Federal Register / Vol. 87, No. 58 / Friday, March 25, 2022 / Rules and Regulations 16989 

1Public Law 116–260, sec. 212, 134 Stat. 1182, 

2176 (2020). 

2See, e.g., H.R. Rep. No. 116–252, at 18–20 

(2019); S. Rep. No. 116–105, at 7–8 (2019). 

3 86 FR 16156 (Mar. 26, 2021). Comments 

received in response to the March 26, 2021 NOI are 

available at https://www.regulations.gov/document/ 

COLC-2021-0001-0001/comment. 

4 86 FR 53897 (Sept. 29, 2021). Comments 

received in response to the September 29, 2021 

NPRM are available at https://www.regulations.gov/ 

docket/COLC-2021-0004/comments. References to 

these comments are by party name (abbreviated 

where appropriate), followed by ‘‘Initial NPRM 

Comments’’ or ‘‘Reply NPRM Comments,’’ as 

appropriate. 

5 86 FR 53897. 

6The statutory fee for filing suit in a federal 

district court is $350, 28 U.S.C. 1914(a), and an 

additional fee of $52 is charged as an administrative 

fee by the Judicial Conference of the United States. 

Id. 

7 17 U.S.C. 1510(c). 

8 86 FR 53904 (citing S. Rep. No. 116–105, at 4 

n.4). 

9 Id. 

10But cf. Michael Bynum Initial NPRM 

Comments at 1 (not mentioning the two-tiered vs. 

single-tier choice, but stating that he was 

‘‘comfortable’’ with a $100 fee and that it was 

‘‘reasonable’’). 

11See, e.g., Copyright Alliance, ACT √ App Ass’n, 

Am. Photographic Artists, Am. Soc’y for Collective 

Rights Licensing, Am. Soc’y of Media 

Photographers, The Authors Guild, CreativeFuture, 

Digital Media Licensing Ass’n, Graphic Artists 

Guild, Indep. Book Pubs. Ass’n, Music Artists 

Coalition, Music Creators N. Am., Nat’l Press 

Photographers Ass’n, N. Am. Nature Photography 

Ass’n, Prof. Photographers of Am., Recording 

Academy, Screen Actors Guild-Am. Fed. of 

Television and Radio Artists, Soc’y of Composers & 

Lyricists, Songwriters Guild of Am., & Songwriters 

of N. Am. (‘‘Copyright Alliance et al.’’) Initial 

NPRM Comments at 8–11; Am. Intell. Prop. L. Ass’n 

(‘‘AIPLA’’) Initial NPRM Comments at 3; The 

Authors Guild Reply NPRM Comments at 1–2; Mark 

Reback Initial NPRM Comments at 1; Jay Foster 

Initial NPRM Comments at 1. 

12See, e.g., AIPLA Initial NPRM Comments at 3 

($35–55); Authors Guild Reply NPRM Comments at 

1–2 ($25–35); Ryan Conners Initial NPRM 

Comments at 1 ($25); Ricky Jackson Initial NPRM 

Comments at 1 ($25); Sylvia Phipps Initial NPRM 

Comments at 1 ($25); Anonymous Reply NPRM 

Comments at 3 ($50); Sydney Krantz Initial NPRM 

Comments at 1 ($25); Donna Barr Initial NPRM 

Comments at 1 ($15); Ritterbin Photography Initial 

NPRM Comments at 1 ($25); Lisa Shaftel Initial 

NPRM Comments at 5 ($25); Suriya Ahmer Initial 

NPRM Comments at 1 ($25); Mark Woodward Reply 

NPRM Comments at 1 ($20–25); Hans Rupert Initial 

NPRM Comments at ($10). 

13See, e.g., John Long Initial NPRM Comments at 

1; 9TH Eye in The Quad Productions Initial NPRM 

Comments at 1; c, z Initial NPRM Comments at 1; 

Cherry Wood Initial NPRM Comments at 1; 

Charlotte Cotton Initial NPRM Comments at 1; Dan 

Milham Initial NPRM Comments at 1; Gareth Hinds 

Initial NPRM Comments at 1; K Muldoon Initial 

NPRM Comments at 1; Bree McCool Photography 

Initial NPRM Comments at 1; Linda Langford Initial 

NPRM Comments at 1; Angela Jarman Initial NPRM 

Comments at 1. 

this part, you may not enter the safety 

zone described in paragraph (a) of this 

section unless authorized by the COTP 

or the COTP’s designated representative. 

(2) To seek permission to enter, 

contact the COTP or the COTP’s 

representative by telephone at 907–463– 

2980 or on Marine Band Radio VHF–FM 

channel 16 (156.8 MHz). The designated 

representative on-scene can be 

contacted on Marine Band Radio VHF– 

FM channel 16 (156.8 MHz). 

(3) Those in the safety zone must 

comply with all lawful orders or 

directions given to them by the COTP or 

the COTP’s designated representative. 

Dated: March 21, 2022. 

D.A. Jensen, 

Captain, U.S. Coast Guard, Captain of the 

Port Southeast Alaska. 

[FR Doc. 2022–06453 Filed 3–24–22; 8:45 am] 

BILLING CODE 9110–04–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Parts 201, 220, 222, 223, and 

224 

[Docket No. 2021–6] 

Copyright Claims Board: Initiating of 

Proceedings and Related Procedures 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Final rule. 

SUMMARY: The U.S. Copyright Office is 

amending its regulations to establish 

procedures governing the initial stages 

of a Copyright Claims Board proceeding. 

The regulations provide requirements 

regarding filing a claim, the Board’s 

compliance review, service, notice of 

the claim, the respondent’s opt-out 

election, responses, and counterclaims. 

DATES: Effective April 25, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Megan Efthimiadis, Assistant to the 

General Counsel, by email at meft@

copyright.gov, or by telephone at 202– 

707–8350. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Copyright Alternative in SmallClaims Enforcement (‘‘CASE’’) Act of 

2020 1 directs the Copyright Office to 

establish the Copyright Claims Board 

(‘‘CCB’’), a voluntary forum for parties 

seeking resolution of certain copyright 

disputes that have a total monetary 

value of $30,000 or less. The CCB is an 

alternative forum to federal court and is 

designed to be accessible to pro se 

individuals and individuals without 

much formal exposure to copyright.2

The Office published a notification of 

inquiry (‘‘NOI’’) asking for public 

comments on the CCB’s operations and 

procedures.3

Following the NOI, the Office 

published a notice of proposed 

rulemaking (‘‘NPRM’’), proposing rules 

governing the initiation of proceedings 

before the CCB and related procedures.4

These rules addressed filing a claim, the 

CCB’s review of the claim to ensure that 

it complies with the relevant statutory 

requirements and regulations 

(‘‘compliance review’’), service, notice 

of the claim, the respondent’s ability to 

opt out, the response, and 

counterclaims.5

The Office sought public input 

concerning its proposals for the 

initiation of proceedings and related 

procedures and received 186 responsive 

comments. The Office addresses these 

comments along with changes made to 

the proposed rule below. 

II. Final Rule 

A. Fees 

1. Fee for Filing a Claim 

The CASE Act provides that the sum 

total of any filing fees, including the fee 

to commence a proceeding, may not 

exceed the cost to file an action in 

federal district court (currently $402 6) 

but may not be less than $100.7 In the 

NPRM, the Office noted that the CASE 

Act’s Senate Report proposed ‘‘that the 

Office consider a two-tiered fee 

structure, with an initial fee assessed 

when the claim is filed and a second fee 

assessed after the claim becomes 

active.’’ 8 At that time, the Office 

declined to institute a two-tiered fee 

system, under the theory that where a 

‘‘claimant did not move on to the 

second tier, the total filing fees would 

not reach the statutory floor.’’ 9

Accordingly, a single filing fee of $100 

to commence a proceeding was 

proposed. However, the Office invited 

comments on the advisability of a twotiered fee system and whether the Office 

has the authority to institute such a 

system under the CASE Act. 

Commenters overwhelmingly 

supported a two-tiered fee system.10

They offered many practical arguments, 

including that an upfront fee of $100 

may be cost-prohibitive for many 

claimants, especially when respondents 

subsequently opt out of the proceeding, 

and that a two-tiered system would 

increase participation by minimizing 

the loss to a claimant where a 

respondent opts out before a proceeding 

becomes active.11 Commenters 

suggested setting the first fee in the 

range of $10 to $55, with many 

suggesting the first fee should be around 

$25.12 Others did not take a position on 

a single fee or two-tiered approach, but 

suggested reducing the filing fee to less 

than $100.13


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14 86 FR 53904 (citing 17 U.S.C. 1506(e), (x)). 15 Id. 16Copyright Alliance et al. Initial NPRM 

Comments at 9 (emphasis omitted). 17AIPLA Initial NPRM Comments at 3 (citing 17 

U.S.C. 1510(c)). 18 86 FR 53904. 

19 17 U.S.C. 1510(c). 20Copyright Alliance et al. Initial NPRM 

Comments at 10 (quoting S. Rep. No. 116–105, at 

4). 21S. Rep. No. 116–105, at 4. 22H.R. Rep. No. 116–252, at 17. 23S. Rep. No. 116–105, at 4. 

24But see The Authors Guild Reply NPRM 

Comments at 1–2. 

25U.S. Copyright Office, Copyright Small Claims 

122 & n.849 (2013), https://www.copyright.gov/ 

docs/smallclaims/usco-smallcopyrightclaims.pdf 

(‘‘Copyright Small Claims’’). 

26 86 FR 53904. 

27Copyright Alliance et al. Initial NPRM 

Comments at 11; Copyright Alliance et al. Reply 

NPRM Comments at 10–11. 

28AIPLA Initial NPRM Comments at 3. 

Two comments, reflecting the views 

of multiple commenters, offered their 

analysis of the CASE Act permitting a 

two-tiered fee. As the Office noted in 

the NPRM, the CASE Act expressly 

refers to two separate ‘‘filing fees,’’ 

including the fee to commence a 

proceeding and the fee for the Register’s 

review.14 While the Act does not state 

that these are the only fees that may be 

assessed, the Office interpreted 17 

U.S.C. 1510(c) as dictating the ‘‘upper 

and lower limits to the filing fees it may 

assess,’’ and that the section requires a 

‘‘statutory minimum’’ filing fee of 

$100.15 The Copyright Alliance et al. 

challenged the Office’s reading of 

1510(c), stating that that provision is not 

‘‘instructive of how much the Office 

must actually receive in fees each time 

a claimant commences a claim,’’ but 

instead is ‘‘instructing the Register on 

how to set the fee schedule in the 

regulations.’’ 16 AIPLA looked at the 

statutory text, which states that the total 

of all fees ‘‘including,’’ but not limited 

to, the fee for commencing a proceeding 

must equal at least $100 to conclude 

that ‘‘[r]ather than a bottom limit on the 

initial filing fee, the Act sets a $100 

minimum on the ‘sum total of such 

filing fees[.]’ ’’ 17

Upon careful evaluation of the statute 

and the submitted comments, the Office 

is amending the proposed rule to 

include a two-tiered fee system, with a 

first payment of $40 due upon filing and 

a second payment of $60 due once a 

proceeding becomes active. Under the 

two-tiered approach adopted in this 

final rule, the ‘‘sum total’’ of all ‘‘filing 

fees’’ will be at least $100 and no more 

than $402, satisfying the requirements 

of section 1510(c). 

In adopting a two-tiered fee, the 

Office is informed in part by the 

statutory analysis offered by AIPLA and 

the Copyright Alliance et al. as well as 

its own reading of the statute. The 

Office believes that the CASE Act does 

not establish a minimum initial fee to 

commence a proceeding, so long as the 

sum total of all filing fees set by the 

Office meets the statutory requirements, 

including that the total fees are not less 

than $100. It is clear from the statute, 

and as noted in the NPRM,18 that the 

$100 minimum applies not to the fee 

that accompanies the filing of a claim, 

but rather to the ‘‘sum total’’ of 

whatever filing fees are prescribed in 

regulations established by the Register. 

Therefore, while under the statute, the 

combined total of all filing fees that may 

be assessed must be at least $100, the 

statute does not require that each 

claimant pay $100 at the outset before 

a proceeding becomes active. 

