 

10 "(3) after providing notice and an opportunity 

11 to respond, and upon good cause shmvn, the Copy12 right Claims Board may apply an adverse inference 

13 with respeet to disputed facts against a party who 

14 has failed timely to provide discovery materials in 

15 response to a proper request for materials that could 

16 be relevant to such facts. 

17 "(n) EVIDEXCK-'l'he Copyright Claims Board may 

18 consider the following types of evidence, which may be ad19 mitted without applieation of formal rules of evidence: 

20 "(1) Documentary and other nontestimonial 

21 evidence that is relevant to the claims, counterclaims 

22 or defenses in a proceeding. 

23 "(2) Testimonial evidence, submitted under 

24 penalty of per:jury in \vTitten form or in accordance 

25 with subsection (o), limited to statements of the par-

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1 ties and nonexpert witnesses, that is relevant to the 

2 claims, counterclaims and defenses in a proceeding: 

3 Provided, however, That in exceptional eases expert 

4 witness testimony or other types of testimony may 

5 be permitted by the Copyright Claims Board for 

6 good cause shown. 

7 "(o) HI<JARIXGS.-The Copyright Claims Board may 

8 conduct a hearing to receive oral presentations on issues 

9 of fact or law from parties and witnesses to a proceeding, 

10 ineluding oral testimony: P1·ovided, however, That11 "(1) any such hearing shall be attended by at 

12 least two of the Copyright Claims Officers; 

13 "{2) the hearing shall be 11oted upon the record 

14 of the proceeding and, subject to paragraph (3), may 

15 be recorded or transcribed as deemed necessary by 

16 the Copyright Claims Board; and 

17 "{3) a recording or transcript of the hearing 

18 shall be made available to a Copyright Claims Offi19 eer who is not in attendance. 

20 "(p) VOUJNTAHY DIS.:.\IISSAh21 "{1) BY CLADIA .. '\T.-Upon written request of a 

22 elaimant reeeived prior to a respondent's filing of a 

23 response to a claim, the Copyright Board shall dis24 miss the proceeding, or a claim or respondent, as re25 quested, such dismissal to be without prejudice. 

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34 

1 "{2) BY COC\'TEHCLAIMA~T.-Upon \\<Titten re2 quest of a counterclaimant received prior to a claim3 ant's filing of a response to a counterclaim, the 

4 Cop~Tight Claims Board shall dismiss the counterS claim, such dismissal to be ·without prejudice. 

6 "(q) 8ETTLE;.\IE.:\'T.-At any time in an active pro7 ceeding some or all of the parties may8 "(1) jointly request a conference with a Copy9 right Claims Officer for the purpose of facilitating 

10 settlement discussions; or 

11 "{2) submit to the Copyright Claims Board an 

12 agreement providing for settlement and dismissal of 

13 some or all of the claims and counterclaims in the 

14 proceeding, which submission may also include a re15 quest that the Copyright Claims Board adopt some 

16 or all of the terms of the parties' settlement in a 

17 final determination. 

18 "(r) FACTl:AI, FINDIXGS.-Su~ject to subsection 

19 (m)(3), the Cop~Tight Claims Board shall make factual 

20 findings based upon a preponderance of the evidence. 

21 "(s) DETER...\'flNATIOXS.-

22 "(1) NATURE AXD CONTENTS.-A determina23 tion rendered by the Copyright Claims Board in a 

24 proceeding shall-

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35 

1 "(A) be reached by a majority of the Copy2 right Claims Board; 

3 "(B) be in writing, and include an expla4 nation of the factual and legal basis of the deei5 sion therein; 

6 "(C) pursuant to section 1403(e)(2), set 

7 forth any terms by which a respondent or coun8 terclaim respondent has agreed to cease infring9 ing activity; 

10 "(D) pursuant to subsection (q)(2) and to 

11 the extent agreed by the parties, set forth the 

12 terms of any settlement to the extent requested 

13 by the parties; and 

14 "(E) include a clear statement of all dam15 ages and other relief awarded, including pursu16 ant to subparagraphs (C) and (D). 

17 "(2) DISSEKT.-A Copyright Claims Officer 

18 who dissents from a decision contained in a deter19 mination may append a statement setting forth the 

20 grounds for his or her dissent. 

21 "(3) Pt:BI"ICA'fiO:'\.-Final determinations of 

22 the Copyright Claims Board shall be made available 

23 on a publicly accessible website with other records to 

24 be made available to the public in accordance with 

25 law: Provided, however, That such records may be 

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redaeted by the Copyright Claims Board to protect 

2 confidential information that is the subject of a pro3 tective order under subsection (m)(2). 

4 "(t) RESPO:'\DE:'\T'S DEFAULT.-\V1wre a proceeding 

5 has been deemed an active proceeding but the respondent 

6 has failed to appear or has ceased participating in the pro7 ceeding, as demonstrated by his or her failure to meet one 

8 or more deadlines or requirenwnts set forth in the sehed9 ule adopted by the Copyright ( 'lailns Board pursuant to 

10 subseetiou (j) without justifiable cause, the Copyright 

11 Claims Board may enter a default determination, inelnd12 ing the dismissal of any counterclaim asserted by a rc1 3 spondent, as follows and in accordance ·with such other 

14 requirements as the Register of Copyrights may prescribe 

15 by regulation: 

16 "(1) The Copyright Claims Board shall require 

17 the claimant to submit relevant evidence and other 

18 information in support of his or her claim and any 

19 asserted damages and, upon rC\iew of such evidence 

20 and any other requested submissions from the claim21 ant, shall determine whether the materials so sub22 mitted are sufficient to support a finding in fayor of 

23 the claimant under applicable law and, if so, the ap24 propriate relief and damages, if any, to be awarded. 

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"(2) If the elaimant has met his or her burden 

2 under paragraph (1), the Copyright Claims Board 

3 shall prepare a proposed default determination and 

4 provide written notice to the respondent at all ad5 dresses, including email addresses, reflected in the 

6 reeords of the proceeding before the Copyright 

7 Claims Board, concerning the pendency of a default 

8 dctem1ination by the Copyright Claims Board and 

9 the legal significance of such determination. Such 

10 notice shall be accompanied by the proposed default 

11 determination and provide that the respondent has 

12 30 days from the date of the notice to submit any 

13 evidence or other inforiilation in opposition to the 

14 proposed default determination. 

15 "(3) If the respondent responds to the notice 

16 provided under paragraph (2) within the 30-day pe17 riod, the Copyright Claims Board shall consider re18 spondent's submissions and, after allowing the other 

19 parties to address such submissions, maintain or 

20 amend its proposed determination as appropriate, 

21 and the resulting deteriilination shall not be a de22 fault determination. 

23 "( 4) If the respondent fails to respond to the 

24 notice provided under paragraph (2), the Copyright 

25 Claims Board shall proceed to issue the default de-

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termination as a final determination. Thereafter, the 

2 respondent may only challenge such determination to 

3 the eJ~.i,ent permitted under section 1407(c): Pro4 t•ided, howet,er, That prior to the initiation of any 

5 additional proceedings under section 1407, the 

6 Copyright Claims Board shall have the discretion to 

7 vacate the default determination iu the interests of 

8 justice. 

9 "(u) CLADL\NT'S FAILURE To PROCEED.-

10 "(1) FAIL URI<~ '1'0 f'o:\lPLETg SERVI<'K-If a 

11 claimant fails to complete service on a respondent 

12 within the 90-day period as prescribed in subsection 

13 (g), that respondent shall be dismissed from the pro14 ceeding without prejudice; and if a claimant fails to 

15 complete service on all respondents within the 90-

16 day period, the proceeding shall be dismissed by the 

17 Copyright Claims Board without prejudice. 

18 "(2) FAIIXRE TO PROSECl'TE.-If a claimant 

19 fails to pro<'eed in an aetive proc•eeding, as dem20 onstratcd by his or her failure to meet one or more 

21 deadlines or requirements set forth in the schedule 

22 adopted by the Copyright Claims Board pursuant to 

23 subsection (j) without justifiable cause, the Copy24 right Claims Board may, upon providing written no25 tice to the elaimant and 30 days to respond, issue 

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39 

a determination dismissing the claimants' daims, 

2 which shall include an award of attorneys' fees and 

3 costs if appropriate under subsection (x)(2). There4 after, the elaimant may only challenge such deterS mination to the extent permitted under section 

6 1407(c): Provided, however, That prior to the initi7 ation of any additional proceedings under section 

8 1407, the Copyright Claims Board shall have the 

9 discretion to vacate the determination of dismissal in 

10 the interests of justice. 

11 "(v) RECOJ\'SIDEltATIO.:\.-A party may, within 30 

12 days of the date of issuance of a final determination by 

13 the Copyright Claims Board, submit a written request for 

14 reconsideration of, or an amendment to, such determina15 tion if the party identifies a clear error of law or fact ma16 terial to the outcome, or a technical mistake. After pro17 viding the other parties an opportunity to address such 

18 request, the Copyright Claims Board shall respond by de19 nying the request or issuing an amended final determina20 tion. 

21 "(w) REVIEW BY REGISTEH.-A party who has been 

22 denied reconsideration by the Copyright Claims Board 

23 may, within 30 days of the date of such denial, request 

24 review by the Register of Copyrights in accordance with 

25 regulations established by the Register of Copyrights, 

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40 

whieh regulations shall provide for a reasonable filing fee. 

2 The Register's review shall be limited to consideration of 

3 whether the Copyright Claims Board abused its discretion 

4 in denyil1g reconsideration. After providing the other parS ties an opportunity to address the request, the Register 

6 shall respond by denying the request or remanding the 

7 proceeding to the Copyright Claims Board for reconsiderS ation of identified issues and issuance of an amended final 

9 determination, which amended final determination shall 

I 0 not be suqject to further consideration or review other 

11 than pursuant to section 1407(c). 

12 "(x) CO~DUCT 01<' PARTIES .A~D ATTOR:-<EYS.-

13 "(1) CERTll<'TCATTO:-<.-The Register of Copy14 rights shall establish regulations concerning certifi15 cation of the accuracy and truthfulness of state16 ments made by participants in proeeedings before 

17 the Copyright Claims Board. 

18 "(2) BAD F.UTH COJ\DUCT.-~otwithstanding 

19 any other prO\·ision of law, iu any proceeding m 

20 which a determination is rendered and21 "(A) it is established that a party pursued 

22 a claim, counterelaim or defense for a harassing 

23 or other improper purpose, or without rcason24 able basis in law or fact; or 

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41 

1 "(B) the daimant's elaim is dismissed for 

2 failure to prosecute pursuant to subsection 

3 (u)(2), unless inconsistent with the interests of 

4 justice, the Copyright Claims Board shall in 

5 such determination award reasonable attorneys' 

6 fees and costs to any adversely affected party or 

7 parties in a total amount not to exceed $5,000: 

8 Pr·ovided, however, that if an adversely affected 

9 party appeared pro se in the proceeding, the 

10 award to that party shall be of eosts only and 

11 no more than $2,500. 

12 "(3) If it is established that on more than one 

13 oceasion within a 12 month period a party pursued 

14 a claim, counterclaim or defense before the Board 

15 for a harassing or other improper purpose, or ·with16 out reasonable basis in law or fact, such party shall 

17 be barred from initiating a claim before the Board 

18 for a period of 12 months. 

19 "(y) Notwithstanding anything to the contrary in this 

20 chapter, the Re~>ister of Copyrights may promulgate regu21 lations allowing for the disposition of any claim in which 

22 total damages sought are $5,000 or less (exclusive of at23 torneys' fees and costs). At a minimum, any such regula24 tions shall provide-

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42 

1 "(1 ) for one eopyright claims officer to consider 

2 and issue a determination with regard to the claim; 

3 and 

4 "(2) for which a copyright claims attorney shall 

5 review the claim and determine whether the case 

6 shall be heard by one officer or the Board. 

7 "(z) A elaimant may request the Board to issue a 

8 subpoena to a service provider for identification of an al9 leged infringer of claimant's copyrighted work. The Copy1 0 right Offiee shall promulgate regulations governing, at 

11 minimum, the issuance of the subpoena, the contents of 

12 the request, the contents of the subpoena, and the obliga13 tiom; of a service provider who is issued a subpoena. The 

14 regulations shall further require that the claimant seeking 

15 the subpoena must make a sworn declaration to the effect 

16 that the purpose for which the subpoena is sought is to 

17 obtain the identity of an alleged infringer and that such 

18 information will only be used for the purpose of protecting 

19 rights under this Act. Such subpoenas shall be enforceable 

20 by the United States District Court for the District of Co21 lnmbia. 

22 "§1406. Effect of proceeding 

23 "(a) DETER.."VI:IKATIOX.-Subject to the reconsider24 ation and review processes afforded by sections 1405(v) 

25 and 1405(w), respectively, and section 1407(c), the ren-

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1 dering of a final determination by the Copyright Claims 

2 Board in a proceeding, including a default determination 

3 or determination based on failure to prosecute, shall, solely 

4 with respeet to the parties to such determination, preclude 

5 rclitigation before any court or tribunal, or before the 

6 Copyright Claims Board, of the claims and counterclaims 

7 asserted and finally determined by such determination, 

8 and may be relied upon for such purpose in a future action 

9 or proceeding arising from the same specific activity or 

10 aetivities: Provided, however, That11 "(1) a determination of the Copyright Claims 

12 Board shall not preclude litigation or relitigation as 

13 between tlJC same or different parties before any 

14 court or tribunal, or the Copyright Claims Board, of 

15 the same or similar issues of fact or law in comlec16 tion ·with claims or counterclaims not asserted and 

17 finally determined by the determination of the Copy18 right Claims Board; 

19 "(2) a determination of ownership of a eopy20 righted work for purposes of resolving a matter be21 fore the Copyright Claims Board shall not be relied 

22 upon, and shall have no preclusive effect, in any 

23 other action or proceeding before any other court or 

24 tribunal, including the Copyright Claims Board; and 

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"(3) except to the extent permitted in this sub2 section and Rection 1407, no determination of the 

3 Copyright Claims Board shall be cited or relied upon 

4 as legal precedent in a11y other aetion or proceeding 

5 before any court or tribunal, including the Copyright 

6 Claims Board. 

7 "(b) 0Tinm MA'fERIALS IX PROCE.IWIXG.-Exeept 

8 aR permitted under this section and Rection 1407, a sub9 mission or statement of a party or witness made in conncc10 tion with a proceeding before the Copyright Claims Board, 

11 including a proceeding that is dismissed, shall not be cited 

12 or relied upon in, or serve as the basis of, any action or 

13 proceeding concerning rights or limitations on rights 

14 under thiR title before any court or tribunal, including the 

15 Copyright Claims Board. 

16 "(e) WITH RBSP.I<JCT TO SEC'l'IOK 512(g).-Notwith17 standing any other provision of law, the commencement 

18 of a proceeding by a claimant before the Copyright Claims 

19 Board agaiust a su bseriber of a servi<~e provider that seeks 

20 a declaration of infringement concerning material that has 

21 been removed or to which access has been disabled by the 

22 service provider in response to a notifieation of claimed 

23 infringement by the claimant pursuant to section 

24 512(c)(1)(C) of this title shall be a basis to preclude the 

25 replacement of such material by the service provider pur-

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1 suant to se~tion 512(g) of this title if notiee of the eom2 mencement of the Copyright Claims Board proceeding is 

3 provided by the claimant to the service provider's des4 ignated agent not less than 1 0 nor more than 14 business 

5 days following receipt of a counter notification by the serv6 ice provider pursuant to section 512(g·) of this title. 

7 "(d) FAILUim To Assi<mT CotTKTERClu\DI.-The 

8 failure or inability to assert a counterclaim in a proceeding 

9 before the Copyright Claims Board shall not preclude its 

10 assertion in a subsequent court action or proceeding bell fore the Copyright Claims Board. 

12 "(e) 0PT-0UT OR DIS:HISSAL OF PAHTY.-lf a party 

13 has timely opted out of a proceeding under section 

14 140f)(h) or is dismissed from a proceeding prior to the 

15 issuance of a final determination by the Copyright Claims 

16 Board, the determination shall not be binding upon and 

17 shall have no preclusive effect \\<-ith respect to that party. 

18 "§ 1407. Review and confirmation by district court 

19 "(a) I;-.; GE:\'EHAL.-In aJl.Y pro<~eeding in which a 

20 party has failed to pay monies as required or othern-isc 

21 comply \Nith the relief awarded in a final determination 

22 of the Copyright Claims Board, including a default deter23 mination or a determination based on failure to prosecute, 

24 the aggrieved party may, within one year of the issuance 

25 of such final determination, resolution of any reconsider-

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ation by the Copyright Claims Board or review by the Reg2 ister of Copyrights, or issuance of an amended final deter3 mination, whichever occurs last, apply to the United 

4 States District Court for the District of Columbia or any 

5 other federal district court of competent jurisdiction for 

6 an order confirming the final relief awarded and reducing· 

7 such award to judgment. The court shall grant such order 

8 and direct entry of judgment unless the determination is 

9 or has been vacated, modified or corrected as permitted 

10 under subsection (e). If the United States District Court 

11 for the District of Columbia or any other federal district 

12 court of competent jurisdiction issues an order confirming 

13 the relief awarded by the Board, the Court must impose 

14 on the party who failed to pay damages or otherwise com15 ply with the relief, the reasonable expenses required to se16 cure such order, including attorney fees, incurred by the 

17 aggrieved party. 

18 "(b) FILIXG PROCEDURES.-

19 "(1) Notice of the application for confirmation 

20 of a determination of the Copyright Claims Board 

21 and entry of judgment shall be provided to all par22 ties to the proceeding before the Copyright Claims 

23 Board, in accordance with the procedures applicable 

24 to service of a motion in United States District 

25 Court for the District of Columbia. 

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"(2) The application shall include a certified 

2 copy of the final or amended final determination of 

3 the Copyright Claims Board, as reflected in the 

4 records of the Copyright Claims Board, following 

5 any process of reconsideration or review by the Reg6 ister of Copyrights, to be confirmed and rendered to 

7 judgment, as well as a declaration by the applicant 

8 under penalty of pc1jury that it is a tl'Uc and correct 

9 copy of such determination, the date it was issued, 

10 and whether the applieant is aware of any other pro11 ceedings before the United States District Court 

12 concerning the same determination of the Copyright 

13 Claims Board. 

14 "(c) CIIALLE.:\GES '1'0 TilE DI<::TER.'\U.:\ATIOJ\'.-

15 "(1) BASES J<'OR CH.AI,LE.:\GE.-Upon applica16 tion of a party to the Copyright Claims Board pro17 ceeding within 90 days of the issuance of a final or 

18 amended final determination by the Copyright 

19 Claims Board following any process of reconsider20 ation or review by the Register of Copyrights, the 

21 United States District Court for the District of Co22 Jumbia may issue an order vaeating, modif)ring or 

23 correcting a determination of the Copyright Claims 

24 Board in the follmving cases: 

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"(A) \\l1ere the determination was issued 

or as a result of fraud, corruption, misrepresentation, or other misconduct. 

"(B) vv11ere the Copyrig·ht Claims Board 

exceeded its authority or failed to render a final 

and definite determination concerning the subjeet matter at issue. 

"(C) In the case of a default determination 

or determination based on failure to prosecute, 

where it is established that the default or failure was une to excusable neglect. 

"(2) PROCEDUHE TO CHAU,EKGK-

"(A) Xotiee of the application to ehallenge 

a determination of the Copyright Claims Board 

shall be provided to all parties to the proceeding 

before the Copyright Claims Board, in accordance Vlith the procedures applicable to service of 

a motion in United States District Comi, for 

the District of Columbia. 

"(B) The application shall include a certified copy of the final or amended final determination, as ref1eeted in the records of the 

Copyright Claims Board following any process 

of reconsideration or review by the Register of 

Cop)Tights, that is the subject of the applica-

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8 

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tion, as well as a declaration by the appliea11t 

under penalty of perjury that it is a true and 

correct copy of such determination, the date it 

was issued, the basis for challenge under subsection (c)( 1), and ·whether the applicant is 

aware of any other proceedings before the 

United States District Court concerning the 

same determination of the Copyright Claims 

Board. For the purposes of the application, any 

judg·e who might make an order to stay the proceedings in an action brought in the same 

court, may make an order, to be served ·with the 

notice of application, staying· proceedings to enforce the award. 

15 "§ 1408. Relationship to other district court actions 

16 "(a) STX\' OF DIH'l'IUC'l' CoeRT PIWCEJ<JDIKGS.-A 

17 United States district court shall order a stay of pro18 ceedings or· such other relief as it deems appropriate with 

19 respect to any claim brought before it that is already the 

20 subject of a pending· active proceeding before the Copy21 right Claims Board. 

22 "(b) DIH'l'RICT COCI{T COST AXD FEE AWARDS.-In 

23 any case before a United States district court in which 

24 the court is considering whether to award costs or attor25 neys' fees to a prevailing party pursuant to section 505 

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of this title, the district eourt may in its discretion take 

2 into account, among· other relevant factors, whether the 

3 nonprevailing party had the option and could have chosen 

4 to proceed before the CopyTight Claims Board in lieu of 

5 the district court. 

6 "(c) ALTER~ATIVE DISPUTE RESOI,UTIOX PIWC7 ESS.-The Copyright Claims Board shall qualify as anal8 ternative dispute resolution process under section 651 of 

9 title 28 for purposes of referral of eligible cases by United 

10 States district courts upon consent of the parties. 

11 "§ 1409. Implementation by Copyright Office 

12 "(a) REGULA'l'IOXS.-

13 "(1) 1:\rPLE::\fEXTATIOX GE~ERALIN.-The Reg14 ister of Copyrights shall establish regulations to im15 plement the Copyright Claims Board as con16 templated by this chapter, inc~luding the establish17 ment of the fees prescribed by sections 1405(e)(3) 

18 and 1405(w), which authority shall not limit the 

19 Register's more general authority to establish fees 

20 for services in accordance with section 708 of this 

21 title. All fees received by the Copyright Office in 

22 cmmeetion with the activities mtder this chapter 

23 shall be deposited by the Register and credited to 

24 the appropriations for necessary e]!.l)(~nses of the Of'-

25 fiee in accordance with section 708( d) of' this title. 

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1 "(2) LIMITS OK ~10.:-.!I<JTARY RELIEF.-The Reg2 ister may conduct a rnlcmaking to adjust the limits 

3 on monetary recovery or attorneys' fees and costs 

4 that may be awarded under this chapter to further 

5 the goals of the Copyright Claims Board: Provided, 

6 however, That any resulting rule that makes such an 

7 adjustment shall become effeetive at the end of a pe8 riod of 120 days after the rule is submitted to Con9 gress and only if Congress does not enact a law 

10 within such 120-day period that provides in sub11 stance that Congress docs not approve of the new 

12 rule. 

13 "(b) NECESSARY FACILITIES.-Sul{jeet to applicable 

14 law, the Register of Copyrights may retain outside vendors 

15 to establish Internet-based, teleconferencing and other fa16 cilities required to operate the Copyright Claims Board. 

17 "§ 1410. Funding 

18 "There arc authorized to he appropriated such sums 

19 as may be necessary to pay the eosts incurred by the. Copy20 right Office under this chapter that arc not covered by 

21 fees collected for services rendered under this chapter, in22 eluding the costs of establishing and maintaining the 

23 Copyright Claims Board and its facilities. 

24 "§ 1411. Deimitions 

25 "As used in this chapter-

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"(1) the term 'party' refers to both a party and 

2 the party's attorney, as applicable; 

3 "(2) the term 'person' (including 'his' and 

4 'her') refers to both an individual and an entity that 

5 is amenable to legal process under applicable law; 

6 and 

7 "(3) the term 'United States' has the meaning 

8 given in section 101 of this title.". 

9 (b) CLERICAL .A.ME~D:\IEXT.-The table of chapters 

10 for title 17, United States Code, is amended by adding 

11 after the item relating to chapter 13 the following new 

12 item: 

"14. Copyright Small Claims ........................................................ 1401". 

13 SEC. 3. IMPLEMENTATION. 

14 The Copyright Claims Board shall begin operation no 

15 later than one year after of the date of the enactment of 

16 this Act. 

17 SEC. 4. STUDY. 

18 ~ot later than :3 years after the issuance of the first 

19 determination by the Copyright Claims Board, the Reg20 ister of Copyrights shall deliver a study to Congress that 

21 addresses22 ( 1) the usc and efficacy of the Copyright 

23 Claims Board in resolvhtg copyright elaims; 

24 (2) whether adjustments to the authority of the 

25 Copyright Claims Board, including eligible claims 

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1 and works and applicable damages limitations, are 

2 necessary or advisable; 

3 (3) whether greater allowance should be made 

4 to permit awards of attorneys' fees and costs to pre5 vailing parties, including potential limitations on 

6 such awards; 

7 ( 4) potential mechanisms to assist copyright 

8 o-vvncrs "'1.th small claims in ascertaining the identity 

9 and location of unknown online infringers; 

10 (5) whether the Copyright Claims Board should 

11 be expanded to offer mediation or other nonbinding 

12 alternative dispute resolution services to interested 

13 parties; and 

14 (6) such other matters as the Register of Copy15 rights believes may be pertinent concerning the 

16 Copyright Claims Board. 

17 SEC. 5. SEVERABILITY. 

18 If any provision of this Act is declared unconstitu19 tional, the validity of the remainder of this Aet shall not 

20 be affected. 

0 

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COPYRIGHT ALTERNATIVE IN SMALL-CLAIMS 

ENFORCEMENT ACT OF 2017 

THURSDAY, SEPTEMBER 27, 2018 

HOUSE OF REPRESENTATIVES

COMMITTEE ON THE JUDICIARY

Washington, DC 

The committee met, pursuant to call, at 2:20 p.m., in Room 2141, 

Rayburn House Office Building, Hon. Bob Goodlatte [chairman of 

the committee] presiding. 

Present: Representatives Goodlatte, Smith, Chabot, Issa, Gohmert, Marino, Collins, Buck, Handel, Nadler, Lofgren, Johnson of 

Georgia, Jeffries, Cicilline, Lieu, Jayapal, and Demings. 

Staff Present: Shelley Husband, Staff director; Branden Ritchie, 

Deputy Staff Director; Zach Somers, Parliamentarian and General 

Counsel; and Joe Keeley, Chief Counsel, Subcommittee on Courts, 

Intellectual Property, and the Internet. 

Chairman GOODLATTE. Good morning. The Judiciary Committee 

will come to order. And without objection, the chair is authorized 

to declare a recess of the committee at any time. 