Additionally, the Office agrees with 

commenters that a two-tiered fee system 

furthers the goals of the CCB, a factor 

the statute directs the Office to consider 

when setting filing fees.19 As noted by 

the Copyright Alliance et al.,20 the 

CASE Act’s Senate Report counsels that 

filing fees should not be set so high as 

to discourage potential claimants from 

using the CCB to resolve their disputes, 

knowing that when respondents 

exercise their right to opt out it will 

result in the claimants’ loss of the filing 

fees.21 The two-tiered fee system 

reduces the financial outlay to institute 

a proceeding. Requiring payment of a 

filing fee of $100 when respondents may 

yet opt out could cause potential 

claimants to conclude that bringing a 

claim before the CCB is too great a 

financial risk. A chief objective of the 

CASE Act is to provide a forum that is 

‘‘accessible especially for pro se parties 

and those with little prior formal 

exposure to copyright laws who cannot 

otherwise afford to have their claims 

and defenses heard in federal court.’’ 22

This fundamental goal is not served if 

the fee to commence a proceeding, 

which risks being lost if the respondent 

opts out, serves as too high a barrier to 

the filing of genuine claims. 

The Office has set the amount of the 

first payment at $40 and the second 

payment at $60 for many reasons. First, 

a $40/$60 split keeps the overall fee at 

$100, meaning that the published total 

filing fee will, by itself, fulfill the 

statutory requirement of having total 

filing fees be at least $100. Second, 

Congress suggested that if a two-tiered 

system was created, ‘‘the initial filing 

fee itself should be smaller than the fee 

charged later when a proceeding 

becomes active.’’ 23 Third, in most cases 

that reach active proceeding status, 

much more of the work required by the 

CCB will occur after the proceeding 

becomes active, meaning that it makes 

sense to have the second fee higher than 

the first as opposed to a $50/$50 split. 

Fourth, while the Office received many 

comments asking for a two-tiered 

system, almost none of those 

commenters expressed any issue with 

the total of the two tiers equaling 

$100.24 Fifth, as expressed above, the 

$40 fee fits squarely within the general 

range of prices suggested by 

commenters for the first payment. And, 

sixth, the first payment should not be so 

low that it does not have a deterrent 

effect on purely frivolous claims, a 

concern expressed in the Office’s 

original study leading to the CASE Act 

(recommending a filing fee in order to 

‘‘discourage spurious claims’’).25

The Office notes that the $40/$60 split 

represents the Office’s best estimate of 

proper first and second payments given 

the information available. Should the 

Office determine after the benefit of 

experience that a different split makes 

sense (e.g., if the current first payment 

amount does not appear to be 

sufficiently high to deter frivolous 

claims), it will engage in a new 

rulemaking process at that time. 

Implementation of this fee system 

requires additional regulations 

concerning, for example, the timing of 

the second payment and the 

consequences of the failure to make that 

payment. These regulations are 

described in more detail below. 

2. Fee for Counterclaims 

The Office did not include a fee for 

filing counterclaims in the proposed 

rule based on the lack of express 

statutory authorization for counterclaim 

fees and the fact that federal district 

courts do not charge fees for 

counterclaims, but it invited 

comments.26 The Office received two 

comments on this issue. The Copyright 

Alliance et al. agreed that there should 

not be a filing fee for counterclaims 

since ‘‘the CCB is intended to be an 

affordable alternative to federal court’’ 

and federal courts do not charge a fee 

for bringing counterclaims.27 AIPLA 

recommended instituting such a fee to 

defray the costs of the CCB checking 

counterclaims to make sure they are 

compliant with the rules and to deter 

the filing of frivolous counterclaims, 

noting that other administrative forums, 

including the Trademark Trial and 

Appeal Board, charge fees for 

counterclaims.28 Upon consideration of 

these comments, the Office has decided 

not to include a fee for filing 

counterclaims in the final rule. 


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29 86 FR 53898. 

30 Id. 

31New Media Rights Initial NPRM Comments at 

4. 

32Organization for Transformative Works 

(‘‘OTW’’) Initial NPRM Comments at 8–9; New 

Media Rights Initial NPRM Comments at 4–5. 

33SFWA Initial NPRM Comments at 2. 

34Copyright Alliance et al. Initial NPRM 

Comments at 13 (citing 28 U.S.C. 2201). 

35 86 FR 53906. 

36Copyright Alliance et al. Initial NPRM 

Comments at 13–14; Motion Picture Ass’n, 

Recording Indus. Ass’n of Am. & Software and Info. 

Ass’n of Am. (‘‘MPA, RIAA & SIIA’’) Initial NPRM 

Comments at 9–10. 

37 James Doherty Initial NPRM Comments. 

38Copyright Alliance et al. Initial NPRM 

Comments at 12–13. 

39New Media Rights Initial NPRM Comments at 

4. 

A. Initiating a Claim 

The NPRM included proposed 

regulations on initiating claims before 

the CCB.29 These regulations 

contemplated that claims would be 

submitted on a fillable form provided on 

the CCB’s electronic filing system, 

called ‘‘eCCB.’’ The claim form would 

include certain key information about 

the claim, such as the identity of the 

parties, the type of claim asserted, the 

harm experienced, and other relevant 

facts.30 The Office received comments 

on the claim initiation process, 

discussed below. The Office also has 

endeavored to standardize the 

requirements for claims and 

counterclaims, where applicable. 

1. Pleading Requirements 

Commenters were split regarding 

whether they believed the pleading 

requirements for claims in the proposed 

rule were too burdensome or too 

lenient. In suggesting the rule was too 

lenient, New Media Rights questioned 

whether the pleading requirements were 

sufficient to place respondents on notice 

of the details of the claim,31 and two 

commenters suggested that the Office 

include a mechanism for respondents to 

request additional information before 

deciding whether to opt out.32 The 

Science Fiction and Fantasy Writers of 

America, Inc. (‘‘SFWA’’), suggested that 

the rule was too burdensome, and that 

the pleading requirements in the 

proposed rule were too complex and 

could deter claimants from filing claims, 

especially without the assistance of an 

attorney.33

The Office intends the pleading 

requirements to represent a balance 

between claimants’ and respondents’ 

needs. The appropriate balance will 

ensure that a claim provides sufficient 

information to allow a respondent to 

make a meaningful assessment of 

whether to opt out or to proceed before 

the CCB, while not overly burdening the 

claimant. Though claimants are required 

to provide a fair amount of detail, the 

Office plans to make educational 

materials, such as the CCB Handbook, 

available to explain the pleading 

requirements while minimizing legal 

jargon. Furthermore, eCCB has been 

designed to provide guidance to 

claimants concerning what information 

they are required to provide via a 

fillable online form. Copyright Claims 

Attorneys will also be available to 

answer questions and provide guidance. 

If a Copyright Claims Attorney 

determines during the claim’s 

compliance review that it does not 

provide sufficient information to place a 

respondent on notice, the CCB will 

order the claimant to provide more 

detail before allowing the claim to 

proceed. Additionally, the Office has 

included language in the final rule 

enabling parties to jointly request an 

extension of the opt-out period, as 

discussed below. Though the CCB 

ultimately must approve such requests, 

an extension may give the respondent 

additional time to approach the 

claimant during the opt-out period and 

request more information to determine 

whether to proceed or opt out. 

Commenters noted that the proposed 

rule did not include a requirement that 

claimants seeking a declaration of 

noninfringement plead any facts 

alleging the existence of a dispute or 

controversy, as is required for 

declaratory judgments.34 The Office has 

added this requirement to the final rule. 

Additionally, two commenters 

suggested that the requirement that 

claimants describe and estimate the 

‘‘monetary harm suffered’’ 35 was too 

limiting, since some claimants may seek 

statutory damages, profits, or no 

damages at all.36 The final rule broadens 

this language, requiring that claimants 

describe the harm they have suffered 

due to the alleged activity and the relief 

they are seeking, which may include an 

estimate of such relief. Though the 

NPRM included this as a requirement 

for all three types of claims, the final 

rule only includes it as a requirement 

for infringement and misrepresentation 

claims, since damages are not available 

for noninfringement claims. 

One commenter suggested that 

claimants be permitted to serve a 

settlement demand, akin to an offer of 

judgment under Rule 68 of the Federal 

Rules of Civil Procedure, along with the 

claim, so that a respondent would have 

a choice between opting out, responding 

and participating in the proceeding, or 

settling. The commenter believed that 

this could also increase participation in 

CCB proceedings since the respondent 

would be aware of the level of potential 

liability at the outset.37 The Office is 

concerned that explicitly incorporating 

settlement demands such as these into 

the early stages of the process may 

encourage abusive use of the CCB, and 

that aggressive claimants would use 

such demands to intimidate 

respondents into a settlement or that 

high settlement demands would 

encourage respondents to opt out. 

Additionally, the Office believes that 

the revisions in the final rule requiring 

a claimant to describe the harm they 

have suffered and permitting them to 

include an estimate will better serve the 

goal of placing respondents on notice of 

the level of potential liability from the 

outset. 

Further, commenters suggested that 

the requirement that the claimant 

identify the category of work that the 

claim pertains to may be confusing, 

especially for pro se claimants, and that 

this information is not necessary, since 

the Office can easily determine it from 

the work’s application or registration.38

The Office intends to provide guidance 

to claimants in its educational materials 

as well as within eCCB for determining 

the category of the work. Claimants who 

are unable to determine which category 

applies will be given an opportunity to 

describe the work in their own words 

instead. Though the Office may later be 

able to access this information in its 

records, identification of the category at 

this stage may provide helpful 

information to respondents in 

understanding the claim that is asserted. 

Indeed, New Media Rights believed the 

overall requirements for the claim, 

including the proposed rule’s ‘‘standard 

for describing the nature of the work’’ to 

be ‘‘inadequate’’ for the respondent to 

understand the nature of the claim.39

The Office believes that the final rule 

requires claims to include sufficient 

information for the respondent to be 

properly informed before making an 

opt-out election or when responding to 

the claim. The eCCB will give the 

claimant information as to how to select 

the category of the work or to describe 

it and provide the respondent with 

information and helpful context 

regarding the nature of the claim. If the 

work has already been registered, the 

claim will include the registration 

number, so that the respondent also has 

the ability to look up the work in the 

Office’s registration database. 

In response to commenters’ 

observations that some of the technical 

pleading requirements may be too 

stringent, the Office made changes to 


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40 86 FR 53905. 

41 Id. 

42 Id. at 53907. 

43 Id. at 53900. 

44Copyright Alliance et al. Initial NPRM 

Comments at 15. 

45 Verizon Initial NPRM Comments at 3. 

46AIPLA Initial NPRM Comments at 1–2. 

47Amazon Initial NPRM Comments at 3–4; 

Verizon Initial NPRM Comments at 1; Computer & 

Comm’s Indus. Ass’n (‘‘CCIA’’) Initial NPRM 

Comments at 2–3; OTW Initial NPRM Comments at 

4–5. 

48 86 FR 69890, 69893–94 (Dec. 8, 2021). 

49Amazon Initial NPRM Comments at 3–4; CCIA 

Initial NPRM Comments at 2–3. 

50 86 FR 53906. 

51Amazon Initial NPRM Comments at 3–4; CCIA 

Initial NPRM Comments at 2–3. 

52Copyright Alliance et al. Initial NPRM 

Comments at 12. 

53 Id. 

ease the burden on claimants while 

keeping respondents’ interests in mind. 

First, the Office has removed the 

requirement that a claim must include 

a caption.40 Claimants still must 

identify all parties as part of the claim, 

but the proposed rule could be read to 

suggest that a claimant must separately 

provide a caption, which was not the 

Office’s intention. Instead, eCCB will 

generate the caption from the 

information provided by the claimant. 

Second, the proposed rule required the 

claimant to identify an address for each 

respondent in every instance at the time 

the claim is filed.41 Recognizing that 

determining a respondent’s address may 

be challenging and time-consuming, the 

Office included a provision that enables 

claimants who are running up against 

the statute of limitations to file their 

claims without identifying the 

respondent’s address. Such a claimant 

must certify that the statute of 

limitations is likely to expire within 30 

days of the date the claim is filed and 

provide the basis for such belief. The 

claimant will, however, have to provide 

the respondent’s address before the 

claim can continue further. Third, in 

recognition of the fact that claimants 

may not know the specific dates when 

the infringing activity began or ended, 

the final rule requires claimants to 

identify when the infringement began 

and, if applicable, ended, but only to the 

extent known. 