We welcome everyone to this morning’s hearing at H.R. 3945, the 

Copyright Alternative in Small-Claims Enforcement Act of 2017. 

I will begin by recognizing myself for an opening statement. 

Like all creators, copyright owners, large and small, deserve to 

be compensated for their efforts. Thanks to the growth of the Internet economy, a creator now has the ability to distribute their works 

worldwide. However, this also means that those who view intellectual property as something worth stealing, also have a means to 

more easily distribute stolen works. 

Small businesses make up the majority of American businesses, 

many of which are family-owned. They could be farmers, restaurants, dry cleaners, or any number of other professions. Just 

like larger businesses, they face issues that need judicial resolution, such as nonpayment, breach of contract, and other issues that 

directly impact their bottom lines. 

Fortunately, a robust State court system exists to address business disputes. Larger companies and small businesses use a variety of measures to reduce the chances of theft and nonpayment, 

only turning to the courts when necessary. Litigation in America 

is expensive, and is not for the faint of heart. There are even State 

small claims courts for smaller value claims. 


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However, for most intellectual property disputes, only the Federal court system can hear legal disputes, and there is no equivalent small claims process. 

This has led to one category of American creators frequently 

being on the losing end of intellectual property theft, small intellectual property creators. 

Visual artists have identified the lack of such a small-claims 

process as a major detriment to their ability to hold those who infringe their works accountable. 

During the last Congress, there were two separate bills to create 

a small-claims system for low-value copyright claims. 

I am pleased that Congressman Jeffries has led the way this 

year on combined legislation, and that he and his staff have 

worked tirelessly with interested parties to incorporate a number 

of major changes to the legislation in order to improve its effectiveness and limit the ability of bad actors to abuse it. 

Earlier this year, the ranking member and I spoke about the importance of this issue for small creators. And I am glad to see that 

our colleagues have made so much progress. 

Today’s hearing will highlight all of this hard work and identify 

any potential remaining areas of concern. 

The committee’s goal, which I know is shared by Congressman 

Jeffries, is to implement an effective process for resolving smallvalue copyright claims. 

Just like owners of physical property, American creators deserve 

a remedy when their intellectual property is used without the appropriate compensation. 

It is now my pleasure to recognize the ranking member of the 

committee, the gentleman from New York, Mr. Nadler, for his 

opening statement. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Chairman, 5 years ago, you spearheaded a comprehensive bipartisan review of the copyright system that consisted of careful, 

thoughtful analysis of various provisions of the Copyright Code, as 

well as how the copyright system is working for creators and users 

alike. 

At the culmination of that review, a few areas of consensus 

emerged, one of which was the need to reform the music licensing 

system. 

With legislation to address that issue unanimously sent off to the 

President this week, we can move on to the next issue calling out 

for action, namely the need to establish a small claims court to resolve small dollar infringement claims. 

A fundamental principle of law is that there is no right without 

a remedy. But unfortunately, many copyright holders today, particularly many visual artists lack sufficient remedies to protect 

their rights. 

This is because the cost of pursuing infringement claim in Federal court, particularly for small creators, is far greater, as much 

as 10 times or more, than the expected damages they would receive 

in a successful suit, making it virtually impossible to protect their 

works. 

While the damages at stake in these infringement claims may be 

small in terms of sheer dollar amount, even a few thousand dollars 


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in uncollected royalties would represent a huge loss of income for 

someone like a photographer making just $35,000 or $40,000 a 

year. And few attorneys will take a case when such limited damages are at stake, because they would likely not recoup their costs. 

Even if the creator did successfully obtain judgment in his or her 

favor, the total cost of litigation would likely dwarf the damages 

awarded, making it a Pyrrhic victory, at best. 

The CASE Act seeks to address this important problem. 

This bipartisan legislation introduced by our colleague, Representative Hakeem Jeffries, would establish a claims court within 

the Copyright Office to hear a copyright suit seeking $30,000 or 

less in total damages. 

As envisioned by the CASE Act, this quote will be less expensive 

and much easier to navigate, even without an attorney, than Federal court. Based in large part on recommendations from the Copyright Office which conducted an exhaustive study of this issue, the 

bill would provide an affordable means for small creators to vindicate their rights. 

Although a small claims court would provide a more conducive 

forum for small creators to file suit, the court’s limited jurisdiction 

based on the bill’s fairly nominal damage limit, as well as the reduced cost that would be incurred in defending against an infringement claim, or in seeking a declaratory judgment that use of a 

copyrighted work constitutes fair use, should make it an appealing 

venue for copyright users as well. 

If, however, a defendant would prefer not to submit to the jurisdiction of the small claims court, the bill allows such defendant to 

opt out. 

In recognition of certain concerns that are expressed by some 

stakeholders, Representative Jeffries worked tirelessly to refine 

this legislation, and as a result, now includes a number of revisions 

suggested by these stakeholders, including the organizations represented by two of our witnesses today. 

These revisions include very heightened due process protections 

and provisions intended to reduce potential abuse of the system. 

Nevertheless, some stakeholders still have certain concerns about 

the bill. That is why I am pleased to be holding this hearing today, 

so that we can better understand these concerns, and, hopefully, 

find solutions that may be acceptable to all stakeholders. 

I am a proud cosponsor of this legislation, and I thank Mr. 

Jeffries for his outstanding leadership on this issue. 

I also want to recognize the efforts of Representative Judy Chu, 

who introduced similar legislation in the last Congress, as well as 

the other cosponsors of this bill. 

I look forward to hearing from our witnesses, and I hope that today’s hearing will help us lay the foundation for further action on 

this important legislation. 

I yield back the balance of my time. 

Chairman GOODLATTE. Thank you, Mr. Nadler. 

It is now my pleasure to recognize the ranking member of the 

Subcommittee on Courts, the Internet and Intellectual Property, 

the gentleman from Georgia, Mr. Johnson, and ask that perhaps he 

could, at the conclusion of his remarks, yield to the chief sponsor 

of the legislation. 


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Mr. JOHNSON OF GEORGIA. I would be happy to do so. 

Chairman GOODLATTE. The gentleman is recognized. 

Mr. JOHNSON OF GEORGIA. Thank you, Mr. Chairman. This hearing gives us an opportunity to examine the Copyright Alternative 

and Small-Claims Enforcement Act, also known as the CASE Act, 

which would provide copyright owners with an alternative to the 

expensive process of bringing infringement claims in Federal court. 

The CASE Act is supported by all types of the creators, including 

photographers, illustrators, songwriters, and authors. 

Currently, Federal courts have exclusive jurisdiction over copyright claims. Federal litigation is expensive, and many small creators cannot afford to enforce their rights. 

The Copyright Office provided a detailed report on this issue, 

and I thank them for their hard work, which has helped us work 

towards a legislative solution. 

Many of their recommendations are included in this bill. I am 

happy that stakeholders have been in negotiations about ways to 

further improve the bill. The most recent discussion draft of the bill 

includes many changes that attempt to address stakeholder concerns. 

While I am aware that there are still remaining concerns about 

the bill, I hope we can use this hearing as a way to continue to 

work together on the issue. 

I want to thank Congressman Hakeem Jeffries, Congressman 

Tom Marino, Congressman Doug Collins, and Congresswoman 

Judy Chu, as well as Congressman Ted Lieu for their work in putting together what this bill is as it is introduced today. 

I would now like to yield the balance of my time to the author 

of this important legislation, Congressman Hakeem Jeffries. 

Mr. JEFFRIES. Well, thank you, Congressman Johnson, for yielding. I thank the chairman, Mr. Goodlatte, as well as Ranking Member Jerry Nadler, and my lead Republican sponsor, Congressman 

Marino, as well as all of my colleagues who have worked hard on 

this legislation. 

Today, we are considering H.R. 3945, otherwise known as the 

CASE Act, which would create a fair and balanced forum for small 

creators to be able to vindicate their copyright under law. 

Copyright infringement is not a victimless crime. Photographers, 

illustrators, visual artists, writers, individual songwriters, musicians, all rely upon their creative works in order to put food on the 

table and support their families. But with every infringement, they 

lose an opportunity to do so. 

Unfortunately, under the current system, these creators are 

given a right without an adequate remedy. 

As reported in the Copyright Office report from 2013, many copyright owners are independent creators who have very small infringement claims, but these creators do not have the means to vindicate their rights and protect their works from infringement in an 

Article III Federal court system. 

Survey conducted by the American Intellectual Property Lawyers 

Association reveal that the median cost to pursue a copyright infringement lawsuit, with damages less than $1 million, is approximately $350,000. The CASE Act would contemplate providing a 


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remedy for people whose infringement claims do not exceed 

$30,000. 

Between the burden of attorney and court fees and the delay experienced, small creative artists and others who rely upon their 

copyright works as their bread and butter, are left without any vehicle or enforcement remedy. 

The CASE Act will help fill this void by establishing a voluntary 

alternative form for small copyright owners that will enable them 

to enforce and protect their content in a fair, timely and affordable 

manner, and would also afford respondents the ability to do the 

same. 

The forum will be headed up by a new entity called the Copyright Claims Board, the CCB, housed within the Copyright Office. 

It is designed to allow both pro se rights holders as well as pro se 

respondents to obtain a fair proceeding. 

With the simplified process, this does not require the personal 

appearance of either parties, the board proceeding would not only 

be advantageous for the rights holder, but also would advantage 

pro se respondents as well, as but would not be saddled with similarly high costs of District Court litigation. 

Because either party can easily opt out, the CCB satisfies the Article III and due process requirements of the Constitution and 

many safeguards have been built in to ensure that it will be fair 

and balanced, and above all else, it is consistent with our Article 

I, Section 8, Clause 8 responsibility to make sure that we promote 

the progress of science and useful arts in this context, allowing creators to be able to vindicate their rights under law. 

I yield back. 

Chairman GOODLATTE. We welcome our distinguished witnesses. 

And if you would all please rise, I will begin by swearing you in. 

Please raise your right hand. 

Do you, and each of you, solemnly swear that the testimony you 

about to give, shall be the truth, the whole truth and nothing but 

the truth, so help you God? 

Chairman GOODLATTE. Thank you. Let the record show that each 

of the witnesses answered in the affirmative. 

Our first witness is Mr. David Trust. Mr. Trust is the Chief Executive Officer of the Professional Photographers of America. 

Our second witness is Mr. Matthew Schruers. Mr. Schruers is 

the Vice President for Law and Policy at the Computer and Communications Industry Association. 

Our third witness is Ms. Jenna Close. Ms. Close is the Director 

of Photography at Buck the Cubicle. 

Our fourth witness is Mr. Jonathan Berroya. Mr. Berroya is the 

Senior Vice President and General Counsel for the Internet Association. 

And our final witness is Mr. Keith Kupferschmid. Mr. 

Kupferschmid is the Chief Executive Officer of the Copyright Alliance. 

Thank you. I look forward to hearing from all of you today. Your 

written statement will be entered into the record in its entirety, 

and we ask that you summarize your testimony in 5 minutes. To 

help you stay within that time, there is a timing light on the table. 

When the light switches from green to yellow, you have 1 minute 


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to conclude your testimony. When the light turns red, that is it. 

Time is up. And finish your remarks. Thank you very much. 

Mr. Trust, you may begin. 

TESTIMONIES OF DAVID TRUST, CHIEF EXECUTIVE OFFICER, 

PROFESSIONAL PHOTOGRAPHERS OF AMERICA; MATTHEW 

SCHRUERS, VICE PRESIDENT, LAW AND POLICY, COMPUTER 

AND COMMUNICATIONS INDUSTRY ASSOCIATION (CCIA); 

JENNA CLOSE, DIRECTOR OF PHOTOGRAPHY, BUCK THE CUBICLE; JONATHAN BERROYA, SENIOR VICE PRESIDENT AND 

GENERAL COUNSEL, INTERNET ASSOCIATION; AND KEITH 

KUPFERSCHMID, CHIEF EXECUTIVE OFFICER, COPYRIGHT 

ALLIANCE 

TESTIMONY OF DAVID TRUST 

Mr. TRUST. Thank you, Mr. Chairman. And Chairman Goodlatte, 

Ranking Member Nadler, and members of the committee, it is a 

pleasure to be here with you today. 

I have been asked to speak on behalf of Professional Photographers of America. We represent about 50,000 professional photographers, but in this particular instance, I have been also asked 

to speak on behalf of hundreds and hundreds of thousands of other 

small creators, including graphic designers and illustrators and 

other photographic groups that have joined together as a coalition 

of visual artists. Together, they make up the majority of America’s 

copyright communities. 

It is true that in terms of sheer number of creators, copyright is 

much more small business than it is large. And that is healthy. 

Our country’s creative diversity is a good thing; it is good for the 

economy; it is good for our society. And fostering abroad and diverse range of creators is the very foundation of copyright law. 

But the diversity is only of value if we are able to protect all of 

those creators. The harsh reality of copyright in America is that it 

works for some creators, less for others, and not at all for the majority. 

The problem is in the remedy for copyright. As it stands now, 

small creators who have seen their work used without permission, 

or just outright stolen, have had one path for relief, filing a lawsuit 

in U.S. Federal court. Of course, the reality is that path is no path 

at all. 

Nobody is going to sue in Federal court over an infringement 

that averages well under $3,000. The math simply works against 

most creators. 

And let’s remember, it doesn’t have to be big money to make a 

big difference. A $500- or $1,200 infringement can be the difference 

in paying the mortgage, or healthcare, or food on the table for the 

first family vacation in 5 years. 

The truth is, visual artists have, for decades, felt disenfranchised 

by America’s copyright system, and for good reason. Where there 

is no remedy, there is no protection. 

Now, we realize that this is an unintended consequence based on 

the evolution of copyright, and in particular, technology. 


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Nobody made a decision to leave out small creators, but with the 

CASE Act, we can make a decision to include them under the same 

umbrella of protections afforded other creators. 

If this supersonic, evolving-by-the-second, hyper-competitive 

business environment we all live in teaches us anything, it is that 

we will pay attention to the needs of small businesses or we will 

lose them. And let me rush to point out that being a real professional photography has little to do with the camera and everything 

to do with the years of training. The camera is perhaps the least 

of their tools. 

I can purchase a really nice drafting table. It doesn’t make me 

an architect. Small creators dedicate years, decades, even generations, honing a craft that enriches our lives. 

And here is a significant side note. Listen to this. Less than 5 

percent of professional photographers regularly register their work 

with the Copyright Office. Is it because they don’t value their 

work? Quite the contrary. 

Research indicates that copyright and protecting their work is 

one of the issues that keeps them awake at night. They don’t register because there is no viable remedy, which means 95 percent 

of possibly the largest class of copyright holder in America never 

pays a dime into the copyright system. 

Our system disenfranchises the majority of its consuming universe. Small claims is the start to turning that around. 

Are there concerns by others? I guess so, but it is hard to understand why. We are Americans. We believe in the protection of law. 

If you make and sell furniture for a living, we protect you from 

theft. If you make and sell electronics, cars, or clothing, and sell 

those on Amazon or Etsy or eBay, we protect you from theft. If you 

make and sell tacos from a truck around the corner from the Rayburn Building, we protect you from theft. 

Why, then, would we not create a remedy, a small claims process 

to protect hundreds of thousands of small creators who beautify 

and enrich and add color to our lives. 

Oh, and by the way, if someone doesn’t like the idea of participating in small claims, it is no problem. It is optional, just opt out. 

We depend on these creators, we need these creators. Let’s remember that when the Constitution what was drafted to include 

copyright, there were no motion pictures or software or networks. 

And don’t get me wrong, we stand with all creators and all creators 

deserve protection. But at the time of the drafting of the Constitution, the copyright superstars were the authors and illustrators and 

artists and composers and songwriters, followed 60 years later by 

the first multimedia creators, professional photographers. 

Chairman Goodlatte and members of the committee, we all see 

the work of these small creators almost from the moment we open 

our eyes in the morning until we close them again at the end of 

the day. 

For decades, generations, these small creators have been unprotected and underrepresented by our copyright system. We are at a 

crossroads. I truly believe that we will stand with our small creators or we will watch them disappear one by one, and with them, 

the color and the life that they bring to our world. 


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America’s copyright system should be a beacon on the hill for the 

rest of the world, and creating a small claims remedy through the 

CASE Act puts us into position to become just that. 

You are very gracious. Thank you so much for your time. 

Chairman GOODLATTE. Thank you, Mr. Trust. Mr. Schruers, welcome. 

TESTIMONY OF MATT SCHRUERS 

Mr. SCHRUERS. Thank you. Chairman Goodlatte, Ranking Member Nadler, members of the committee. My name is Matt Schruers. 

I’m the VP for Law and Policy at CCIA, which represents Internet 

technology and communications firms. 

Thank you for the opportunity to discuss this claims proposal 

today. CCIA has a significant interest in properly scoped copyright 

remedies. Our members play a critical role in the existing creative 

landscape providing services, tools, and platforms that enable and 

facilitate users’ ingenuity expression and creativity worldwide. 

These technologies afford the instantaneous and often free-to-theuser access, providing opportunities to reach out and engage with 

audiences around the world in ways not possible without the Internet. 

A new remedy for copyright plaintiffs should be considered in the 

context of the existing remedies available. That copyrights already 

robust remedies could be underserving plaintiffs is somewhat difficult to reconcile with the current wave of Federal copyright litigation. 

2018 research found that serial litigants filing shotgun style, 

multiparty Doe claims frequently on pornographic works accounted 

for nearly half of all U.S. copyright litigation from 2014 to 2016. 

That is thousands of lawsuits against hundreds of thousands of potential defendants, many wrongfully accused. 

But let me be clear, that we recognize troll plaintiffs are not the 

plaintiffs about whom we are concerned today. However, Title 17 

remedies are available to all, and can be invoked by both the most 

and least meritorious litigant, including those for whom litigation 

is a business model. 

So while litigating unauthorized literal use of visual works appears to be the intended use case here, we are also mindful of other 

potential plaintiffs. And the bill does contemplate that trolls may 

utilize the small-claims process. 

We could also anticipate small claims pertaining to noncommercial digital uses of works. Whereas the DMCA currently is often 

used to conclude such disputes, a small claims tribunal might result in internet users and small businesses customary, lawful, online activities becoming small claims fodder, including disputes alleging potential secondary liability and nonliteral infringement. 

The noncommercial circulation of internet memes, commentary 

on cultural and political matters, social media debates and internet 

plagiarism accusations are not particularly suitable nor worthy of 

Federal resolution, but those, too, could be expected in a small 

claims process. 

Users should not fear litigation for participating in lawful online 

social media discourse. And businesses using online platforms to 


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reach their customers should not fear another venue where they 

can be targeted competitors with specious IP claims. 

So while CCIA is not presently in a position to support H.R. 3945 

or the subsequent discussion draft, we appreciate the opportunity 

to discuss the proposal. And I will note briefly what CCIA regards 

as the most significant outstanding points. 

As the written statement I have submitted describes in greater 

detail, those points are the negative option, opt out model of the 

process, the authority of the Copyright Office to increase or remove 

the cap on the number of suits that can be brought, as well as the 

size of statutory awards. 

And permitting statutory awards without timely registration, 

given the importance of registration data, particularly to digital 

services in finding creators and ensuring that they are properly 

compensated for their creativity. 

So in conclusion, CCIA believes that educational resources, perhaps in the mold of PTOs and venture assistant center, and a 

lower overall cost of registration, as well as efforts to encourage, facilitate, and streamline the registration, would facilitate better outcomes for copyright plaintiffs. 

We share the committee’s goals in ensuring that creators have 

both the incentives and the tools to create and distribute their creativity. And we look forward to working with you in furtherance of 

that goal. 

I am happy to take any questions. 

Chairman GOODLATTE. Thank you, Mr. Schruers. 

Ms. Close, welcome. 

TESTIMONY OF JENNA CLOSE 

Ms. CLOSE. Thank you. 

Mr. Chairman, Mr. Ranking Member, and distinguished members of the committee. 

My name is Jenna Close, and I am a commercial photographer 

based in San Diego, California, Congressman Issa’s district. 

I appear before the committee today on behalf of myself and the 

American Society of Media Photographers, of which I am a past national board chairperson. 

I am here to express support for H.R. 3945, the CASE Act. At 

the outset, I want to thank you and other members for your interest in helping provide individual creators and small businesses 

with the legal tools they need to protect their creative works from 

those who use them without permission or compensation. 

I am not an attorney. I am not a copyright lawyer. I am not here 

today to discuss legal specifics that are spelled out in H.R. 3945. 

I am here to explain why individual creators like myself are so 

frustrated when it comes to the operation of our current copyright 

system. 

Quite simply, we have a right to protect our creative efforts 

under copyright law, but we are routinely unable to enforce those 

rights because of the cost and complexities of bringing a lawsuit in 

Federal court, the only place to bring a copyright infringement suit 

today. 

As an independent creator, I appreciate and believe in the idea 

of copyright. I always retain my copyright in my contracts with cliVerDate Sep 11 2014 23:57 Dec 27, 2018 Jkt 033419 PO 00000 Frm 00067 Fmt 6633 Sfmt 6602 E:\HR\OC\A419.XXX A419

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ents. At the same time, I do not routinely register my works. I consider myself an intermittent registerer. 

I would, however, register my images more regularly if given a 

streamlined, reliable, and affordable path for pursuing infringement. 

Copyright registration is an investment in time and money, and 

yet with the present situation, it is rare that there is a positive return on that investment. 

Regrettably, like so many other visual artists, my partner John 

and I often find our works infringed, not only online, but also in 

print. 

We have even witnessed our photos enlarged as a backdrop to a 

competitor’s trade show booth, while our paying client was rightfully using the same art work at the same trade show in their own 

booth. 

To help the committee better understand the scope of infringements my colleagues and I face, I did a little experiment. 

A couple days ago I did a so-called reverse image search on one 

of my most frequently infringed images. A reverse image search involves uploading a photo to images.google.com. Google then returns 

a list of every website on which that exact image is found. 

During this most recent search, I found a single image of mine 

was being used without permission on 41 different websites. Of 

those 41 websites, 18 were large companies. And that does not include any print infringements that may be out there. 

Copyright infringement cost visual artists revenues needed to 

keep their businesses in the black, and to provide for their families. 

Our profit margins are often slim. 

To give you some perspective, my business needs to bring in $4,000 a month simply to be in the black. We typically bring in 

from $5,000 to $8,500 a month or $60,000 to $100,000 a year. 

From this, come the salaries of two owners and our many expenses, which in the photography industry are not small. 

Each year, our income fluctuates, and you can see how the profit 

loss from just one infringement worth a few thousand dollars 

makes a big difference in our bottom line. 

I am convinced that copyright violations, and the inability to reasonably pursue them, have bred frustration and ultimately disregard for intellectual property rights. 

Large entities are well aware that small creators like myself are 

unlikely to sue, and if they do, that they are easily bled dry of resources. It is evident in the cease and desist letters that are ignored, in the emails requesting a license fee that are never answered. 

Why do visual artists so often forego legal action? The answer is 

simple. Federal court litigation is too burdensome and too expensive. The cost of bringing the suit alone would likely dwarf any potential favorable verdict. 

The reality of the system today makes infringement losses a cost 

of doing business, and not one that many creators can afford. The 

time to end this historic inequity is now. 

As I see it, the CASE Act is our best shot at ensuring that visual 

artists, for the first time, will be full participants in the copyright 

marketplace. 


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I believe that if Congress enacts a small claims bill, individual 

creators and small business people will participate in great numbers. I know that I would. 

The sponsors of H.R. 3945 and the Copyright Office deserves 

much credit for their hard work developing this legislation and 

bringing it to this critical juncture. 

It is refreshing and inspiring to see that after identifying a real 

world problem, Congress is addressing the issue and considering 

this legislative remedy. 

For those organizations that oppose or criticize this legislation, 

I ask that you put yourself in my place. I have a statutory right 

to protect my intellectual property, but no effective mechanism for 

doing so. 

How would you feel if you were in the same position? 

This bill will directly benefit a class of people who are crucial to 

your members’ future business success. 

Why would you oppose it? Thank you. 

Chairman GOODLATTE. Thank you, Ms. Close. 

Mr. Berroya, welcome. 

TESTIMONY OF JONATHAN BERROYA 

Mr. BERROYA. Thank you, Chairman Goodlatte, Ranking Member 

Nadler, and distinguished members of the committee. 

I appreciate the opportunity to appear before you today to discuss the Copyright Alternative and Small-Claims Enforcement Act 

of 2017. 

My name is John Berroya, and I am Senior Vice President and 

General Counsel at Internet Association, or IA. 

IA represents over 40 of the world’s leading internet companies, 

and we support policies that promote and enable internet innovation, and are dedicated to advancing public policy solutions that 

strengthen and protect internet freedom, foster innovation and economic growth, and empower people. 

In this and other contexts, IA strives to advance the interests not 

only of its member companies, but also the billions of individuals 

and small businesses that benefit from our member companies 

services and products. 

Importantly, the people who rely on our member services include 

countless individuals and micro businesses, who are creators and 

users of copyrighted works that will be potentially impacted by the 

proposed legislation. 

We recognize the benefits that would accrue to these communities from the ability to resolve small claims in a more efficient 

and effective manner. 

However, we are also mindful that bad actors will seek to abuse 

any process created to achieve those benefits. 

With that in mind, our goal today is to advocate for changes that 

we believe would help ensure that the bill minimizes opportunities 

for misuse and truly benefits individuals, small businesses and entrepreneurs across all industries in their roles, both as creators and 

as users of copyrighted works. 

To begin with, I would like to thank the bill sponsors, the committee leadership, and their staffs, for the diligent work that they 

performed on this bill. 


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I would also like to commend the Copyright Office for its detailed 

analysis and report that have supported and informed this legislative process. 

The goals of the CASE Act are laudable, and to that end, IA has 

demonstrated its support by engaging in detailed conversations 

with committee staff and the bill sponsors over the past 6 months. 

We appreciate both the ongoing opportunities to share our feedback with the committee, the changes that have already been made 

to improve the draft text as well. 

IA remains convinced that crafting a bill that is effective and 

workable for all parties is an important goal, and we and our member companies will continue to seek common ground with other 

stakeholders on this important issue. 

My testimony identifies a handful of remaining concerns with the 

legislative draft that we look forward to working with the committee to address. 

Our three core recommendations can be summarized as follows: 

First, due process and fairness are fundamental to the success of 

any legal process, and we have concerns about the bill’s opt-out 

process. We worry that it could, more often than not, have the unintended consequence of helping rights holders secure monetary 

damages against people who are just as small and legally unsophisticated as the people the bill is designed to protect. 