2. Contact Information 

In the NPRM, claimants were required 

to provide their email addresses and 

telephone numbers as part of the initial 

notice. The exception to this was where 

the claimant was represented by legal 

counsel, in which case the counsel’s 

contact information would appear 

instead.42 The Office noted that making 

additional contact information for the 

claimant available to the respondent 

may facilitate communication, 

including with respect to settlement, but 

it may implicate other concerns as well, 

including some related to privacy.43

Commenters were split on this issue. 

The Copyright Alliance et al. agreed 

with the privacy concerns raised by the 

Office and believed that making contact 

information available to a respondent 

should be optional rather than 

mandatory.44 Verizon did not think that 

the Office should be encouraging parties 

to communicate about settlement 

outside the CCB process.45 AIPLA 

acknowledged the privacy concerns, but 

thought that the benefits of facilitating 

communication between the parties 

early on in the process outweighed any 

harm and noted that comparable forums 

require claimants to provide some form 

of contact information.46

The Office considered these 

comments and determined that 

claimants must provide a phone 

number, email address, and mailing 

address as part of the claim and initial 

notice, and respondents must provide a 

phone number, email address, and 

mailing address as part of the response. 

However, if a party is represented by 

counsel, that party’s phone number and 

email address will be accessible to the 

CCB staff but will not be made available 

to the opposing party; the party’s 

counsel’s phone number and email 

address will be made available instead. 

The Office believes that making this 

contact information available will not 

only facilitate settlement, but will 

enable parties to communicate 

throughout the proceeding and 

exchange information through 

discovery. The final rule reflects these 

changes. 

3. Bad-Faith Conduct at Claim Initiation 

Stage 

Several commenters requested that 

the Office adopt regulations to curb 

abusive use of the CCB.47 These 

comments were submitted before the 

Office published its NPRM on active 

proceedings, which includes provisions 

designed to prevent and address badfaith conduct and which should address 

many of the concerns raised.48

However, some commenters raised 

specific concerns about abuse at the 

claim initiation stage. For example, two 

commenters pointed out that the NPRM 

did not require the copyright owner to 

certify the claim.49 Instead, the 

proposed rule required the party 

submitting the claim, who may be 

another claimant or a claimant’s 

authorized representative, to certify that 

the information in the claim is accurate 

and truthful.50 The commenters 

suggested that copyright owners 

themselves be required to certify the 

claim.51 The Office believes that 

requiring each copyright owner to 

submit a separate certification may be 

burdensome and unnecessarily 

complicate the CCB’s streamlined 

electronic filing process, especially in 

instances where there are multiple 

claimants or where a claimant is 

represented by counsel or authorized 

representative. Instead, the Office 

modified the certification rule to require 

certifying parties to affirm that they 

have confirmed the accuracy of the 

information with the claimant or, in the 

case of one claimant certifying a claim, 

with its co-claimants. 

4. Other Comments 

Commenters made additional 

suggestions with respect to claim 

initiation, such as adding a reminder in 

the claim form to check the libraries and 

archives opt-out list prior to filing, and 

providing a space for claimants to 

challenge entities they believe to be 

improperly included on the list.52 The 

Office agrees that claimants should 

check the libraries and archives opt-out 

list before filing a claim and that they 

may challenge an entity’s inclusion on 

the list as part of their claim. The CCB 

may include reminders on its fillable 

claim forms. However, the Office 

believes that the more streamlined the 

claim form is, the more user-friendly it 

will be, and therefore will avoid 

requiring fields on the claim form that 

are targeted to less-than-common 

circumstances. The Office intends to 

include reminders to check the library 

and archives opt-out list where a 

claimant is filing a claim against a 

library or archives, or an employee 

thereof, in the CCB’s educational 

materials, such as the CCB Handbook, 

along with instructions for how to 

challenge an entity’s inclusion on the 

list. 

Similarly, one comment suggested 

that the claim form remind claimants to 

check the designated service agent list.53

The Office currently intends to include 

this as a requirement in eCCB’s claim 

form so that the initial notice may be 

generated based on the information in 

the claim, but the Office does not 

believe that a revision to the regulatory 

language is necessary. The CCB’s 

educational materials will also provide 

information to claimants concerning the 

designated service agent directory. 

Amazon also included 

recommendations for additional eCCB 


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54Amazon Initial NPRM Comments at 2–3. 

55Copyright Alliance et al. Initial NPRM 

Comments at 14. 

56Fordham Initial NPRM Comments at 1–2; OTW 

Initial NPRM Comments at 7–9. 

57OTW Initial NPRM Comments at 8. 

58 86 FR 53899. 

59Copyright Alliance et al. Initial NPRM 

Comments at 24; LCA Initial NPRM Comments 

1–2; Am. Ass’n of L. Libraries (‘‘AALL’’) Initial 

NPRM Comments at 1. 

60 86 FR 53898 (citing H.R. Rep. No. 116–252 at 

22). 

61OTW Initial NPRM Comments at 11 (citing H.R. 

Rep. No. 116–252, at 22). 

62H.R. Rep. No. 116–252, at 22. 

63Amazon Initial Comments at 7; CCIA Initial 

Comments at 3. 

64Copyright Alliance et al. Reply Comments at 

11–12. 

65Amazon Initial NPRM Comments at 7. 

functionality, such as including 

optimized search and filtering tools, indocket searching, and a docket alert 

system.54 The Office agrees with these 

recommendations and notes that eCCB 

will have some of these features. 

Though eCCB may not include every 

one of these features in the first instance 

due to time constraints, the Office will 

continue to explore ways to make eCCB 

as functional and user-friendly as 

possible. 

Commenters noted that the NPRM 

requests a claimant asserting a 

misrepresentation claim to identify the 

sender and recipient of the takedown 

notice and suggested that the claim form 

make clear that the sender and recipient 

fields were not intended to identify the 

online service provider.55 However, this 

appears to be a misreading of the NPRM. 

The Office intended for the claimant to 

identify the online service provider in 

these fields, as that is relevant 

information to describe the 

misrepresentation claim. 

Commenters also addressed the 

proposed rule concerning additional 

matter that may accompany a claim. 

Some commenters believed that 

documentation in support of the claim 

should be required, noting that this 

would assist respondents in 

understanding the nature of the claim.56

The Office appreciates these comments 

but has determined that additional 

matter in support of a claim at this stage 

should remain optional. This approach 

avoids imposing an unnecessary burden 

on some claimants, particularly where a 

claim relates to works that are large, 

unwieldy, or sensitive. Furthermore, as 

even infringement claims can be very 

different from each other, it would be 

difficult to accurately tell a claimant 

exactly what to attach at the claim stage 

without addressing many potential 

topics. If a claimant does not provide 

sufficient information to place the 

respondent on notice as to the nature of 

the claim, a Copyright Claims Attorney 

will request that the claimant provide 

additional detail as part of the CCB’s 

compliance review process. 

Additionally, the Organization for 

Transformative Works suggested that 

claims be required to prominently state 

whether the work at issue is registered, 

such as in boldface type or otherwise 

highlighted.57 While the claim will state 

whether the work at issue has been 

registered, and the Office understands 

that the registration status of a work 

may be relevant to respondents in 

determining whether to opt out, the 

Office does not think that emphasizing 

this information in the way that is 

suggested will meaningfully benefit a 

respondent who may not understand the 

consequences of registration status. 

Indeed, highlighting the fact that a work 

has not been registered may cause a 

respondent who is not familiar with the 

registration requirements before the CCB 

to conclude that the claim is deficient 

in some way and that they need not take 

it seriously. Instead, the Office intends 

to explain the consequences of a work’s 

registration status in the CCB’s 

educational materials, so that potential 

respondents can weigh this factor in 

making an informed decision as to 

whether to opt out or not. 

C. Review of the Claim by Copyright 

Claims Attorneys 

1. Compliance Review 

As noted in the NPRM, the statute 

describes the compliance review 

process in some detail and the Office 

proposed regulations to clarify the scope 

of the review.58 The Office received 

several comments on the compliance 

review process. 

Many commenters requested that 

Copyright Claims Attorneys check the 

libraries and archives opt-out list during 

the compliance review process to ensure 

that those entities that have opted out 

do not receive service documents from 

claimants.59 Although claimants are 

encouraged to check this list before 

filing, Copyright Claims Attorneys will 

also review the library and archives optout list as part of their compliance 

review. The Office does not believe that 

this requires a regulatory change. 

The Office also received a comment 

concerning the compliance review of 

pro se claims as compared to those of 

represented claimants. In the NPRM, the 

Office stated that ‘‘[t]he claimant will be 

asked to be as detailed as possible, but, 

as contemplated by Congress, the CCB 

will ‘construe liberally’ any information 

in the claim to satisfy regulatory 

requirements during claim review.’’ 60

The Organization for Transformative 

Works noted that ‘‘to construe liberally 

‘any information’ goes beyond 

Congress’s intent’’ and that the 

legislative history cited in the NPRM 

only instructs that pro se claims are to 

be construed liberally. It argued that to 

construe all claims liberally ‘‘would 

violate long-standing procedural 

principles and provide an unwarranted, 

unfair advantage to claimants.’’ 61 The 

Office acknowledges that the legislative 

history discussing liberal construction 

of claims related to pro se claims 62 and 

agrees that only pro se claims will be 

construed liberally. Since the proposed 

regulatory text says nothing about 

liberal construction of pleadings, no 

change to the regulatory language is 

needed. 

2. Dismissal for Unsuitability 

The Office received comments about 

whether secondary liability claims 

should be permitted before the CCB. 

Some commenters asserted that 

‘‘secondary liability cases are generally 

too complicated for CCB resolution’’ 

and ‘‘should be categorically 

excluded.’’ 63 The Copyright Alliance et 

al. responded that ‘‘[s]ince the law 

specifically permits claims of 

infringement, it would be inappropriate 

for the Copyright Office to categorically 

exclude claims of secondary liability 

which as much constitute claims of 

infringement as do claims of direct 

liability.’’ 64 The Office agrees that it is 

not appropriate to categorically exclude 

claims of infringement based upon 

particular theories of liability, and there 

is nothing in the statute that supports 

such exclusions. While certain claims 

involving secondary liability may be 

unsuitable, the CCB will determine 

suitability on a case-by-case basis. One 

of the proponents of a categorical ban 

suggested, in the alternative, that the 

Office make clear in the CCB Handbook 

that secondary liability cases are 

generally too complicated for CCB 

resolution.65 At this point, however, the 

Office does not believe it would be 

appropriate to make sweeping 

statements about any claim category’s 

suitability. 

To provide additional clarity, the final 

rule adds specific procedures for a party 

to request dismissal of a claim or 

counterclaim for unsuitability. Similar 

to subject-matter jurisdiction issues in 

federal court, a party can submit a 

request, at any time, that the CCB find 

a claim unsuitable to be heard by the 

CCB, and the opposing party will have 

the opportunity to respond. The CCB 


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66 86 FR 53899–53900, 53902. 

67 Id. at 53899–53900. 

68 Id. at 53902. 

69SFWA Initial NPRM Comments at 2–3; Amazon 

Initial NPRM Comments at 4. 

70SFWA Initial NPRM Comments at 2–3. 

71AIPLA Initial NPRM Comments at 2. 

72Compare Fordham Initial NPRM Comments at 

2; OTW Initial NPRM Comments at 6–7 with 

Copyright Alliance et al. Reply NPRM Comments at 

13–14. 

73Copyright Alliance et al. Initial NPRM 

Comments at 16–17. 

74OTW Initial NPRM Comments at 6–7; SFWA 

Initial NPRM Comments at 3. 

75Copyright Alliance et al. Initial NPRM 

Comments at 17–18. 

76OTW Initial NPRM Comments at 7. 

77Copyright Alliance et al. Initial NPRM 

Comments at 18. 

78 86 FR 53898. 

79Copyright Alliance et al. Initial NPRM 

Comments at 12. 

80 87 FR 12861 (Mar. 8, 2022). 

can also raise the issue of unsuitability 

at any point on its own. 