To ensure that the bill protects all of the relevant interests, we 

respectfully suggest that the text be amended to require both parties to agree to adjudication by the CCB and to provide a more robust appeals process. 

Second, we believe that the current balance established by Section 512 of the Copyright Act plays an essential role in allowing 

platforms to respond to claims of infringement without forcing 

them to play the de facto role of adjudicator of those claims. 

If the bill remains silent as to whether initiating a claim through 

the CCB can be used to prevent online platforms from restoring access to allegedly infringing material, there is a risk that some 

rights holders will exploit that lack of clarity and use this low cost, 

quasi-judicial process, to substantially extend the amount of time 

that allegedly infringing material remains unavailable. 

Accordingly, we will suggest amending the bill to clarify that the 

proposed small claims process does not interfere with the operation 

of Section 512. 

Third, and finally, allowing claimants who have not registered 

their works in a timely manner to seek statutory damages deviates 

from the longstanding copyright policy and would give rise to unintended consequences. 

As the Copyright Office has previously concluded, encouraging 

registration advances several policy goals, by making statutory 

damages available to all businesses regardless of size, the current 

version of the bill can disincentivize the registration of works, and 

inadvertently encourages parties to bring cases before the CCB 

that would have been too risky to file in an Article III court due 

to the unavailability of statutory damages. 

In prior discussions with the committee, IA offered additional 

recommendations that would bring the proposed small copyright 


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claims adjudication process more closely in line with other small 

claims courts. 

Eliminating discovery and reducing the maximum of monetary 

damage awards are two issues that we had raised. But for the sake 

of brevity, my testimony focuses on the three core points that I 

mentioned a moment ago. 

In sum, IA believes that adopting these recommendations would 

not only ensure the basic fairness of the process, but would also 

make for a more workable regime for all of the parties involved. 

I hope that my testimony today will offer a useful perspective, 

and I look forward to your questions. 

Thank you. 

Chairman GOODLATTE. Thank you, Mr. Berroya. Mr. 

Kupferschmid—I am sorry I am not getting your name right. 

Please forgive me—welcome. 

TESTIMONY OF KEITH KUPFERSCHMID 

Mr. KUPFERSCHMID. Chairman Goodlatte, Ranking Member Nadler, and members of the committee, thank you for holding this 

hearing and for the opportunity to testify before you today to discuss the importance of H.R. 3945, the Copyright Alternative and 

Small-Claims Enforcement Act, or the CASE Act. 

I am Keith Kupferschmid, CEO of the Copyright Alliance, a nonprofit, nonpartisan organization dedicated to advocating policies 

that promote and preserve the value of copyright. 

I testify here today in support of the CASE Act. For over a decade, individual creators and small businesses have been advocating 

for a change in the copyright law to address an inequity that has 

routinely provided them with rights but no remedies. 

The CASE Act would make very targeted, very modest changes 

to the copyright law to address this inequity, and give America’s 

creators the tools to protect the fruits of their creativity. 

The CASE Act is based on legislation recommended by the Copyright Office. It would create a small claims tribunal within the 

Copyright Office called a Copyright Claims Board, or CCB, that can 

hear not only claims of infringement, but also declarations of noninfringement, as well as counterclaims and defenses like fair use. 

The bill makes clear that what the CCB cannot hear are claims 

brought against DMCA-compliant internet platforms for the infringing acts of their users. 

The CASE Act creates a much less formal, cost effective, and 

streamlined process, than exists in Federal court. The use of attorneys is optional and the process is so simplified that it is unnecessary to retain counsel. 

Proceedings will usually be conducted electronically so the parties can participate remotely, and discovery will be extremely limited. 

The most important feature of the bill is that it is completely optional. That is right, optional. 

If a party doesn’t want to initiate or to defend the copyright case 

before the CCB, she can opt not to participate in the process. 

To the extent that anyone has any concerns with the bill, the fact 

that participation is optional should address most, if not all of 

them. 


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Another very important feature of the bill is that the CASE Act 

dramatically limits an alleged infringer’s financial exposure by capping damages and prohibiting attorney fee awards. 

The bill provides that statutory damages for infringement of one 

work cannot exceed $15,000, a limit for infringers that is exponentially lower than the $150,000 recovery that is permitted under existing law. 

The bill also provides that the CCB cannot award a total of more 

than $30,000 in damages in any one case, which is very different 

than Federal law where there is no cap at all. 

The availability of the statutory damages is essential, given the 

difficulties of proving actual damages to limited discovery rules, 

and the fact that most parties will not be represented by counsel. 

While some level of judicial review of CCB decisions is appropriate, allowing these decisions to be subject to extensive, overly 

broad judicial review in Federal court would undermine the very 

purpose of the bill and destroy the effectiveness of the CASE Act. 

It would enable respondents to relitigate their case in the very 

same Federal courts that they could not afford in the first place. 

The bill also contains a number of provisions designed to help 

minimize the chance of judgments, and to ensure that the CCB 

proceedings are not subject to abuse. 

I would be happy to discuss each of these in more detail as necessary. In an effort to get the bill passed this year, we participated 

in negotiated sessions with the internet Association and CCIA that 

was presided over by Representative Jeffries and his staff earlier 

this year. 

We listened to their concerns and drafted language with them to 

address virtually all of them, even though we thought most of the 

concerns were unfounded and changes to the bill were unnecessary. 

The only changes we did not incorporate were the ones we 

thought were counter to the fundamental premise of the bill, and 

that would destroy its effectiveness. 

The resulting draft, which is referred to as the discussion draft, 

incorporates numerous changes intended to address these groups’ 

concerns with the understanding that if we agreed to these 

changes, IA and CCIA would be supportive of the CASE Act, or at 

the very least, neutral. We are still waiting for them to live up to 

their side of the bargain. 

The CASE Act is a legislative priority for hundreds of thousands 

of photographers, illustrators, graphic artists, songwriters and authors, as well as a new generation of creators including bloggers 

and YouTubers across the country. Today, they have rights but no 

remedies. 

The CASE Act will go a long way to restoring their faith in the 

copyright system. We urge to you pass the CASE Act, and look forward to continuing to work with the committee as the bill moves 

forward. 

I am happy to answer any questions. 

Chairman GOODLATTE. Thank you. We will now proceed under 

the 5-minute rule with questions. And I will begin by recognizing 

myself for 5 minutes. 


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Mr. Schruers, Ms. Close’s testimony gives an example of corporate infringement of a photograph at a trade show, what is the 

concern there about opt-in versus opt-out? 

Why should a corporate infringer effectively have free use of a 

work by not opting in leaving an artist with no effective remedy? 

Mr. SCHRUERS. Mr. Chairman, thank you for the question. 

As I mentioned in my statement, remedies are going to be available to all plaintiffs, and so while the presence of an opt-out framework might be noncontroversial in one particular context, we can’t 

necessarily be certain that they would not be problematic in all 

particular contexts. 

And so, for example, some of CCIA’s larger members probably 

could relatively easily manage an opt-out process because we already have a variety of copyright regulation compliance obligations, 

and one more is not particularly difficult. 

That doesn’t necessarily go for noncommercial internet users and 

small businesses who may well be engaging in lawful uses of work, 

but are insufficiently familiar with the process. It is worth noting 

that the general practice with DMCA notices, which are fairly common now, is that users who are subject to a notice frequently simply don’t respond to the notice, their content comes down, the 

rights holder, a putative rights holder, gets a de facto injunction 

and the parties move on. This actually changes the affected default 

action which is that a party must respond. 

And so, we are concerned that end users on the internet may be 

unprepared for that kind of process, and not actually be acting voluntarily in waiving a response. 

And it might also have a knock-on effect on how parties respond 

to DMCA notices, which arguably would not be a desired outcome. 

Chairman GOODLATTE. Ms. Close, you want to respond to that? 

Ms. CLOSE. Parties already don’t respond to DMCA notices, and 

I just—basically, what I would like to say is I think that there 

needs to be a coming together in a common ground to determine 

infringement or not, that is fair for both parties. So I believe that 

that would require somebody to come and participate. That is all 

I have to say on that. 

Chairman GOODLATTE. Mr. Trust. 

Mr. TRUST. Yes. Mr. Chairman, I have to admit that I get confused by the opt-in/opt-out discussion, by the concern with opt-out. 

By definition, opt-out is optional. It is optional. And so the discussion about opt-out and opt-in, to me, is a little difficult when we 

have hundreds of thousands of creators who are not protected 

under the current system. But the concern seems to be that we are 

given infringers a responsibility—and let’s be honest, we are talking mostly about infringers here—the responsibility for participating in some way. That is, to acknowledge that there is an issue. 

To have just opt-in, someone who is guilty of an infringement, who 

has taking someone’s work and used it—— 

Chairman GOODLATTE. You would never hear a word from them, 

right? 

Mr. TRUST. You would never hear anything from them. I mean, 

they would just ignore it. Which, by the way, is exactly where we 

are right now, right? 


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And so the only thing that actually makes this useful is that optout provision. 

Chairman GOODLATTE. Come back to you, Ms. Close. Do you feel 

that those who have infringed your works would ever opt-in to litigation with you when they have already stolen your images? 

Ms. CLOSE. Actually, yeah, I do think that they would. I mean, 

I would hope that they would. I know that—— 

Chairman GOODLATTE. Mr. Trust is suggesting that they have ignored your right in the first place. They are also going to ignore 

the notice, if they have to opt-in. 

Ms. CLOSE. Oh, if they have to opt-in. Oh, yes—excuse me—yes, 

I don’t think they would opt-in. I think that they have to be held— 

I think they would have to opt-out. 

If they opt-in, which is already where we are, it is crickets. It is 

crickets out there. The DMCA notices have no teeth. I can email 

people, and I get no response. I don’t see that changing. 

Chairman GOODLATTE. Mr. Kupferschmid? 

Mr. KUPFERSCHMID. If I may just quickly respond here? 

Chairman GOODLATTE. Sure. 

Mr. KUPFERSCHMID. So I mean, the difference between opt-out 

and opt-in is all about getting a response. Having someone pay attention. That is all the difference is, right? 

So if we think if they pay attention, if they are required to actually just look at it and read it and understand the consequences of 

it, then we think they will participate in the system. The problem 

is they don’t do that. They look at it and they go, I am an infringer. 

I am just going toss this to the side. 

We think the cap on damages, the no-attorney fee awards, the 

streamline proceedings, and a bunch of other benefits that this 

process has to offer are sufficient that they would participate in the 

system, if they review. But right now, they just ignore it. And that 

will continue if this is opt-in. 

Chairman GOODLATTE. Okay. Well, my time is expired. 

The chair recognizes the gentlewoman from California, Ms. Lofgren, for 5 minutes. 

Ms. LOFGREN. Thank you very much. This is a very helpful hearing, and I appreciate that we are having it. 

Obviously, there are some people who have written to us that are 

not panelists. It is impossible to include everybody, so I am not 

criticizing that, but I would like to ask that the letters from Engine, from the Consumer Technology Association, and a letter 

signed by the American Library Association, the American Research Libraries, The Association of College and Research Libraries, the Authors Alliance, Engine, and several others be submitted 

to the record. If I may, without objection, Mr. Chairman. 

Mr. ISSA [presiding]. Without objection, they will all be placed 

into the record. 

Ms. LOFGREN. I will note, the questions posed I think are 

thoughtful ones and need to be addressed in these letters. 

I will note that the libraries point out, and they are probably correct, that Rule 53(a)(1)(A) of the Federal Rules of Civil Procedure 

would allow for a special master that would actually serve the 

same function. 


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I would just note that that hasn’t happened, which is why the 

authors have moved forward with this. And I don’t think that is 

actually a realistic substitute for what is being discussed here, although, I am sure the librarians advanced it in good faith. I love 

librarians. 

I do think there is value in having a small claims type of proceeding, but I am also struck by the concerns expressed about the 

amount of statutory damages and whether—I mean, listening to 

your testimony, Ms. Close, which was compelling, by the way—good 

for you—it wouldn’t take very many damages to equal your entire 

revenue stream for a year. 

And so would that really be a disincentive for a firm your size 

to actually register. And I think that is something that needs—you 

know, a bill is the beginning of a process, not the end of a process. 

I think that needs more discussion and to flesh out. 

I am concerned about the issues that have been raised with 

trolls. And we have seen that in the patent environment, where 

you can actually go in with not much of a case, and just keep hitting people. And it is not the legitimate people, like you. It is people who take advantage of it as a business model. And I think we 

need to scrub this with that point of view, not the legitimate people 

such as you, but how can this system be abused. Because if you set 

up a system, somebody is going to try and game it, and how are 

we going to prevent that from happening? 

I also am concerned, and maybe there is the—maybe we can deal 

with this in defining how the opt-out is crafted. I mean, you talked 

about some corporation stealing your stuff. Presumably, you know, 

they are run by grownups. They have a responsibility to respond. 

That is a different environment than, you know, a teenager—I am 

not saying it is proper—but on Facebook using an image. 

The level of information, profit and abuse is completely different. 

And how do you, you know, accommodate innocent use—wrongful— 

but relatively innocent use by small parties in a way that doesn’t 

fuel the trolls that have been expressed. I also—there is fair use 

issues, and I am concerned about how that will be addressed in the 

proposed board. 