D. Initial and Second Notices 

The NPRM set forth procedures 

governing the initial notice of 

proceeding that a claimant must serve 

on a respondent along with the claim, 

as well as the second notice of 

proceeding that the CCB will issue to 

respondents who have not opted out.66

Specifically, the proposed rule 

mandated that the initial notice describe 

the CCB, the nature of CCB proceedings, 

basic information about the claim(s) and 

claimant(s), the respondent’s right to opt 

out, and the consequences of opting out 

or proceeding. In addition, the initial 

notice will explain how the respondent 

can find further information about 

copyright, the CCB, and how to access 

eCCB.67 Similarly, the proposed rule 

instructed that the second notice would 

mirror the initial notice in substance 

and would be sent no later than 20 days 

after the claimant files proof of service 

or a completed waiver of service (unless 

the respondent already has opted out).68

Commenters emphasized the 

importance of avoiding overly technical 

or formal language in the notices,69 and 

SFWA believed that the notices should 

do more to highlight the voluntary 

nature of the CCB and the respondent’s 

ability to opt out.70 Some commenters 

suggested including a list of commonly 

available defenses in the notice.71 Other 

commenters were split on whether the 

notice should provide information on 

the differences between federal court 

litigation and CCB proceedings.72 The 

Copyright Alliance et al. did not think 

that the notices should provide 

information on how to register for eCCB, 

under the theory that such information 

may distract the respondent during the 

opt-out period.73 Two commenters 

suggested that the Office publish the 

language of the notices for public 

comment.74

The Office agrees that the notices 

should use clear and simple language 

while still appearing legitimate and 

having the authority of a governmental 

body. As reflected in both the NPRM 

and the final rule, the Office intends to 

have both notices describe the 

respondent’s ability to opt out. 

However, the Office believes that the 

notices should take an impartial 

approach, and should neither encourage 

nor discourage opt-out elections. The 

Office also wishes to avoid including 

unnecessary detail in the notices, which 

may discourage some respondents from 

reading them in full. Instead, in 

addition to providing the key 

information needed, the notices will 

refer respondents to additional sources 

of information, where they can learn 

more about available defenses and the 

differences between federal court 

litigation and CCB proceedings, among 

other topics. The Office understands the 

value of public input concerning the 

language of the notices. Once the 

notices are public, the Office welcomes 

feedback from potential CCB 

participants. 

The Copyright Alliance et al. 

suggested that the proposed rule be 

revised to make clear that the claim 

served with the initial notice must be 

the version that was found compliant by 

the Copyright Claims Attorney.75

Similarly, the Organization for 

Transformative Works believed that the 

regulatory language may create the 

erroneous implication that a party other 

than the CCB may send the second 

notice,76 while the Copyright Alliance et 

al. sought to clarify language in the 

preamble that incorrectly suggested that 

a respondent may file a response before 

the CCB serves the second notice.77 The 

Office agrees with these comments, and 

has revised the final rule in line with 

these suggestions. 

In response to suggestions that the 

Office do more to prevent abusive use 

of the CCB before a proceeding becomes 

active, the Office has included in the 

final rule a requirement that a claimant 

may not include with the service of the 

initial notice, claim, and related 

materials any additional substantive 

communications such as settlement 

demands, additional descriptions of the 

claim or the strength of the claim, or 

exhibits that were not filed as part of the 

claim. This rule is designed to prevent 

claimants from intimidating a 

respondent into participating in the 

proceeding or settling the claim, 

including by attempting to pass off their 

own materials as the CCB’s. However, 

the rule should not prevent claimants 

and respondents from communicating 

during the opt-out period or engaging in 

good-faith settlement discussions. Such 

communications must occur separately 

from service of the initial notice, claim, 

and related materials to make clear to 

the respondent that they do not carry 

the CCB’s imprimatur. 

The Office also has standardized the 

information in both the initial notice 

and the second notice, where 

appropriate. Further, the proposed rule 

contemplated that the claimant would 

submit a completed initial notice form 

simultaneously with the claim form, 

which a Copyright Claims Attorney 

would review as part of compliance 

review and issue with an Office seal 

upon approval.78 To make the process 

more streamlined and efficient, the CCB 

rather than the claimant will be 

responsible for creating the initial 

notice, which will be generated from the 

compliant claim. The final rule reflects 

this change. Similarly, the proposed 

rule’s definition of ‘‘initial notice’’ 

erroneously suggested that initial 

notices would accompany 

counterclaims in addition to claims, as 

the Copyright Alliance et al. pointed 

out,79 and the service provisions 

incorrectly suggested that counterclaims 

would be served like claims. These 

references to counterclaims have been 

removed in the final rule. 

E. Service 

1. Reorganization of Proposed §§ 222.5 

and 222.6 

In the NPRM, §§ 222.5 (‘‘Service; 

designated service agents’’) and 222.6 

(‘‘Waiver of service’’) addressed service 

of the initial notice of proceedings and 

other documents in CCB proceedings, 

including a provision permitting 

corporations, partnerships, and other 

unincorporated associations to 

designate agents to receive service of the 

initial notice and claim. To permit such 

entities to designate agents in advance 

of the day the CCB opens its doors, the 

provision regarding designations of 

service agents and the Office’s directory 

of service agents has been broken out 

from this rulemaking and has already 

been published as a partial final rule.80

The provision regarding designated 

service agents has been moved to 

§ 222.6 (‘‘Designated service agents’’) 

and the provision regarding waiver of 

service has been moved into § 222.5, 

which has been renamed ‘‘Service; 

waiver of service; filing.’’ Section 222.5 

has been reorganized and some of the 

text has been revised to restate with 


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81See, e.g., CCIA Initial NPRM Comments at 3; 

Copyright Alliance et al. Initial NPRM Comments 

at 19; MPA, RIAA & SIIA Initial NPRM Comments 

at 3–4. 

82See 17 U.S.C. 1506(g)(5). 

83Copyright Office regulations take a similar 

approach with respect to the online filing 

requirement for group registrations of unpublished 

works. See 37 CFR 202.4(c)(10) (‘‘In an exceptional 

case, the Copyright Office may waive the online 

filing requirement . . . or may grant special relief 

from the deposit requirement . . . subject to such 

conditions as the Associate Register and Director of 

the Office of Registration Policy and Practice may 

impose on the applicant.’’). 

84 86 FR 53909. 

85 Id. at 53908–09. 

86 17 U.S.C. 1506(g)(6). 

87See Engine Initial NPRM Comments at 3. 

more clarity what was in the proposed 

rule. 

One such clarification relates to 

designated service agents. Various 

commenters observed that, as required 

by the statute, when a corporation, 

partnership, or unincorporated 

association has designated a service 

agent, a claimant must serve the initial 

notice and claim upon that agent. They 

requested that the regulations clarify 

that this is the case.81 The Office agrees 

with that interpretation of the statute,82

and did not believe a regulatory 

provision was necessary in light of the 

statutory language, so such a provision 

was not in the NPRM. However, in light 

of the comments about possible 

confusion, § 222.5(b)(2)(ii) now provides 

that when an entity has designated a 

service agent, service of the initial 

notice and claim must be made on that 

service agent. 

2. Service of Order Regarding Second 

Filing Fee and Electronic Filing 

Registration 

As discussed below, to accommodate 

a two-tiered filing fee system, the final 

rule includes a new provision for an 

order, after a proceeding has become 

active for all respondents, requiring the 

claimant to pay the second fee and 

requiring all parties who have not yet 

registered for eCCB to do so. Section 

222.5 has been revised to address the 

service of that order. Service of that 

order upon each party will depend upon 

whether that party has already 

registered for eCCB. The CCB will serve 

the order through eCCB for those parties 

who are already registered users. For 

parties who have not yet registered for 

eCCB, the order will be served in the 

same manner as the second notice—i.e., 

by mail and, if the CCB has an email 

address for the party, by email as well. 

3. Revisions Regarding Filings and 

Service of Documents 

The final rule includes a few minor 

revisions, for purposes of efficiency and 

clarity, to the rules regarding service of 

documents subsequent to the service of 

the initial notice. The final rule also 

revises how an unrepresented 

individual can, in exceptional 

circumstances, use means other than 

eCCB for filings and the service of 

filings. 

As a general rule, parties will need to 

use eCCB for all filings and, once a 

proceeding has become active, a filing 

on eCCB will constitute service on all 

registered eCCB users linked to a case. 

The NPRM provided that unrepresented 

parties could avoid eCCB by certifying 

that they were unable to use eCCB or 

that doing so would cause an undue 

hardship. The NPRM then presented 

several alternative means of service of 

filings and documents, subsequent to 

the service of the initial notice, in 

proceedings involving a party not using 

eCCB. Given how burdensome this 

would be on all parties, and to 

maximize the number of parties using 

eCCB while still allowing for 

accessibility to CCB proceedings for 

those who are unable to use it, the final 

rule states that those unrepresented 

individuals who have exceptional 

circumstances preventing them from 

accessing eCCB should contact the CCB, 

so that alternate arrangements can be 

made. Determining the necessary 

modifications, if any, on a case-by-case 

basis will give the CCB the flexibility to 

formulate solutions based on the 

particular challenges of the parties.83

The NPRM would have required that 

service of the second notice, which is 

made by the CCB, be made by certified 

mail. The final rule has eliminated the 

requirement that the second notice be 

sent by certified mail, but it is likely 

that the Office will send such notices 

using some form of U.S. Postal Service 

tracking to confirm that they were 

actually delivered. 

There was contradictory language in 

the NPRM regarding service of requests 

for discovery and discovery responses. 

On one hand, the NPRM provided that 

‘‘discovery requests and responses must 

not be filed unless they are used in the 

proceeding, as needed, in relation to 

discovery disputes or submissions on 

the merits.’’ 84 On the other hand, it 

included ‘‘[a] discovery document 

required to be served on a party’’ among 

the documents that must be served ‘‘in 

the manner prescribed in paragraph 

(d)(3),’’ which stated that ‘‘[a] document 

is served under this paragraph by 

sending it to a registered user by filing 

it with [eCCB] or sending it by other 

electronic means.’’ 85 However, it was 

not the Office’s intent to require that 

discovery documents be filed with the 

CCB. The final rule has been clarified to 

provide that, unless the parties agree to 

another method of service, discovery 

requests and responses shall be served 

on other parties by email if the format 

and size of the documents makes such 

service reasonably possible. When such 

service is not reasonably possible (e.g., 

due to size or format issues), the parties 

should attempt to agree to other 

arrangements. In the absence of an 

agreement, such documents that cannot 

be served by email should be served by 

mail. 

4. Waiver of Personal Service 

The CASE Act permits a respondent 

to waive personal service of process— 

i.e., to agree in writing that the claimant 

need not go through the formal 

procedures for service of the claim and 

initial notice. A claimant may send a 

request for a waiver of personal service, 

along with the initial notice and the 

other documents to be served with that 

notice, to the respondent by mail or 

other reasonable means. The respondent 

may return the signed waiver to the 

claimant, which constitutes acceptance 

and proof of service.86

Engine expressed concern that when 

sending requests for waivers of service 

to respondents, some claimants might 

use misleading or intimidating 

language, similar to concerns expressed 

by other commenters relating to service 

of the initial notice and claim. Engine 

suggested that each claimant be required 

to send to the CCB a copy of everything 

that was included in the waiver package 

that the claimant sends to a 

respondent.87 Such a requirement 

would impose administrative burdens 

on the CCB staff and go well beyond 

requirements for cases in federal court. 

The Office believes that a more efficient 

solution would be to take the same 

approach that has been taken with 

respect to service, and the final rule 

provides that the request for waiver of 

personal service shall be prepared using 

a form prepared by the CCB and shall 

not be accompanied by any other 

substantive communications. 

The final rule includes additional 

minor revisions regarding waivers of 

service. The NPRM had proposed that a 

waiver shall contain the respondent’s 

email address and telephone number. 

However, consistent with revisions 

made to provisions governing the claim, 

the initial notice, and the response to 

the claim, the final rule provides when 

a respondent is represented, the waiver 

returned by a respondent should 

include the email address and telephone 

number not of the respondent, but 

rather of the respondent’s counsel or 


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88 86 FR 53902, 53907. 

89See 17 U.S.C. 1506(i). 

90 Id. at 1506(g). 

91MPA, RIAA & SIIA Initial NPRM Comments at 

4. 

92See 86 FR 69904 (proposed § 220.3). 

93Copyright Alliance et al. Initial NPRM 

Comments at 19 (citing 86 FR 53908–09 (proposed 

§ 222.5(d)(3)(ii))). 

94See id. 

95See id. at 19–20. 

96Fed. R. Civ. P. 5(b)(2)(E) (‘‘A paper is served 

under this rule by . . . sending it to a registered 

user by filing it with the court’s electronic-filing 

system or sending it by other electronic means that 

the person consented to in writing—in either of 

which events service is complete upon filing or 

sending, but is not effective if the filer or sender 

learns that it did not reach the person to be 

served.’’). 

97Eric Goldman Initial NPRM Comments at 1. 

98Eric Goldman Initial NPRM Comments at 1. 