And I will just give a personal example. My daughter has twins. 

And the twins and my son-in-law were at a restaurant, and music 

came on, and—they were 18 months old. They were dancing to the 

music. It was really cute. And my daughter posted it, because it 

was adorable. And Facebook took it down because the music was 

in the background. 

Well, that was fair use. I mean, it was a 15-second little thing 

with cute babies and my son-in-law, but that is fair use, and there 

is a rule for fair use. How are we going to ensure that those findings in the board without an appellate provision is consistent with 

what is being—what has—fair use is a judicial doctrine. How do we 

keep the fair use judicial doctrine in play with the copyright board 

when it hasn’t actually—there is no appeal from it? 

So those are some of the questions that I have. I don’t think they 

can be answered today, but I think as we move forward, perhaps 

we can have discussion with the authors, all of you, and the other 

people who were not able to be witnesses today, to see how those 

legitimate questions can be addressed while still preserving the 


SSpencer on DSKBBXCHB2PROD with HEARINGS
18 

very, I think, very useful goal of having a remedy that is accessible 

to artists—especially small artists—to get compensation. 

So I thank you all for your testimony and for letting me throw 

my questions that there is now no time to answer out into the public arena. And I know that Mr. Jeffries and I will have a chance 

to discuss them further as well. 

And I yield back, Mr. Chairman. 

Mr. ISSA. In the prerogative of the chair, Ms. Close, if you had 

any response you wanted briefly, please. 

Ms. CLOSE. Yes, thank you. Briefly, I am not going to address the 

legal stuff, but I would just like to remind every that photographers, the ones that I know, myself included, the ones that I 

have worked with at ASMP, we are not interested in spending a 

ton of time dealing with this. 

We are in this business because we love making images. And certainly not—they say, if there is anything else you can handle doing, 

you like doing, do that. It is not an easy industry. 

So I just want you guys to remember that in the context of what 

we are looking at here. I honestly, and I am speaking for myself 

personally, if you have shared something of mine on the Facebook 

and you are just an innocent person, I am okay with that. I am 

not—I don’t have the time, interest, or inclination to go after every 

tiny infringement. 

I am talking about larger companies, larger people. I am talking 

about major theft of my work. So I just want to put that out there 

as you continue to discuss—and I appreciate that you will continue 

to discuss this—that really what we want to do is get back to our 

jobs. 

Ms. LOFGREN. Mr. Chairman, if I may ask for 30 seconds, please. 

Mr. ISSA. Without objection. 

Ms. LOFGREN. I appreciate that, and I actually completely believe 

you. It is just that when we devise these systems, we have got to 

think about not you, but a schemer. How do we prevent that? And, 

you know, unfortunately anything you build, if it can be scammed, 

it will be scammed, so we need to think in advance about that. 

And I just want to make sure you know I wasn’t questioning 

your good faith in any way. 

Mr. ISSA. 10 seconds. 

Mr. KUPFERSCHMID. Just 10 seconds. Right now, if your daughter 

wants to challenge that she has no remedy. She is not going to go 

to Federal court for that. We create the CCB, she could. She 

wouldn’t need an attorney. She could say, Hey, wait, this is fair 

use. 

Ms. LOFGREN. Actually, she is an attorney, but—— 

Mr. ISSA. I would like to thank all of the attorneys in the room. 

I will note that currently, it does not opt-out noncommercial use, 

so Facebook would be subject. So notwithstanding the gentlelady’s 

view that she wouldn’t go after it, I will say for one, there would 

be somebody who would. 

I am now going to take the prerogative and stay on this side and 

go to the gentleman from Georgia, Mr. Johnson. 

Mr. JOHNSON of Georgia. Thank you, Mr. Speaker. 

Mr. ISSA. Doug, do you mind? I didn’t see you. I apologize. 

No? Mr. Johnson. Go ahead. 


SSpencer on DSKBBXCHB2PROD with HEARINGS
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Mr. JOHNSON of Georgia. Thank you. I will gladly yield to my 

friend from—— 

Mr. COLLINS. I will go after my friend from Georgia. You can go 

right ahead. I will be the next Georgia. 

All I got to say is, Go Dogs. 

Mr. JOHNSON of Georgia. Ms. Jenna Close, thank you for taking 

your time and expending your resources, which is time and money 

to come here and to testify on this very important issue of concern 

to many people, small business owners like yourself. You are really 

at the heart of our communities. Small businesses collectively constitute the heart of our communities in terms of commerce. And I 

appreciate what you are doing. And I understand the struggles of 

being in a small business. 

Is the image of your work that you talked about you saw posted 

on those 41 websites, 13 or 11 of which were major corporations, 

I think I heard you say. 

Ms. CLOSE. Eighteen. 

Mr. JOHNSON of Georgia. How many? 

Ms. CLOSE. Eighteen. 

Mr. JOHNSON of Georgia. Eighteen of the 41 are major companies 

using your images for some commercial purpose, and making 

money based upon exploiting your work. 

Have you ever considered seeking redress in court for the infringement of that particular piece of work? 

Ms. CLOSE. Honestly, I have not done that. And I will tell you 

why. Ever since I started my business, I have been involved with 

ASMP, so I have been a member of the national board for 6 years, 

7th as an ex-officio, and 2 years as chair. 

And during that time, I went to many board meetings where we 

discussed the issues with copyright registration and infringement. 

And then as my time as chair, this was the number one question 

that I fielded from members and had discussions with members. 

So I was aware of the limitations of what I could do—— 

Mr. JOHNSON of Georgia. In terms of how much it is going to cost 

you? 

Ms. CLOSE. I can’t afford it. It would bankrupt me. 

Mr. JOHNSON of Georgia. Do you have any idea how much it 

would cost to pursue one of these cases in court? 

Ms. CLOSE. In Federal court? 

Mr. JOHNSON of Georgia. Yes. 

Ms. CLOSE. I have heard anywhere from $100,000 to a half a million. 

Mr. JOHNSON of Georgia. Now, the CASE Act would enable a creator who did not register their work to obtain statutory awards. 

Some suggests that this might enable abuse of the Copyright 

Claims Board. 

What reason might you or your fellow creators have for choosing 

not to register a work with the Copyright Office? 

Ms. CLOSE. What reason would I choose not to? 

Mr. JOHNSON of Georgia. Yes. 

Ms. CLOSE. Because registering my copyright is an investment in 

time and money. 

Mr. JOHNSON of Georgia. How much does it cost? 


SSpencer on DSKBBXCHB2PROD with HEARINGS
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Ms. CLOSE. Yes. And as a business person, I have to look at 

whether this investment is worth my time and money based on the 

return. And right now, it is not the case. 

If I had an avenue where I could reasonably expect the process, 

what was going to happen, I get to understand where that investment was, I would register more frequently. 

I am basically considering myself to register on principle, because I want to believe that it is right and that it works. But in 

all honesty, for me, it does not. 

Mr. JOHNSON of Georgia. Thank you. Mr. Trust, what is the average annual income of the artists that you represent, and how does 

that compare to the cost of litigating a copyright case in Federal 

court? 

Mr. TRUST. Well, for our members, it is $34,000 a year. They 

work on average more than 50 hours a week. They earn about 

$34,000 a year. And the idea, quite honestly, Congressman, of litigating is something that they would think about but very, very 

rarely actually undergo, undertake. And simply because, and forgive me for the analogy, you know, we at PPA, and all the associations, we sort of have our hands in the chest cavities of these businesses, these small businesses. And they are the chief production 

officer, chief marketing officer, chief technology officer, chief executive officer, the chief handyman, and the housekeeper at their various studios. They are swimming as hard they can to keep their 

heads above water. 

So the idea of stopping and, first of all, looking for every infringement that is out there, and then trying to bring those to Federal 

court in some way is just—they have the opportunity to shoot and 

make money or to try to litigate. And so the average cost is tens 

of thousands of dollars for attorneys’ fees, and then bringing that 

to fruition very often averages more than $300,000 to $350,000 in 

Federal court. 

Mr. JOHNSON of Georgia. How often are the artists that you represent infringed upon, their work? 

Mr. TRUST. Well, I mean, I think that is the right question, to 

be honest. Ninety-five percent say that copyright is important to 

their success. Ninety percent say that they have been infringed 

multiple times over the last 5 years, 90 percent. I mean, it is not 

something that they don’t experience. And this is one of the things 

that keeps them awake at night. They put this right at the top of 

their list, Congressman, in terms of what worries them. 

Mr. JOHNSON of Georgia. How frequently do these artists that 

you represent go to court to actually seek redress? 

Mr. TRUST. You know, forgive me for not having a specific number. I can tell you very, very rarely. Well, first of all, about 3 percent register their copyright. So you have to do that before you are 

going to Federal court. And so it is extremely rare when a photographer is able to go to court. They don’t not register because they 

don’t value their work; they don’t register because, if they do, there 

is no way for them to actually pursue it anyway. They basically 

would have to stop business. They would have to stop shooting. 

They stop marketing. Stop production. Stop everything to try to 

pursue this one case. It is just too much to ask of small creators, 

we think. 


SSpencer on DSKBBXCHB2PROD with HEARINGS
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Mr. JOHNSON of Georgia. So a right without a remedy is like an 

illusion? 

Mr. TRUST. The right without—I mean, I think that there is a 

right without a remedy. I am sorry, is that what you are asking? 

Mr. JOHNSON of Georgia. Yeah. A right without a remedy is like 

an illusion. 

Mr. TRUST. There is no protection there, you are right, Congressman, and that is the problem. 

Mr. JOHNSON of Georgia. I yield back. 

Mr. ISSA [presiding]. The gentleman’s time has expired. But on 

that note, we close with a high note on a right without a remedy. 

And now we go to the other gentleman from Georgia, another go 

dawg. 

Mr. COLLINS. There we go. 

And there are some of us in here who want to find a remedy. So 

this is something that I appreciate being an original co-sponsor of 

the CASE Act, and I think it is very important for small creators 

to have this level playing field. 

My friend, Hakeem, and I have—we have sort of taken up this 

cause a little bit over time, and I appreciate him bringing this forward. Along with Reps Marino and Chu and Smith, we have been 

working on this bill, and I do believe there is a path forward. And 

I believe there is a path forward that all sides can come to an 

agreement on. And this is some of the things that I want to focus 

on just for a moment, and especially Mr. Berroya and Mr. 

Schruers, if you could help from the computer side and from the 

internet side. 

We have been working on this. The discussion draft makes a lot 

of changes or makes many changes to address issues that were 

flagged that you all have flagged because there was a concern. One 

I have is what do you think of the provision that would limit the 

number of claims filed in 1 year? Mr. Schruers? 

Mr. SCHRUERS. I am happy to take that first. 

Mr. COLLINS. Yeah, you first, and then—— 

Mr. SCHRUERS. Thank you for the question. As my written statement explains in greater detail, that is a valuable step forward. It 

was not a change that CCIA recommended, but it was put forward 

in an attempt to respond to concerns about trolls that had been 

raised. 

One of the characteristics of IP troll litigation is the extensive 

use of proxies, assignees, and other shell entities to avoid identifying the real party in interest. And so while we think that is a 

step forward, some provision that would strengthen that—the prohibition so that the real party interest cannot be disguised so that 

the cap could not be circumvented by assignment or other use of 

proxies would be an important change. 

Mr. COLLINS. Mr. Berroya. 

Mr. BERROYA. Thank you, Mr. Congressman. I would echo Mr. 

Schruers’ response, and in addition to that, while the provision 

that you referenced is helpful in addressing trolling-type behavior, 

one of the key concerns that I outlined in its testimony is the importance of protecting small players on both sides of the V, if you 

will. 


SSpencer on DSKBBXCHB2PROD with HEARINGS
22 

So imagine, if you will, a grandmother who is, you know, living 

in Boca Raton and she supplements her retirement income by embroidering versions of iconic photos onto pillows, and she sells 

them, and that is the business that she uses, again, to supplement 

her retirement income. If the bill is opt-out, as it is currently drafted, the provision that you are referring to doesn’t help her if 

through the opt-out process she doesn’t understand what is being 

put in front of her. 

She gets a letter from a board that she has never heard off in 

Washington, D.C., she thinks maybe it is a scam or just ignores it 

altogether. She ignores the second notice. And then months later, 

she finds herself on the wrong end of a $30,000 judgment against 

her that she doesn’t have an adequate way of appealing in a Title 

III court. So that is the person and the type of respondent that we 

are worried about in this—— 

Mr. COLLINS. Okay. And I get that for a little bit, but I am going 

to stop here because I want to ask this question. There are a lot 

of other questions we are going to ask here, but I think what we 

are hearing here is what really concerns me, and Ms. Close and all 

of you as we have been working this from, is when it comes to this 

bill, what I have heard a lot in my office and I have heard from 

sort of both sides, but also the side, frankly, saying that it is maybe 

not needed, is I hear a lot of hypotheticals. Well, hypothetical—and 

I don’t disagree with your hypothetical, they could be—well, for 

those of us who went to law school, we suffered 3 years of 

hypotheticals. And, you know, some of us are really just tired of 

hypotheticals. Because in this room today there is not a hypothetical. There is Ms. Close. 

How many of you in here are creators in this room, who come 

here to support it? These are not hypotheticals. These are real people who have real issues with real infringement on their work. And 

for us to come back and to find a solution so that they can have 

a place, that they can have a regress, where they can have a remedy, where they can have something, we are always going to find— 

and one of the things that is great in Washington, D.C., is we will 

always find the hypothetical that says you can’t. I am about finding 

hypotheticals that says those that create mean something and 

those that create have value and have infinite worth. And we need 

to make sure that we protect all sides. But also, if we ever get to 

the time to where the hypothetical wins out over the creator, then 

the creator is dead. And that is what we got to fight about. 

So I appreciate everybody coming to the table today. I am looking 

forward to moving this. I think this is a great legislation that Mr. 

Jeffries and I have worked on. He has been champion on it. I appreciate so much his passion on this. But at the end of the day, 

for those who know me and know Mr. Jeffries and know others on 

this bill, we are looking for solutions. And if a hypothetical gets us 

to a solution, wonderful hypothetical. If a hypothetical is simply a 

roadblock in the way, it is time for a bull-dozer. 

Mr. Chairman, I yield back. 

Mr. ISSA. The gentleman yields back. 

We now go to the gentleman from New York, Mr. Jeffries. 


SSpencer on DSKBBXCHB2PROD with HEARINGS
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Mr. JEFFRIES. I thank my colleague, Mr. Collins, for his tremendous leadership on a whole variety of issues we have worked on together, and certainly as it relates to the CASE Act. 

Mr. Schruers, I wanted to start by trying to just explore some of 

your concerns and get an understanding about your view on the 

progress that has been made. I noted that there was an expression 

of concern as it relates to copyright trolls. And in the original 

version of the bill, there was no limit on the number of cases that 

can be filed by a single party, true? 

Mr. SCHRUERS. I believe that is the case, yes. 

Mr. JEFFRIES. And in the current discussion draft, there is a 

limit of 10 cases that a claimant can file per year, which directly 

addresses the copyright troll issue, correct? 

Mr. SCHRUERS. I understand that that is the intention. It may 

not, insofar as I explained in the previous answer, that the limit 

could be circumvented as we have seen in the patent context. 

Mr. JEFFRIES. It represents meaningful progress, true? 

Mr. SCHRUERS. I think it is a step in the right direction, yes. 

Mr. JEFFRIES. Okay. The original version of the bill included a 

provision to award attorney’s fees of up to $5,000 when claims are 

brought in bad faith, correct? 

Mr. SCHRUERS. I would have to review the original version, but 

I am willing to take your word for it. 

Mr. JEFFRIES. Okay. Now, the discussion draft changes that badfaith penalty so that there is no ceiling on the cost in attorney’s 

fees that can be awarded under extraordinary circumstances. Does 

that meaningfully address a concern relative to copyright trolls? 

Mr. SCHRUERS. Thank you for the question. I think that is a very 

valid observation, which is that in extraordinary circumstances, a 

defendant can receive more than either 2,500 or 5,000 for bad faith. 

I think it is notable that that statutory limit is significantly lower 

than what plaintiffs get without any proof of injury for statutory 

words—— 

Mr. JEFFRIES. Well, reclaiming my time, just because I have limited time. Is it a step in the right direction, to use your language? 

Mr. SCHRUERS. I think it would be if it were properly framed. I 

do think there are some changes there that should be considered 

for equitable purposes, both for victims of abuse as well as victims 

of infringement. 

Mr. JEFFRIES. Now, with respect to the opt-out regime versus the 

opt-in regime, in the original version of the bill, a party had to opt 

out every single time he or she was served with a notice, pursuant 

to the small claims system, true? 

Mr. SCHRUERS. I believe that is the case. I will take your word 

for it. 

Mr. JEFFRIES. Okay. But the discussion draft now provides for a 

blanket opt-out that would allow parties to preemptively opt out by 

filing with the Copyright Office a singular notice that they do not 

wish to participate. Is that correct? 

Mr. SCHRUERS. Yes, it is. 

Mr. JEFFRIES. Do you think that that singular notice is a step in 

the right direction? 

Mr. SCHRUERS. I believe it is something that would be used by 

larger and business entities who were aware of this. I don’t think 


SSpencer on DSKBBXCHB2PROD with HEARINGS
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that would find particular uptake among the individual users that 

we have been discussing in parts of this. 

Mr. JEFFRIES. Okay. But your trade organization, as I understand it—and I respect your organization and respect those companies, the Internet Association, represent Amazon, Pinterest, 

Facebook, Google, e-Bay, Twitter. I understand that we are talking 

about hypothetical possibilities related to a grandmother in Boca 

Raton, but I would rather deal with the real world. And the real 

world is, I think, your companies clearly have the capacity to opt 

out in a singular notice without that presenting any real burden, 

true? 

Mr. SCHRUERS. As my written statement says in greater detail, 

yes. That is something that larger business entities could likely 

take advantage of. 

Mr. JEFFRIES. Okay. 

Mr. SCHRUERS. The individual internet user constituency, which 

is not here today, for whom I am unwilling to speak, other than 

indirectly as providing them services, are unlikely to do that, and 

indeed, may not be in a capacity to take advantage of that framework. 

Mr. JEFFRIES. Okay. But you are saying you don’t have the capacity to take advantage of that, but I think many of the companies—again, companies that I respect, Pinterest, for instance, as an 

example, you know, has what will be called by some a contract of 

adhesion, right. To participate in Pinterest, you basically have to 

acknowledge that if you are unable to resolve a dispute informally, 

we agree to resolve any claim, dispute, or controversy arising out 

of or in connection with, related to the terms, through binding arbitration. 

And so I guess what I am concerned about is, I get all of this 

due process language, and it sounds flowery and it is beautiful. But 

with respect to many of the companies that you represent, you 

have these contracts of adhesion where the same internet users 

that you are saying you are here before the committee to defend 

are waiving their rights to participate in the Article III Federal 

court system. So it becomes a little difficult, I think, for many of 

us to take some of these concerns as seriously as they are being 

projected. Because at the end of the day, what we are really fundamentally talking about is that you have a situation that has 

been set up, consistent with the United States Constitution, Article 

I, section 8, clause 8, which talks about promoting the progress of 

science and useful arts, which includes visual artists and photographers and authors and others, who the Founders understood was 

important for them to have a right to vindicate that should be allowing them to benefit from the fruits of their labor and, therefore, 

share it. 

I would just ask the gentleman for 30 seconds. 

Mr. ISSA. I am afraid they are going to call votes in just a moment. If you could wrap it up in 10, I would appreciate it. 

Mr. JEFFRIES. Okay. So let me just simply say that all we are 

trying to do here is you have a notice and take-down remedy that 

is inefficient that is not working on the one hand and you have an 

Article III court system that is out of reach. And we are just trying 

to provide the creative middle class, small business, women and 


SSpencer on DSKBBXCHB2PROD with HEARINGS
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men throughout America, consistent with the United States Constitution, the ability to pursue the rights that they have been 

granted. 

I yield back. 

Mr. ISSA. I thank the gentleman. 

We now go to the gentleman from Texas, Mr. Gohmert. Please 

stay within your time. 

Mr. GOHMERT. Have I offended by going over my time? 

Mr. ISSA. I love you, Louie. I just want to get to my time before 

the vote. Go, please. 

Mr. GOHMERT. Okay. I know we have got some differing opinions 

with regard to copyright trolls and the potential abuse. And the 

word ‘‘troll’’ seems to be a popular one when it came to patent and 

was used to push through legislation a couple of times, it didn’t 

really affect the patent trolls. But I am curious, Mr. Kupferschmid, 

give me your opinion about how we stop copyright trolling but 

allow people to defend their own copyrights. 

Mr. KUPFERSCHMID. Thank you very much for the question. Let’s 

assume that there is a copyright troll problem for the purpose of 

the question. There are, in the bill, numerous safeguards to prevent copyright trolling. I will go through them. 

One, it is optional. The whole system is optional. You either can 

opt out on a case-by-case basis or blankets of—— 

Mr. GOHMERT. When you say you, the second person—— 

Mr. KUPFERSCHMID. The respondent. Sorry. The respondent 

can—they think this is a copyright troll, they go, no, thank you, 

and the case goes away. They opt out. 

Number two, there are penalties for bad faith and frivolous 

claims that are severe. Attorney’s fees, not only up to 5,000, but in 

extraordinary circumstances can exceed $5,000. You can get 

banned from use—sorry, the claimant, the copyright troll, can be 

banned for 1 year from using the CCB if, in fact, they have been 

found—for trolling. Not only that, every case that they have pending before the CCB would be dismissed. That is a lot of money that 

they would lose. 

There is a cap on damages, perhaps most importantly. That prevents trolls from making threats of massive unpredicted copyright 

damages in an effort to extort cash settlements. That is five by my 

count so far. 

Number six, there are limits on the number of cases that can be 

brought. You can’t bring more than 10 cases in a year, a particular 

claimant. 

None of these restrictions exist in Federal court. Why they would 

go to the CCB and not go to Federal court is beyond me. Also, trolls 

would lose money. If people opt out, they lose to filing fee. They 

don’t have that problem in Federal court. This bill will actually 

help prevent trolling because what it does is it allows creators to 

go and use the CCB without having to use attorneys that are on 

contingency fee cases. 

Mr. GOHMERT. Let me here from Mr. Schruers. You have a differing opinion? 

Mr. SCHRUERS. As I think I explained in my written statement 

and previously—— 

Mr. GOHMERT. Right. 


SSpencer on DSKBBXCHB2PROD with HEARINGS
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Mr. SCHRUERS [continuing]. The use of shell entities, proxies, and 

other constructs to avoid identifying a real party in interest and 

other civil—Federal civil procedure caps as is common in Federal 

troll litigation. And so we suggest tightening the cap and also not 

allowing it to be adjustable by the Copyright Office in order to 

avoid these problems. 

We do think the imposition of a cap is a step in the right direction in trying—in acknowledging that the presence of abusive litigant problem and trying to impose some meaningful constraints on 

it. 

Mr. GOHMERT. Okay. Well, thank you. 

Ms. Close, there is a burden on a copyright holder to protect the 

copyright. But when we are talking internet, we now have the capability, people with the platform can take it down just as easily 

if, you know, they have access, they could take it down as easily 

or perhaps more so than to wait to be notified. 

What is your position on not just the copyright holder having a 

burden of taking something down when it is in violation of copyright? 

Ms. CLOSE. I am not sure I understand your question. 

Mr. GOHMERT. Well, you know, the internet, you have got a lot 

of platforms there. If there is a platform wherein somebody’s infringing on a copyright, why couldn’t you have the provider of that 

platform take it down without having to wait—I know it is not currently the law, I am just asking—— 

Ms. CLOSE. I don’t even know how I would go about that. Having 

to provide—— 

Mr. GOHMERT. You are familiar with the internet, though, right? 

You use the internet tons of times. Okay. 

Ms. CLOSE. Yes, I use the internet daily. 

Mr. GOHMERT. And you know there are platforms and, in fact, we 

have had people from different platforms here in your very chairs, 

and I am just, as my time is expired now, but I would encourage 

you to think about the possibility, because the platform providers 

do have the ability to take things down without being told to do 

so. And, in fact, it could be to where they are even infringing when 

they allow their platform to be used as an infringing platform. 

Thank you. I yield back. 

Mr. ISSA. I thank the gentleman for yielding back. 

We now go to the gentlelady from Florida for 5 minutes. 

Mrs. DEMINGS. Thank you so much, Mr. Chairman. And thank 

you to our witnesses here today. 

I have no doubt that the CASE Act is a much needed piece of 

legislation that is truly going to help protect the creativity of the 

persons in this room and many others who are not here. So I am 

delighted to see us get to this point. 

Mr. Schruers, you started talking about some of the concerns 

that you had or some of the issues that you had, but I would also 

like to hear from all of you, while this legislation is going to make 

a big difference, I would like to hear—because, you know, we frequently hear the legislation is great, but it doesn’t quite go far 

enough, or there may be some unintended consequences. 

If you have any concerns or anything that you would like to add 

in this particular draft that has not been added, I would like to 


SSpencer on DSKBBXCHB2PROD with HEARINGS
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hear from all of you in that area. And we will start with you, Mr. 

Trust. 

Mr. TRUST. I thank you, Congresswoman. So you are asking 

what we might want to add into it that is not in it presently? 

Mrs. DEMINGS. That is absolutely correct. 

Mr. TRUST. Wow, that is a tall order. I will say this. We made 

quite a number of concessions, if you are familiar with the history 

of this legislation. We made quite a number of concessions that 

were painful, that were difficult for us to make. 

Mrs. DEMINGS. So one area that you didn’t quite get to, though, 

that you wish was—you would have. 

Mr. TRUST. Well, we would probably like to remove a few things. 

One, the cap on 10 would be one of them. We are certainly concerned about that. We would probably include just stronger wording so that it—so that people felt the need to actually participate. 

We would, I think, like just additional, I guess, protections in it 

that included things like injunctive relief and others, but I hesitate 

to say that because we early on recognized that injunctive relief 

would be a hurdle that we would not be able to overcome, and so 

we immediately took that out. 

So there were a number of things that we, out of good faith, removed from this, or that we were willing to see removed from this, 

simply because we felt like this was our one shot at the table. Honestly, creators never get this shot at the table. Small creators never 

get this opportunity, and we were nervous that we maybe wouldn’t 

be able to get this through so—— 

Mrs. DEMINGS. Thank you so much. 

I am going to go to Ms. Close. 