99Copyright Alliance et al. Reply NPRM 

Comments at 15. 

100 86 FR 53902. 

101 Id. at 53902–03. 

102Engine Initial NPRM Comments at 4; CCIA 

Initial NPRM Comments at 4–5. 

authorized representative. Similarly, the 

final rule now provides that in cases 

where the respondent is represented, 

the waiver may be signed by the 

respondent’s counsel or authorized 

representative. 

In the NPRM, the Office proposed a 

rule that the proof of service must be 

filed within seven days of service, 

noting that the CCB will issue the 

second notice to the respondent no later 

than twenty days after receipt of a proof 

of service filed by the claimant.88 The 

seven-day deadline was imposed so that 

the CCB would receive prompt notice 

that the initial notice had been served 

and could issue the second notice to the 

respondent within the following twenty 

days. Because one purpose of the 

second notice is to remind the 

respondent of its opt-out choice, it is 

vital that the second notice be served 

well before the expiration of the opt-out 

period, which is 60 days following 

service of the initial notice.89

The CASE Act provides only that 

proof of service of the initial notice 

must be filed not later than 90 days after 

the CCB notifies the claimant to proceed 

with service.90 That provision continues 

to serve as an ultimate deadline for the 

filing of proof of service. However, to 

ensure that the second notice is 

delivered to the respondent well in 

advance of the expiration of the opt-out 

period, the CCB needs to receive the 

proof of service soon after service takes 

place and well in advance of the opt-out 

date. Otherwise, the entire opt-out 

period could pass before the CCB is 

notified that service has been completed 

and the second notice would not 

meaningfully inform the respondent 

regarding its opt-out options. In the final 

rule, the Office has clarified that the 

seven-day deadline to advise the CCB 

regarding service on respondent applies 

to the filing of both proof of service and 

waiver of service, as applicable. As 

noted in the regulations, the 

consequence of a claimant failing to file 

its proof of service or waiver of service 

within the seven-day deadline is a 

possible extension of the respondent’s 

opt-out deadline, depending on the 

circumstances. 

5. Other Matters 

One comment urged that the Office 

provide claimants with clear, simple, 

plain-English instructions for effecting 

valid service, including a requirement 

that claimants search the online 

database of service agents and step-bystep instructions on how to serve such 

agents.91 The Office intends to provide 

such information and instruction in 

other materials made available to the 

public, including the CCB Handbook.92

Other commenters expressed concern 

that the proposed rule for documents 

served electronically states, ‘‘service is 

complete upon filing or sending, 

respectively, but is not effective if the 

filer or sender learns that it did not 

reach the person to be served.’’ 93 The 

commenters observed that it is unclear 

what ‘‘learns’’ means and the 

uncertainty could enable intended 

recipients to make unsubstantiated 

claims that they did not receive 

documents that had been transmitted to 

them.94 They proposed that the 

language be revised to include a proviso 

that the intended recipient must timely 

notify the sender that the document was 

not received.95 The Office notes that the 

language in question is taken almost 

verbatim from Rule 5(b)(2)(E) of the 

Federal Rules of Civil Procedure.96 The 

Federal Rule has no requirement that 

the intended recipient must notify the 

sender that the document was not 

received, and it is evident that unless a 

party was expecting to receive a 

particular document at a particular time, 

the intended recipient would have no 

way of knowing that the other party had 

attempted, but failed to accomplish, 

delivery of the document. The Office 

sees no reason to depart from the rule 

that has long worked for the federal 

courts. 

The Office has extended the provision 

that service is not effective if the sender 

learns that it did not reach the party to 

be served to cover service by mail as 

well as email. There does not appear to 

be any basis for treating these methods 

separately because the purpose of the 

provision is to recognize that service is 

not effective when it was not completed. 

Further, if the sender of the material has 

actual notice that service was not 

completed, such as if it is returned from 

the U.S. Post Office because it was not 

delivered, the sender should have the 

same responsibility to make sure it is 

correctly served as with service by 

email. 

Professor Eric Goldman 

acknowledged that the statutory 

provisions and proposed rule 

‘‘incorporate[ ] existing service rules that 

apply to judicial proceedings,’’ but 

argued that the CCB should go further 

and ‘‘rigorously scrutinize service’’ and 

should ‘‘validate that the right 

defendant was identified and that 

service was made to that person.’’ 97

While implicitly acknowledging that 

this was not an issue created by or 

peculiar to the CCB (Professor Goldman 

noted that ‘‘service rules can be gamed 

in non-CCB contexts’’), he suggested 

that the CCB should ‘‘invest some 

resources in identifying—and 

punishing—service abuse.’’ 98 The 

Copyright Alliance et al. responded by 

noting that the possibility of 

misidentifying a defendant or a 

defendant’s address ‘‘is a possibility that 

also exists in federal court, and it is 

unreasonable to expect that the CCB 

could somehow ensure that the claimant 

does not misidentify the respondent or 

the respondent’s address.’’ 99 The Office 

agrees that the CCB cannot act as a 

guarantor that a claimant has served 

process on the correct respondent at the 

correct address, which is an issue that 

faces all tribunals regardless of size or 

jurisdiction. Moreover, the Office notes 

that the CCB has additional notices and 

safeguards against defaults that 

potentially reduce the effects of service 

abuse or mistake. 

F. Opt-Out Procedures 

The NPRM also set forth the 

procedures a respondent must follow to 

opt out of a proceeding. Under the 

proposed rule, a respondent may opt out 

by using either a paper or electronic 

form that requires provision of the 

docket number for the claim, a 

verification code, certain identifying 

information, and a signed 

affirmation.100 The proposed rule 

required that each respondent 

independently fill out the opt-out form. 

It also specified that an opt-out would 

be effective against duplicate claims, but 

not unrelated claims between the same 

parties.101

Commenters emphasized the 

importance of making the opt-out 

process simple and accessible.102 CCIA 

questioned whether it was necessary to 


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103CCIA Initial NPRM Comments at 4–5. 

104Copyright Alliance et al. Reply NPRM 

Comments at 18. 

105 86 FR 53903. 

106Copyright Alliance et al. Initial NPRM 

Comments at 19–20. 

107 Verizon Initial NPRM Comments at 3. 

108AIPLA Initial NPRM Comments at 2. 

109 Id. 

110 Id. 

111Fordham Initial NPRM Comments at 3. 

112Lisa Corson Initial NPRM Comments at 1. 

113 86 FR 53902–03, 53912. 

114MPA, RIAA & SIIA Initial NPRM Comments at 

8–9 (citing 17 U.S.C. 1504(c)(4)(B)) (The comment 

suggested a rule focusing on whether the claim 

arises out of the same transaction or occurrence that 

is the subject matter of the original claim.). 

115See Copyright Small Claims at 105. 

116SFWA Initial NPRM Comments at 3–4. 

117OTW Initial NPRM Comments at 9, 11. 

118Copyright Alliance et al. Reply NPRM 

Comments at 18–19. 

119 17 U.S.C. 1506(i). 

120Copyright Alliance et al. Initial NPRM 

Comments at 23; Amazon Initial NPRM Comments 

at 6. 

121 Verizon Initial NPRM Comments at 2. 

require respondents using the electronic 

opt-out form to include a verification 

code when this code was not required 

for respondents using the paper form,103

while others supported the use of the 

code as a security measure.104 The 

Office believes that the verification code 

imposes a minimal burden while adding 

a necessary protective measure to 

ensure that only the respondent is able 

to opt out. The Office also agrees that 

electronic and paper opt-out forms 

should not be treated differently in this 

respect and has modified the rule to 

require the verification code, which will 

be provided along with the initial and 

second notices, for paper opt-out forms 

as well. The Office notes that eCCB is 

set up to make opting out easy, and its 

use is highly encouraged. Respondents 

will be able to find the appropriate 

claim on eCCB, identify themselves, and 

enter the opt-out code without needing 

to register. They will then be sent a 

confirmation for their records. 

The NPRM requested comments on 

whether the rule should give 

respondents the ability to rescind an 

opt-out.105 Commenters generally 

opposed such a provision, arguing that 

the Office lacked statutory authority to 

permit the rescission of opt-outs,106 that 

claimants could use the availability of 

this mechanism to harass 

respondents,107 that such a mechanism 

would impose an administrative burden 

on the CCB,108 and that rescission may 

go against a claimant’s wishes or raise 

constitutional concerns where a federal 

court’s jurisdiction has been invoked.109

Commenters suggested that if such a 

mechanism was introduced, the 

decision to rescind an opt-out should be 

accompanied by conditions, such as a 

requiring the claimant’s consent,110 the 

reimbursement of the claimant’s filing 

fee,111 or other financial penalties.112

After consideration of these 

comments, the Office has decided not to 

allow the rescission of opt-outs by 

respondents, which would result in the 

unilateral reinitiation of a CCB 

proceeding. At the same time, the Office 

expects that there will be scenarios 

where, after opting out, respondents 

change their minds and determine that 

they would prefer to proceed before the 

CCB. In those circumstances, the 

respondent could contact the claimant 

with an offer to submit the parties’ 

dispute to the CCB. The claimant would 

have a choice of whether to accept the 

offer. Accordingly, the Office is 

modifying the proposed rule to permit 

the same claim to be refiled following 

an opt-out where both parties have 

consented to the refiling. 

In the NPRM, the Office proposed a 

rule intended to prevent a claimant from 

refiling a claim against a respondent 

who has already opted out with respect 

to that claim. Recognizing that such a 

rule should apply not only to verbatim 

repetitions of the previous claim but 

also to restatements of the same claim 

with different language, the Office 

proposed a rule that would protect a 

respondent who has opted out against a 

future claim ‘‘covering the same acts 

and the same theories of recovery.’’ 113

Commenters raised concerns with the 

standard proposed in the NPRM. One 

comment suggested that the proposed 

rule adopted the wrong standard and 

that the correct standard is found in the 

statutory text relating to allowable 

counterclaims.114 However, this rule is 

intended to address the repeated filing 

of a claim against a respondent that has 

previously opted out, not the scope of 

permissible counterclaims, which the 

statute limits to ensure that the CCB 

operates ‘‘efficiently and within the 

scope of its expertise.’’ 115 Another 

comment sought clarification as to how 

the rule would be applied in particular 

factual scenarios.116 The Office 

understands that such examples may be 

helpful and expects to offer some in the 

Handbook. After considering the 

comments, the language in the final rule 

has been modified to make clear that the 

prohibition on refiled claims extends 

not only to identical or verbatim claims 

previously filed by the claimant from 

which the respondent has already opted 

out, but also to claims involving the 

same parties that cover the same acts 

and theories of recovery in substance, 

notwithstanding minor variations. 

The Office received divided 

comments on whether and in what 

circumstances a respondent may seek an 

extension of the opt-out period. The 

Organization for Transformative Works 

suggested that respondents be permitted 

to extend the opt-out period when they 

need additional information to 

understand the nature of the claim or 

more time to seek the assistance of 

counsel,117 while other commenters 

disagreed, arguing that this would result 

in delays in CCB proceedings, which are 

intended to be efficient.118 The Office 

recognizes that there may be limited 

situations where a respondent needs 

more than 60 days to evaluate a more 

complex claim or to seek counsel, and 

the claimant may prefer that the opt-out 

period be extended rather than the 

respondent immediately opting out. The 

Office notes, however, that the statute 

gives the CCB the authority to extend 

the opt-out period in exceptional 

circumstances and upon written notice 

to the claimant when the extension is in 

the interests of justice.119 The Office has 

made this explicit in the final rule and 

has included a provision stating that 

requests for an extension of the opt-out 

period may be made by the respondent 

individually or the parties jointly. The 

CCB Handbook will encourage 

respondents to seek the claimant’s 

consent, as joint requests to extend the 

opt-out period can be more easily 

granted. 

Commenters also urged the Office to 

consider publishing a list of 

respondents who have opted out, 

arguing that doing so would be helpful 

to potential claimants’ decision-making 

process.120 The Office is not creating 

such a list at this time, but will consider 

doing so in the future without the need 

for a regulation. The Office notes that 

this list would only be helpful if it 

includes a denominator representing the 

total number of claims filed against a 

particular respondent and not merely a 

numerator representing the number of 

times that the respondent has opted out. 

The Office further notes that eCCB will 

in any event contain information about 

claimants and respondents and will be 

public and searchable by parties. 

Additionally, Verizon suggested that 

the rule make clear that the opt-outs of 

respondents who were not properly 

served be treated as effective.121 The 

Office agrees and has included such a 

provision in the final rule. 

The Office has also made additional 

procedural changes to streamline the 

opt-out process. First, the final rule 

permits a respondent’s representative to 

complete the opt-out form, provided 

that they certify that they were directed 

and authorized by the respondent to do 


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122 86 FR 53909. 

123 Id. at 53903. 

124 Id. at 53910. 

125 Id. at 53903. 

126 Id. 

127Copyright Alliance et al. Initial NPRM 

Comments at 20–21; Engine Initial NPRM 

Comments at 4; MPA, RIAA & SIIA Initial NPRM 

Comments at 10; Fordham Initial Comments at 3– 

4. But see Lisa Corson Initial NPRM Comments at 

1. 

128Engine Initial NPRM Comments at 4. 

129Copyright Alliance et al. Initial NPRM 

Comments at 20–21; Copyright Alliance et al. Reply 

NPRM Comments at 15. 

130MPA, RIAA & SIIA Initial NPRM Comments at 

10. 

131Fordham Initial NPRM Comments at 3–4; 

Anonymous Reply NPRM Comments at 4–5;. 

132Copyright Alliance et al. Initial NPRM 

Comments at 21. 

133 17 U.S.C. 1504(c). 

so. The Office has included this 

provision to enable represented 

respondents to opt out more easily, 

especially those who cannot themselves 

use eCCB but have an attorney who can. 

The Office does not believe there is a 

compelling reason to allow a party to be 

represented for other aspects of a CCB 

proceeding, but not the opt out, and this 

rule makes sense for the same reasons 

that the CCB will allow authorized 

representatives for the claimant to 

prepare and certify the claim. 

Respondents will still have to provide 

their representatives with the proper 

opt-out code to enable the 

representative to opt out on their behalf. 

Second, the final rule requires a 

respondent to include certain contact 

information on opt-out forms so that the 

CCB may send the respondent or its 

representative confirmation of the optout. When opting out electronically, the 

respondent must include an email 

address. When opting out using a paper 

form, the respondent must provide 

either an email address or a mailing 

address. Third, the final rule makes 

clear that electronic opt-out forms must 

be submitted by 11:59 p.m. Eastern 

Time on the final day of the opt-out 

period, rather than at midnight. 

G. Order Regarding Second Filing Fee 

and Electronic Filing Registration 

As discussed above, the addition of a 

two-tiered fee system in the final rule 

required additional processes 

concerning payment of the second fee. 

Under the final rule, once a proceeding 

becomes active (i.e., all respondents 

have been served and the time to optout for each respondent has expired 

without all of them opting out), the CCB 

will issue an order to all parties 

requiring that the claimant pay the 

second filing fee within 14 days and 

that any parties who have not yet 

registered for the eCCB do so (unless 

they are a pro se individual and have 

contacted the CCB and the CCB has 

determined that exceptional 

circumstances exist such that the party 

does not have to use eCCB) within 14 

days. After the claimant pays the second 

filing fee and the 14-day period elapses, 

the CCB will issue a scheduling order. 

If any party has not yet registered for 

eCCB by that time, the CCB will serve 

that party with the scheduling order 

outside of eCCB, along with a notice 

reminding the party to register for eCCB 

or contact the CCB if they are unable to 

use it. The notice will also state that a 

failure to comply may ultimately result 

in a determination of the party’s default 

or failure to prosecute. Under the final 

rule, if a claimant fails to submit the 

second payment within the 14-day 

period, the CCB will issue a notice to 

that claimant, reminding them to submit 

the second payment within the next 14 

days. If the claimant still fails to submit 

the second payment, the CCB will 

dismiss the proceeding without 

prejudice, unless doing so would not be 

in the interests of justice. 

H. Response 

In the NPRM, the Office proposed 

procedures for the respondent to file a 

response to a claim.122 As with the 

claim, responses generally must be filed 

using an electronic fillable form 

provided through eCCB.123 In the 

response, the respondent will provide 

identifying information and details 

concerning the dispute, along with a 

certification that the information 

provided in the response is accurate and 

truthful to the best of the certifying 

party’s knowledge.124 Under the 

proposed rule, respondents to 

infringement claims were permitted to 

identify relevant defenses, and given the 

opportunity to attach documentation 

related to their response.125 However, 

the proposed rule did not provide for 

identification of defenses to claims of 

misrepresentation or for declarations of 

noninfringement. 

The Office requested comments 

concerning whether a list of common 

defenses should be provided to 

respondents and, if so, how such a list 

should be provided.126 Commenters 

generally favored including a list of 

common defenses,127 but they were 

divided on how and what details should 

be provided. Engine favored presenting 

defenses in the form of a checklist,128

but others believed that this may 

encourage respondents to raise frivolous 

or baseless defenses and favored 

presenting relevant defenses in the form 

of a list without additional detail.129

Other commenters agreed that the Office 

should present a list of common 

defenses for each type of claim, but 

should make clear that the applicability 

of defenses will depend on the facts at 

issue.130 Finally, two commenters 

agreed that the Office should provide a 

list of common defenses, but thought 

that each defense should be 

accompanied by a brief explanation 

along with links to resources.131

As a preliminary matter, the Office 

agrees that respondents for each type of 

claim—rather than only infringement 

claims—should be permitted an 

opportunity to present defenses beyond 

just disputing the claim, and it has 

revised the final rule accordingly. 

Additionally, the Office intends to 

include a list of common defenses in the 

response form. These defenses generally 

will take the form of a checklist, but 

respondents will be required to provide 

the basis for each defense they select as 

part of the response form. This will 

minimize the burden on respondents, 

who may not have much familiarity 

with the law, while discouraging the 

assertion of meritless defenses. The 

Office also intends to include additional 

information concerning common 

defenses as part of the CCB’s 

educational materials and to have links 

within eCCB so that respondents can 

easily access those materials. 

Commenters also suggested that the 

response form alert respondents to the 

availability of pro bono assistance from 

legal clinics and how to contact 

them.132 The Office intends to include 

references to pro bono assistance in the 

initial notice and throughout the CCB’s 

educational materials. 

As discussed above, the final rule also 

requires a respondent to provide an 

address, phone number, email address, 

and, if represented by counsel or an 

authorized representative, the address, 

phone number, and email address of the 

counsel or representative. Where a 

respondent is represented, the 

respondent’s phone number and email 

address will not be made available to 

the opposing party, but only to CCB 

staff. Additionally, as is the case with 

the claim form, when the response is 

completed by someone other than the 

respondent, the final rule requires that 

the certifying party has confirmed the 

accuracy of the information with the 

respondent. 

I. Counterclaims and Response to 

Counterclaims 

The CASE Act provides that a 

respondent in a CCB proceeding may 

assert certain related counterclaims 

against the claimant.133 An allowable 

counterclaim must either ‘‘arise[ ] under 


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134 Id. at 1504(c)(4)(B)(i). 

135 Id. at 1504(c)(4)(B)(ii). 

136 Id. at 1504(c)(4)(A), 1504(e)(1). 

137 Id. at 1506(f)(2). 

138 Id. at 1506(f)(3). 

139 Id. at 1506(i). 

140See 86 FR 53904. 

141 17 U.S.C. 1506(q)(1). 

142 86 FR 53904. 

143 Id. 

144 Id. 

145AIPLA Initial NPRM Comments at 2; 

Copyright Alliance et al. Initial NPRM Comments 

at 21–22. 

146AIPLA Initial NPRM Comments at 2; 

Copyright Alliance et al. Initial NPRM Comments 

at 21–22. 

147MPA, RIAA & SIIA Initial NPRM Comments at 

8. 

148Copyright Alliance et al. Initial NPRM 

Comments at 22. This comment further suggested 

that the claim form should prominently inform 

claimants ‘‘that by bringing a claim before the CCB, 

they voluntarily consent to the process, including 

any counterclaims permitted[.]’’ Id. 

149AIPLA Initial NPRM Comments at 2. 

150MPA, RIAA & SIIA Initial NPRM Comments at 

7. 

151See Anonymous Reply NPRM Comments at 2; 

SFWA Initial NPRM Comments at 4. 

152SFWA Initial NPRM Comments at 4. 

153Anonymous Reply NPRM Comments at 2. 

154 86 FR 53903. 

155Copyright Alliance et al. Initial NPRM 

Comments at 21. 

156 86 FR 53903. 

157 Id. 

158Copyright Alliance et al. Initial NPRM 

Comments at 21 (citing 86 FR 53903, 53910). 

159 Id. 

section 106 or section 512(f) [of the 

Copyright Act] and out of the same 

transaction or occurrence that is the 

subject of a claim of infringement, . . . 

a claim of noninfringement, . . . or a 

claim of misrepresentation,’’ 134 or 

‘‘arise [ ] under an agreement pertaining 

to the same transaction or occurrence 

that is the subject of a claim of 

infringement . . . if the agreement 

could affect the relief awarded to the 

claimant.’’ 135 Counterclaims must also 

fall within the same limits on damages 

that apply to claims.136 Any asserted 

counterclaim is subject to the same 

compliance review applicable to an 

initial claim 137 and is subject to 

dismissal for unsuitability.138

1. No Opting Out of Counterclaims 

Though the CASE Act provides a 

detailed procedure for respondents to 

opt out of using the CCB to resolve 

claims,139 it does not set forth a 

corresponding opt-out procedure for 

counterclaims.140 Under the statute, a 

claimant can elect to voluntarily dismiss 

a claim, respondent, or proceeding by 

written request at any time ‘‘before a 

respondent files a response to the 

claim,’’ 141 but once a response with any 

counterclaim is filed, the statute does 

not provide a means for the claimant to 

withdraw from, or opt out of, having the 

CCB decide the counterclaim. 

In the NPRM, the Office invited 

comments on the issue, including 

whether allowing a claimant to opt out 

of having the CCB decide a 

counterclaim is permitted under the 

statute.142 As the Office previously 

observed, ‘‘[a]s the claimant has already 

voluntarily submitted to, and in fact 

requested, the CCB to take up the 

general issue at hand, having an opt-out 

procedure for counterclaims potentially 

could constitute an inefficient use of 

time and resources.’’ 143 The Office also 

noted that, as the CASE Act permits 

only counterclaims that both arise from 

the same transaction or occurrence as a 

claim and that implicate copyright or an 

agreement affecting the relief to be 

awarded to the claimant, ‘‘there 

arguably should be no surprise when a 

counterclaim is asserted. For example, a 

claimant who brings an action before 

the CCB seeking a declaration of 

noninfringement of a work could 

reasonably expect a counterclaim for 

infringement of that same work.’’ 144

Commenters were generally in 

agreement with the proposed rule. 

Several commenters opposed any 

provision that would allow claimants to 

opt out of counterclaims raised against 

them.145 Some questioned the legality of 

such a provision.146 Commenters raised 

equitable concerns that ‘‘no party 

should be able to pursue a claim in CCB 

while simultaneously opting out of 

litigating a counterclaim against it’’ 147

and that once a claimant voluntarily 

elects to bring a claim, ‘‘they elect to 

either proceed before the CCB or not to; 

they do not get to pick and choose 

which eligible [counter]claims they 

would like to be subject to before the 

CCB.’’ 148

Most of the comments that addressed 

the issue opined that, even if 

permissible, ‘‘an opt-out mechanism 

. . . for claimants who receive a 

counterclaim . . . would [not] be sound 

policy.’’ 149 One commenting party 

concurred that a claimant should not be 

entitled to opt out of a counterclaim 

‘‘unless that original claimant drops its 

claim, thus resulting in dismissal of the 

entire CCB case.’’ 150

Two commenters expressed the 

opposing view.151 An authors’ 

organization commented that not 

allowing a claimant to opt-out of 

counterclaims would make ‘‘claimants 

unfairly bear[ ] the burden of paying the 

filing fee, initiating the process, and 

assuming the risk of being subjected to 

a counterclaim,’’ and give respondents 

‘‘a distinct advantage by being able to 

force the case through the CCB 

process.’’ 152 Another anonymous 

commenter raised similar concerns that 

this would impose an unbalanced 

burden on claimants and that 

respondents may ‘‘attempt to find a way 

to abuse free counterclaims.’’ 153

The Office agrees with the majority of 

comments that a claimant should not be 

entitled to opt out of a counterclaim. 