Ms. CLOSE. As I mentioned before, I am not a lawyer, so I don’t 

want to speak out of turn on some of the specifics, but I will say, 

from my perspective, I feel like an unintended consequence. And I 

know that the law did not mean to turn out this way, but it is seriously affecting myself and my colleagues’ ability to survive in this 

world. Imagine what it would be like if everything we provided was 

gone. It affects everybody. It affects small businesses, large businesses. I believe that we provide a service to humanity, really, if 

you want to go that large with it. 

I would love to see the cap on 10 removed just because I have 

41 infringements in one image, not that I would take all of those 

people to court. 

Mrs. DEMINGS. Eighteen of those were large companies. 

Ms. CLOSE. Eighteen of those were large companies. I will take 

the 10 because 10 is better than zero. But I would prefer to see 

more. 

Mrs. DEMINGS. Thank you. 

Ms. CLOSE. One step at a time. 

Mrs. DEMINGS. Mr. Berroya. 

Mr. BERROYA. Thank you, Congresswoman. I will keep it short. 

The three things that Internet Association believes would drastically improve the bill would be switching from an opt-out process 

to an opt-in process to ensure that small creative entities that are 

building their businesses online and offline are protected adequately and have due process and fairness in the overall process. 

Clarifying that the bill does not impact the operation of section 512 


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is also critically important from our perspective. And, finally, 

amending the draft to reserve statutory damages to those who have 

timely registered. 

Mrs. DEMINGS. Thank you. 

Mr. Kupferschmid. 

Mr. KUPFERSCHMID. Thank you. So as you heard, we have—I am 

just going to echo David’s comments without repeating them, but 

I will point out that, you know, what we have seen in the testimony from CCIA and IA is basically more of the status quo. They 

are asking for opt-in, which is the status quo. We have opt-in right 

now right. You send somebody a letter, they either respond or they 

don’t respond. That is opt-in. Same with ADR, right. De novo review, that destroys—that destroys the value of the bill. We are creating this bill because these small creators cannot afford to go to 

Federal court. This would require them to go to Federal court de 

novo review and get attorneys and complicated process. 

So it has been very, very frustrating. We know, we are little 

guys, we are coming to Capitol Hill trying to get this bill passed. 

We have got these internet giants representing huge companies 

that we are going against who easily and routinely kind of stomp 

us to the ground. And every time we give something, they push the 

goalpost further. It is like that scene in Animal House where you 

bend over and you go, thank you, sir, may I have another. That is 

what is going on here. 

Mrs. DEMINGS. Thank you for that image. 

Mr. ISSA. That one is going to be with us. 

Mrs. DEMINGS. Thank you so much, Mr. Chairman. I gladly yield 

back to you. 

Mr. ISSA. I thank the gentlelady. 

You know, going last usually makes it easy. I recognize myself. 

But I will, at great peril, I will pick up where the gentlelady left 

off. 

You know, I appreciate the little guy, big guy. You heard today, 

I think, from several people—several members their concern about 

trolls. It is one of the key items, I think, that needs to be resolved 

as this bill progresses. And so if I can spend a little time kind of 

querying that. 

Ms. Close, you said you had no intention of going after Facebook, 

as a potential user, beneficiary, and currently, as you said, victim. 

If this bill exempted noncommercial use so that we wouldn’t be 

dealing with these people who are not sophisticated and who, by 

definition, you know, really don’t know what they are supposed to 

say or do, and without advice of counsel, if possible, what would 

your view on that be? And I am talking about an individual view 

for a moment. 

Ms. CLOSE. My individual view would be I would take it if that 

is the only way to get this thing through, the rest of it, but I would 

prefer not to have it in there. And that is me only not knowing 

legalese. 

Mr. ISSA. No, I understand. I understand. The follow-up question, 

of course, on that would be, if takedown were considered to be an 

opt-out so that if someone receives notice—and let’s presume for a 

moment, and I will tell you a story in a just a second before the 

vote. If somebody gets a notice of a picture, whether it is a big corVerDate Sep 11 2014 23:57 Dec 27, 2018 Jkt 033419 PO 00000 Frm 00086 Fmt 6633 Sfmt 6602 E:\HR\OC\A419.XXX A419

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poration or a little one, and they thought it was clip art and they 

take it down, we are presuming website for a moment, to you, and 

again it is to you individually, is that a remedy? Assuming that, 

you know, this isn’t a pervasive user but, you know, you went out, 

you did your search, you have got a picture that you uploaded, they 

have got it on their site, you send them the notice and it comes off. 

Is that, in fact, in your view, a remedy, or do you still want a piece 

of their hide? 

Ms. CLOSE. I would say it is a step toward a remedy, but it is 

not a remedy, because it is still my work and it still got used, and 

it is my not my fault that that person didn’t understand the law 

and the rules. 

Mr. ISSA. Remember, this was not a registered—this was not registered—— 

Ms. CLOSE. Right. Okay. If it is not registered, then fine. If it is 

not registered, done. If it is registered—— 

Mr. ISSA. Right. But the current bill allows for you to run in, register it, and then file. So the question is, was it posted, as it very 

likely would be in many cases under the bill as I read it, if it was— 

if, in fact, you have an unregistered work and you either go and 

register it after it is already posted and then give notice, or if, in 

fact, you haven’t even yet registered it and you are just sending 

them the notice, that is the question. 

Because one of the things about this bill as it progresses is good 

people on both sides are going to try and find common ground. 

Ms. CLOSE. Of course. 

Ms. ISSA. And one of the nice things about us, since we don’t 

have outside income, is we tend not to be on either of your sides. 

So that is why I am asking that question of, you know, if it is not 

registered, if there isn’t yet a database where somebody can clear 

things, what do they do? 

Because I have been—you probably have too. You have been up 

at the Getty Museum. They are frustrated as all get out trying to 

clear works that they can just put on because, in fact, they have 

a team of lawyers to try to make sure they never violate, and it 

is tough, particularly in the case of what one might call orphan 

works. But I would like your view on that. 

Ms. CLOSE. I mean, I guess I would say—and, again, not as a 

lawyer and not knowing the super in depths of this particular bill, 

but if it is too complicated, it needs to be simplified. And I think 

this is a way to simplify it. However, copyright, I know, is afforded 

to me when I make a piece of art. When I register it, I am afforded 

other benefits, I guess I would say. 

Mr. ISSA. You gain statutory—— 

Ms. CLOSE. Right. So I would want—— 

Mr. ISSA. You have to do it in order to gain access to this court. 

Ms. CLOSE. So as the copyright owner of that work, I would want 

to enter a level playing field with somebody, regardless of whether 

I had registered my copyright before they infringed on it or not. 

However, a secondary thing that I appreciate and that I hope that 

this bill would do is that ultimately I would like everybody to register their copyrights. And I would like also the people who may 

non-willfully infringe, people who innocently do it, because those 

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cause ultimately the bigger picture of this is that there is a cultural shift. And image theft and not respecting a creator’s property 

and work is a much larger issue than just the internet it is free, 

it is a whole cultural thing. 

So I can’t directly answer your question, but I would say that as 

of right now, yeah, I would want to be able—I would want to be 

able to enter a level playing field with that person and let it be 

hashed out one on one, regardless of whether my copyright was 

registered before or after. 

Mr. ISSA. Now, I told you I would tell you a story, and I will be 

brief. Back in the nineties, that is the 1990s, not the 1890s for people that look at my age, I was manufacturing, among other things, 

the Viper car alarms. And I had had an artist paint a fanciful, as 

it was called in the litigation, snake, that became known as the 

image of the Viper. 

And one day I became aware in the St. Louis newspaper that a 

Dodge dealer said, the Viper is coming, and what a surprise, he 

had my snake. I sent a letter to Lee Iacocca telling him that these 

kinds of things could be a problem. He filed a DJ and hundreds of 

thousands of dollars on his side and hundreds of thousands of dollars later on my side, we had our first meeting to try to resolve 

this. His ego, my image. 

I am acutely aware that everybody thinks somebody else’s image 

is clip art, which by the way was the defense of the car dealer. Oh, 

that was clip art. My sales, you know, the ad agency just pulled 

it. Of course, it was a unique image, in many ways more unique 

than a photograph because it was a reproduction from an original 

painting, and that snake never existed so you couldn’t just snap a 

picture and get something similar. 

No such court or capability existed, and in my case, it probably 

wouldn’t have been used. But it certainly then, if you were to go 

out and look at that image today, you will find thousands and thousands of copy of the Viper snakes of various trademarks. It is almost hopeless to protect because of proliferation. 

Now, we are a commercial—my former company is a commercial 

product, so we are hurt only in one way, not the way you are hurt, 

since your artwork is truly your product. So I am going to address 

my closing to the gentlemen on your left and right. 

I heard you say today—and I have great sympathy for you, 

maybe even empathy. I heard you say, as they were talking about 

great concessions, which by the way, just so you understand, you 

are not making a painful concession from your original ask; you are 

making a compromise from a list of everything you wanted. 

But having said that, I only heard you say what would make it 

better. I never heard either of you commit that if you got certain 

things, you could be for this bill. And that would be the challenge 

that I would hope that, in a few minutes before we have to leave, 

you would lay out if that exist and how we get there. Because although there are deal killers and you may understand them, including a de novo review with no heightened penalty, these sort of 

things you and I can know, that you can do better than that. 

So my question to you is, what does it take to get you to yes on 

a bill that could protect people reasonably from trolls but could provide a real opportunity for short, quick, and relatively painless setVerDate Sep 11 2014 23:57 Dec 27, 2018 Jkt 033419 PO 00000 Frm 00088 Fmt 6633 Sfmt 6602 E:\HR\OC\A419.XXX A419

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tlement of disputes, particularly when somebody believes that they 

have a fair use and they might be wrong? I know you came here 

prepared to get to yes, so that is why I am asking. 

Mr. BERROYA. Absolutely. And, Mr. Congressman, I am somebody 

who spent the last 7 years enforcing copyrighted works online, so 

I understand the challenges. 

Mr. ISSA. Always good to have been both the plaintiff and the defendant. 

Mr. BERROYA. Absolutely, Mr. Congressman. The three issues 

that we laid out and the two additional issues that I referenced 

and are included in my written testimony, are the only issues that 

I am aware of that IA and its members have with the bill. We are 

100 percent committed to working with the committee in making 

sure that the goals of this bill are accomplished. 

Mr. ISSA. Mr. Schruers. 

Mr. SCHRUERS. Thank you, Congressman. In the spring, CCIA 

actually did submit an extensive red line to committee staff identifying the issues that we regarded as critical, embodying all of them 

and providing explanatory text to explain why particular changes 

were being made. Those changes were almost uniformly rejected, 

and what is reflected in the discussion draft is what is represented 

to be efforts to address the concerns that we identified. 

Unfortunately, that view isn’t universally held, but I think we 

have been fairly clear about what the issues are, and they are represented in a more concise form in the written statement and very 

similar to the issues raised by IA. You know, I agree, I think that 

we have a desire to get to yes on this. 

I also think it is worth noting that there seems to be a consensus 

that the root cause of the problem is a general disuse of the registration system, which we know is inconsistent with Congress’ intent about promoting registration. And so I would suggest that 

even as we are trying to work to get to yes on this solution, we 

should look at the actual root cause, which is that creators are saying we are disincentivized from using the registration system. And 

I say that as a representative of consumers of the registration system, which is to say, digital services who want to make works 

available at scale need information to know who to pay. They want 

to put money in artists’ pockets, and the system that the government has to enable that is not working. And that is something that 

we should also give attention to. 

Mr. ISSA. Okay. I am going to let you close in just a moment, Ms. 

Close. But I am going to say to both of you, and to all the parties 

here, if you would like to revise and extend your best written example of what you believe the legislation would look like, not general ideas, but several of you are very good at draft legislation, so 

that we could see sort of your best offer of language you believe 

would enable, and as you said, you have been on both sides, that 

would work for you as a plaintiff, that would be helpful. 

Ms. Close, I said I would let you close. I want to leave you with 

one thing though, as both a constituent and now testifying. We 

have been frustrated for a long time here that the Copyright Office 

has not made it possible to have sort of an easier, more modern 

way to display that you have in fact registered, and we are particularly talking about works of photography. 


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It is my view that in the foreseeable future, since I know they 

are not going to get to you simply upload and they maintain it, 

that we will get to—thank you—to linkable databases where you 

will be able to, in my opinion, post your work essentially on your 

own site, link it to the Copyright Office, and be, under the law, considered to have informed the Copyright Office. 

This form of modernized registration that allows you to have 

terabytes of information linked in some official way to the Copyright Office so that we are on public notice, they are on public notice, and allowing those Google searches, if you will, to be easily 

done. That, in fact, is in our future; it is not here today. 

And I have been told that I can give you 30 seconds, then I got 

to run. Please. 

Ms. CLOSE. I think that is great. I think that that would help, 

but I also want to say that registration is not the root cause of the 

problem. The root cause of the problem is not being able to enforce 

the registration and the rights that we are provided. So that would 

be a step in the right direction, but it is not a solution. 

Thank you. 

Mr. ISSA. And I said I was closing, but I will close with a patent 

reminder. If I place the number of my patent on my product, I have 

given constructive notice. The reality is, for the internet, they need 

constructive notice, and we in Congress need to define what that 

constructive notice. 

I am sorry that I cannot do a second round for the many people 

here to ask. With that, we stand adjourned. 

[Whereupon, at 3:57 p.m., the committee was adjourned.] 

Æ 


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