The NPRM expressed doubt that the 

CASE Act permits a counterclaim 

respondent to opt out, and no 

commenters made an argument that it 

does. Moreover, a respondent’s right to 

opt out of a CCB claim is inherent in the 

voluntary nature of the forum, but a 

claimant before the CCB has already 

affirmatively opted in to the proceeding 

and could reasonably anticipate a 

respondent to file a counterclaim. Any 

claimant, knowing that the respondent 

may opt out of the proceeding or make 

a counterclaim, can assess those risks 

before filing the claim. But if a claimant 

facing a counterclaim could opt out of 

that counterclaim while maintaining 

their own claim, this would be unfair to 

respondents. The Office is persuaded 

that it would be inequitable and 

inefficient to permit a claimant to opt 

out of a counterclaim, even if such a 

regulation were permitted. 

2. Other Provisions Related to 

Counterclaims 

The CASE Act does not specify when 

a counterclaim must be filed. Under the 

proposed rule, a counterclaim must be 

asserted at the same time the response 

is filed unless the CCB finds good cause 

for allowing a later counterclaim.154 The 

only comments on this topic ‘‘agree[d] 

with this approach.’’ 155 The Office finds 

that this approach will enable ‘‘an 

efficient, orderly procedure that 

provides parties sufficient notice as to 

the issues involved in the 

proceeding.’’ 156

The NPRM proposed that ‘‘the 

information required to assert a 

counterclaim should closely mirror the 

information required to assert a 

claim.’’ 157 However, commenters noted 

a discrepancy between those 

requirements—while claimants would 

have been required to state ‘‘[t]he facts 

leading the claimant to believe the work 

has been infringed,’’ counterclaimants 

would have been required to state ‘‘[t]he 

nature of the alleged infringement.’’ 158

The Copyright Alliance et al. suggested 

revising the latter provision to be 

consistent with the former.159 The 

Office agrees and adopts the suggestion 

in the interest of consistency. The Office 

does not intend that the pleading 

standards and requirements for 


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160See, e.g., Copyright Alliance et al. Initial 

NPRM Comments at 14–15, 17, 20–21; New Media 

Rights Initial NPRM Comments at 5–6; OTW Initial 

NPRM Comments at 11; SFWA Initial NPRM 

Comments at 2; Sergey Vernyuk Initial NPRM 

Comments at 1. 

claimants and counterclaimants should 

differ, and accordingly, the Office has 

further revised the wording proposed in 

the NPRM regarding the content of 

counterclaims to conform it to the 

wording regarding the content of claims. 

J. Clarifying Language and Technical 

Corrections 

Commenters provided suggestions on 

clarifying language and correcting 

typographical errors in the NPRM. The 

Office has adjusted the final rule 

accordingly.160

List of Subjects 

37 CFR Part 201 

Copyright, General provisions. 

37 CFR Part 220 

Claims, Copyright, General. 

37 CFR Part 222 

Claims, Copyright. 

37 CFR Part 223 

Claims, Copyright. 

37 CFR Part 224 

Claims, Copyright. 

Final Regulations 

For the reasons stated in the 

preamble, the U.S. Copyright Office 

amends chapter II, subchapters A and B, 

of title 37 Code of Federal Regulations 

as follows: 

Subchapter A—Copyright Office and 

Procedures 

PART 201—GENERAL PROVISIONS 

■ 1. The authority citation for part 201 

continues to read as follows: 

Authority: 17 U.S.C. 702. 

Section 201.10 also issued under 17 U.S.C. 

304. 

■ 2. In § 201.3: 

■ a. Revise the section heading; 

■ b. Redesignate table 1 to paragraph (d) 

and table 1 to paragraph (e) as table 2 

to paragraph (d) and table 3 to 

paragraph (e), respectively; and 

■ c. Add paragraph (g). 

The revision and addition read as 

follows: 

§ 201.3. Fees for registration, recordation, 

and related services, special services, and 

services performed by the Licensing 

Section and the Copyright Claims Board. 

* * * * * 

(g) Copyright Claims Board fees. The 

Copyright Office has established the 

following fees for specific services 

related to the Copyright Claims Board: 

TABLE 4 TO PARAGRAPH (g) 

Copyright claims board fees Fees 

($) 

(1) Initiate a proceeding before the 

Copyright Claims Board. ............

(i) First payment ........................ 40 

(ii) Second payment .................. 60 

(2) [Reserved] ................................... ............

Subchapter B—Copyright Claims Board and 

Procedures 

■ 3. Under the authority of 17 U.S.C. 

702, 1510, the heading for subchapter B 

is revised to read as set forth above. 

■ 4. Add part 220 to read as follows: 

PART 220—GENERAL PROVISIONS 

Sec. 

220.1 Definitions. 

220.2 [Reserved] 

Authority: 17 U.S.C. 702, 1510. 

§ 220.1 Definitions. 

For purposes of this subchapter: 

(a) An authorized representative is a 

person, other than legal counsel, who is 

authorized under this subchapter to 

represent a party before the Copyright 

Claims Board (Board). 

(b) An initial notice means the notice 

described in 17 U.S.C. 1506(g) that is 

served on a respondent in a Board 

proceeding along with the claim. 

(c) A second notice means the notice 

of a proceeding sent by the Board as 

described in 17 U.S.C. 1506(h). 

§ 220.2 [Reserved] 

PART 222—PROCEEDINGS 

■ 5. The authority citation for part 222 

continues to read as follows: 

Authority: 17 U.S.C. 702, 1510. 

■ 6. Add §§ 222.2 through 222.5 to read 

as follows: 

Sec. 

* * * * * 

222.2 Initiating a proceeding; the claim. 

222.3 Initial notice. 

222.4 Second notice. 

222.5 Service; waiver of service; filing. 

* * * * * 

§ 222.2 Initiating a proceeding; the claim. 

(a) Initiating a proceeding. A claimant 

may initiate a proceeding before the 

Copyright Claims Board (Board) by 

submitting the following— 

(1) A completed claim form provided 

by the Board; and 

(2) The first payment of the filing fee 

set forth in 37 CFR 201.3(g). 

(b) Electronic filing requirement. 

Except as provided otherwise in 

§ 222.5(f), to submit the claim and the 

first payment of the filing fee, the 

claimant must be a registered user of the 

Board’s electronic filing system (eCCB). 

(c) Contents of the claim. The claim 

shall include: 

(1) Identification of the claim(s) 

asserted against the respondent(s), 

which shall consist of at least one of the 

following: 

(i) A claim for infringement of an 

exclusive right in a copyrighted work 

provided under 17 U.S.C. 106; 

(ii) A claim for a declaration of 

noninfringement of an exclusive right in 

a copyrighted work provided under 17 

U.S.C. 106; or 

(iii) A claim under 17 U.S.C. 512(f) for 

misrepresentation in connection with— 

(A) A notification of claimed 

infringement; or 

(B) A counter notification seeking to 

replace removed or disabled material; 

(2) The name(s) and mailing 

address(es) of the claimant(s); 

(3) For any claimant that is 

represented by legal counsel or an 

authorized representative, the name(s), 

mailing address(es), email address(es), 

and telephone number(s) of such 

claimant’s legal counsel or authorized 

representative; 

(4) For any claimant that is not 

represented by legal counsel or an 

authorized representative, the email 

address and telephone number of such 

claimant; 

(5) The name(s) of the respondent(s); 

(6) The mailing address(es) of the 

respondent(s), unless the claimant(s) 

certifies that a respondent’s address is 

unknown at the time to the claimant 

and that the claimant has a good-faith 

belief that the statute of limitations for 

the claim is likely to expire within 30 

days from the date that the claim is 

submitted, and describes the basis for 

that good-faith belief; 

(7) For an infringement claim asserted 

under paragraph (c)(1)(i) of this 

section— 

(i) That the claimant is the legal or 

beneficial owner of rights in a work 

protected by copyright and, if there are 

any co-owners, their names; 

(ii) The following information for 

each work at issue in the claim: 

(A) The title of the work; 

(B) The author(s) of the work; 

(C) If a copyright registration has 

issued for the work, the registration 

number and effective date of 

registration; 

(D) If an application for copyright 

registration has been submitted but a 

registration has not yet issued, the 

service request number (SR number) 

and application date; and 

(E) The work of authorship category, 

as set forth in 17 U.S.C. 102, for each 


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work at issue, or, if the claimant is 

unable to determine the applicable 

category, a brief description of the 

nature of the work; and 

(iii) A description of the facts relating 

to the alleged infringement, including, 

to the extent known to the claimant: 

(A) Which exclusive rights provided 

under 17 U.S.C. 106 are at issue; 

(B) When the alleged infringement 

began; 

(C) The name(s) of all person(s) or 

organization(s) alleged to have 

participated in the infringing activity; 

(D) The facts leading the claimant to 

believe the work has been infringed; 

(E) Whether the alleged infringement 

has continued through the date the 

claim was filed, or, if it has not, when 

the alleged infringement ceased; 

(F) Where the alleged act(s) of 

infringement occurred (e.g., a physical 

or online location); and 

(G) If the claim of infringement is 

asserted against an online service 

provider as defined in 17 U.S.C. 

512(k)(1)(B) for infringement by reason 

of the storage of or referral or linking to 

infringing material that may be subject 

to the limitations on liability set forth in 

17 U.S.C. 512(b), (c), or (d), an 

affirmance that the claimant has 

previously notified the service provider 

of the claimed infringement in 

accordance with 17 U.S.C. 512(b)(2)(E), 

(c)(3), or (d)(3), as applicable, and that 

the service provider failed to remove or 

disable access to the material 

expeditiously upon the provision of 

such notice; 

(8) For a declaration of 

noninfringement claim asserted under 

paragraph (c)(1)(ii) of this section— 

(i) The name(s) of the person(s) or 

organization(s) asserting that the 

claimant has infringed a copyright; 

(ii) The following information for 

each work alleged to have been 

infringed, if that information is known 

to the claimant: 

(A) The title; 

(B) If a copyright registration has 

issued for the work, the registration 

number and effective date of 

registration; 

(C) If an application for copyright has 

been submitted, but a registration has 

not yet issued, the service request 

number (SR number) and registration 

application date; and 

(D) The work of authorship category, 

as set forth in 17 U.S.C. 102, or, if the 

claimant is unable to determine which 

category is applicable, a brief 

description of the nature of the work; 

(iii) A brief description of the 

claimant’s activity at issue in the claim, 

including, to the extent known to the 

claimant: 

(A) Any exclusive rights provided 

under 17 U.S.C. 106 that may be 

implicated; 

(B) When the activities at issue began 

and, if applicable, ended; 

(C) Whether the activities at issue 

have continued through the date the 

claim was filed; 

(D) The name(s) of all person(s) or 

organization(s) who participated in the 

allegedly infringing activity; and 

(E) Where the activities at issue 

occurred (e.g., a physical or online 

location); 

(iv) A brief statement describing the 

reasons why the claimant believes that 

no infringement occurred, including any 

relevant history or agreements between 

the parties and whether claimant 

currently believes any exceptions and 

limitations as set forth in 17 U.S.C. 107 

through 122 are implicated; and 

(v) A brief statement describing the 

reasons why the claimant believes that 

there is an actual controversy 

concerning the requested declaration; 

(9) For a misrepresentation claim 

asserted under paragraph (c)(1)(iii) of 

this section— 

(i) The sender of the notification of 

claimed infringement; 

(ii) The recipient of the notification of 

claimed infringement; 

(iii) The date the notification of 

claimed infringement was sent, if 

known; 

(iv) A description of the notification; 

(v) If a counter notification was sent 

in response to the notification— 

(A) The sender of the counter 

notification; 

(B) The recipient of the counter 

notification; 

(C) The date the counter notification 

was sent, if known; and 

(D) A description of the counter 

notification; 

(vi) The words in the notification or 

counter notification that allegedly 

constituted a misrepresentation; and 

(vii) An explanation of the alleged 

misrepresentation; 

(10) For infringement claims and 

misrepresentation claims, a statement 

describing the harm suffered by the 

claimant(s) as a result of the alleged 

activity and the relief sought by the 

claimant(s). Such statement may, but is 

not required to, include an estimate of 

any monetary relief sought; 

(11) Whether the claimant requests 

that the proceeding be conducted as a 

‘‘smaller claim’’ under 17 U.S.C. 

1506(z), and would accept a limitation 

on total damages of $5,000 if the request 

is granted; and 

(12) A certification under penalty of 

perjury by the claimant, the claimant’s 

legal counsel, or the claimant’s 

authorized representative that the 

information provided in the claim is 

accurate and truthful to the best of the 

certifying person’s knowledge and, if 

the certifying person is not the claimant, 

that the certifying person has confirmed 

the accuracy of the information with the 

claimant. The certification shall include 

the typed signature of the certifying 

person. 

(d) Additional matter. The claimant 

may also include, as attachments to or 

files accompanying the claim, any 

material the claimant believes plays a 

significant role in setting forth the facts 

of the claim, such as: 

(1) A copy of the copyright 

registration certificate for a work that is 

the subject of the proceeding; 

(2) A copy of the copyrighted work 

alleged to be infringed. This copy may 

also be accompanied by additional 

information, such as a hyperlink or 

screenshot, that shows where the 

allegedly infringed work has been 

posted; 

(3) A copy of the allegedly infringing 

material. This copy may also be 

accompanied by additional information, 

such as a hyperlink or screenshot, that 

shows any allegedly infringing activity; 

(4) For a misrepresentation claim, a 

copy of the notification of claimed 

infringement that is alleged to contain 

the misrepresentation; 

(5) For a misrepresentation claim, a 

copy of the counter notification that is 

alleged to contain the 

misrepresentation; 

(6) For a declaration of 

noninfringement claim, a copy of the 

demand letter(s) or other 

correspondence that created the dispute; 

and 

(7) Any other exhibits that play a 

significant role in setting forth the facts 

of the claim. 

(e) Additional information required 

during claim submission. In connection 

with the submission of the claim the 

claimant shall also provide— 

(1) For any claimant that is 

represented by legal counsel or an 

authorized representative, the email 

address and telephone number of that 

claimant. Such information shall not be 

part of the claim; and 

(2) Any further information that the 

Board may determine should be 

provided. 

(f) Respondent address requirement 

for claim submission. Any claim for 

which a respondent’s mailing address 

has not been provided pursuant to 

paragraph (c)(6) of this section shall not 

be found compliant under 37 CFR 224.1 

unless the claimant provides the 

address of the respondent to the Board 

within 60 days of the date the claim was 


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filed under paragraph (a) of this section. 

If the claimant does not provide a 

respondent address within that period 

of time, the Board may dismiss the 

claim without prejudice. 

§ 222.3 Initial notice. 

(a) Content of initial notice. The Board 

shall prepare an initial notice for the 

claimant(s) to serve on each respondent 

that shall— 

(1) Include on the first page a caption 

that provides the parties’ names and 

includes the docket number assigned by 

the Board; 

(2) Be addressed to the respondent; 

(3) Provide the name(s) and mailing 

address(es) of the claimant(s); 

(4) For any claimant that is 

represented by legal counsel or an 

authorized representative, provide the 

name(s), mailing address(es), email 

address(es), and telephone number(s) of 

such legal counsel or authorized 

representative; 

(5) For any claimant that is not 

represented by legal counsel or an 

authorized representative, provide the 

email address and telephone number of 

that claimant; 

(6) Advise the respondent that a legal 

proceeding that could affect the 

respondent’s legal rights has been 

commenced by the claimant(s) in the 

Board against the respondent; 

(7) Identify the nature of the claims 

asserted against the respondent, which 

shall consist of at least one of the 

following: 

(i) A claim for infringement of an 

exclusive right in a copyrighted work 

provided under 17 U.S.C. 106; 

(ii) A claim for a declaration of 

noninfringement of an exclusive right in 

a copyrighted work provided under 17 

U.S.C. 106; and 

(iii) A claim under 17 U.S.C. 512(f) for 

misrepresentation in connection with— 

(A) A notification of claimed 

infringement; or 

(B) A counter notification seeking to 

replace removed or disabled material; 

(8) Describe the Board, including that 

it is a three-member tribunal within the 

Copyright Office that has been 

established by law to resolve certain 

copyright disputes in which the total 

monetary recovery does not exceed 

$30,000; 

(9) State that the respondent has the 

right to opt out of participating in the 

proceeding, and that the consequence of 

opting out is that the proceeding shall 

be dismissed without prejudice and the 

claimant shall have to determine 

whether to file a lawsuit in a Federal 

district court; 

(10) State that if the respondent does 

not opt out within 60 days from the day 

the respondent received the initial 

notice, the proceeding shall go forward 

and the respondent shall— 

(i) Lose the opportunity to have the 

dispute decided by the Federal court 

system, created under Article III of the 

Constitution of the United States; and 

(ii) Waive the right to have a trial by 

jury regarding the dispute; 

(11) State that the notice is in regard 

to an official Government proceeding 

and provide information on how to 

access the docket of the proceeding in 

eCCB; 

(12) Provide information on how to 

become a registered user of eCCB; 

(13) State that parties may represent 

themselves in the proceeding, but note 

that a party may wish to consult with 

legal counsel or with a law school 

clinic, and provide reference to pro 

bono resources (i.e., legal services 

provided without charge for those 

services) which may be available and 

are listed on the Board’s website; 

(14) Indicate where other pertinent 

information concerning proceedings 

before the Board may be found on the 

Board’s website; 

(15) Provide direction on how a 

respondent may opt out of the 

proceeding, either online or by mail; 

and 

(16) Include any additional 

information that the Board may 

determine should be included. 

(b) Service of initial notice. Following 

notification from the Board pursuant to 

17 U.S.C. 1506(f)(1)(A) to proceed with 

service of the claim, the claimant shall 

cause the initial notice, the claim, the 

opt-out notification form, and any other 

documents required by the direction of 

the Board to be served with the initial 

notice and the claim, upon each 

respondent as prescribed in § 222.5(b) 

and 17 U.S.C. 1506(g). The copy of the 

claim that is served shall be of the claim 

that was found to be compliant under 37 

CFR 224.1, and is, at the time of service, 

available on eCCB. The initial notice, 

the claim, the opt-out notification form, 

and any other document required by the 

Board shall not be accompanied by any 

additional substantive communications 

or materials, including without 

limitation settlement demands, 

correspondence purporting to describe 

the claim or the strength of the claim, 

or exhibits not filed with the claim, 

when served by the claimant(s). 

§ 222.4 Second notice. 

(a) Content of second notice. The 

second notice to the respondent shall— 

(1) Include on the first page a caption 

that provides the parties’ names and the 

docket number; 

(2) Be addressed to the respondent, 

using the address that appeared in the 

initial notice or an updated address, if 

an updated address was provided to the 

Board prior to service of the second 

notice; 

(3) Include the contact information for 

the claimant(s) and claimant’s legal 

counsel or authorized representative, for 

any claimant represented by legal 

counsel or an authorized representative; 

(4) Advise the respondent that a 

proceeding that could affect the 

respondent’s legal rights has been 

commenced by the claimant(s) in the 

Board against the respondent; 

(5) Identify the nature of the claims 

asserted against the respondent, which 

shall consist of at least one of the 

following: 

(i) A claim for infringement of an 

exclusive right in a copyrighted work 

provided under 17 U.S.C. 106; 

(ii) A claim for a declaration of 

noninfringement of an exclusive right in 

a copyrighted work provided under 17 

U.S.C. 106; and 

(iii) A claim under 17 U.S.C. 512(f) for 

misrepresentation in connection with— 

(A) A notification of claimed 

infringement; or 

(B) A counter notification seeking to 

replace removed or disabled material; 

(6) Describe the Board, including that 

it is a three-member tribunal within the 

Copyright Office that has been 

established by law to resolve certain 

copyright disputes in which the total 

monetary recovery does not exceed 

$30,000; 

(7) State that the respondent has the 

right to opt out of participating in the 

proceeding, and that the consequence of 

opting out is that the proceeding shall 

be dismissed and the claimant shall 

have to determine whether to file a 

lawsuit in a Federal district court; 

(8) State that if the respondent does 

not opt out within 60 days from the day 

the respondent received the initial 

notice, the consequences are that the 

proceeding shall go forward and the 

respondent shall— 

(i) Lose the opportunity to have the 

dispute decided by the Federal court 

system, created under Article III of the 

Constitution of the United States; and 

(ii) Waive the right to have a trial by 

jury regarding the dispute; 

(9) Provide information on how to 

access the docket of the proceeding in 

eCCB and how to become a registered 

user of that system; 

(10) State that the notice is in regard 

to an official Government proceeding 

and provide information on how to 

access the docket of the proceeding 

eCCB; 

(11) Provide information on how to 

become a registered user of eCCB; 


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(12) State that parties may represent 

themselves in the proceeding, but note 

that a party may wish to consult with 

legal counsel or with a law school 

clinic, and provide reference to pro 

bono resources (i.e., legal services 

provided without charge for those 

services) which may be available and 

are listed on the Board’s website; 

(13) Indicate where other pertinent 

information concerning proceedings 

before the Board may be found on the 

Board’s website; 

(14) Provide direction on how a 

respondent may opt out of the 

proceeding, either online or by mail; 

(15) Be accompanied by the 

documents described in § 222.3(b); and 

(16) Include any additional 

information or documents at the Board’s 

direction. 

(b) Timing of second notice. The 

Board shall issue the second notice in 

the manner prescribed by § 222.5(d)(2) 

no later than 20 days after the claimant 

files proof of service or a completed 

waiver of service with the Board, unless 

the respondent has already submitted an 

opt-out notification pursuant to 37 CFR 

223.1. 

§ 222.5 Service; waiver of service; filing. 

(a) In general. Unless specified 

otherwise, all filings made by a party in 

CCB proceedings must be filed in eCCB. 

Except as provided elsewhere in this 

section, documents are served on a 

party who is a registered user of the 

eCCB and filed with the Board by 

submitting them to eCCB. Service is 

complete upon filing, but is not effective 

if the filer learns that it did not reach 

the person to be served. 

(b) Service of initial notice, claim, and 

related documents—(1) Timing of 

service. A claimant may proceed with 

service of a claim only after the claim 

is reviewed by a Copyright Claims 

Attorney and the claimant is notified 

that the claim is compliant under 37 

CFR 224.1. 

(2) Service methods. (i) Service of the 

initial notice, the claim, and other 

documents required by this part or the 

Board to be served with the initial 

notice and claim shall be made as 

provided under 17 U.S.C. 1506(g), as 

supplemented by this section. 

(ii) If a corporation, partnership, or 

unincorporated association has 

designated a service agent under 17 

U.S.C. 1506(g)(5)(B) and § 222.6, service 

must be made by certified mail or by 

any other method that the entity 

specifies in its designation under 

§ 222.6 that it will accept. 

(3) Filing of proof of service. (i) No 

later than the earlier of seven calendar 

days after service of the initial notice 

and all accompanying documents under 

paragraph (b) of this section and 90 days 

after receiving notification of 

compliance, a claimant shall file a 

completed proof of service form through 

eCCB. The proof of service form shall be 

located on the Board’s website. 

(ii) The claimant’s failure to comply 

with the filing deadline in paragraph 

(b)(3)(i) of this section may constitute 

exceptional circumstances justifying an 

extension of the 60-day period in which 

a respondent may deliver an opt-out 

notification to the Board under 17 

U.S.C. 1506(i). 

(c) Waiver of personal service—(1) 

Delivery of request for waiver of service. 

A claimant may request that a 

respondent waive personal service as 

provided by 17 U.S.C. 1506(g)(6) by 

delivering, via first class mail, the 

following to the respondent: 

(i) A completed waiver of personal 

service form provided on the Board’s 

website; 

(ii) The documents described in 

§ 222.3, including the initial notice and 

the claim; and 

(iii) An envelope, with postage 

prepaid and addressed to the claimant 

requesting the waiver or, for a claimant 

represented by legal counsel or an 

authorized representative, to that 

claimant’s legal counsel or authorized 

representative. 

(2) Content of waiver of service 

request. The request for waiver of 

service shall be prepared using a form 

provided by the Board that shall— 

(i) Bear the name of the Board; 

(ii) Include on the first page and 

waiver page the caption identifying the 

parties and the docket number; 

(iii) Be addressed to the respondent; 

(iv) Contain the date of the request; 

(v) Notify the respondent that a legal 

proceeding has been commenced by the 

claimant(s) before the Board against the 

respondent; 

(vi) Advise that the form is not a 

summons or official notice from the 

Board; 

(vii) Request that respondent waive 

formal service of summons by signing 

the enclosed waiver; 

(viii) State that a waiver of personal 

service shall not constitute a waiver of 

the right to opt out of the proceeding; 

(ix) Describe the effect of agreeing or 

declining to waive service; 

(x) Include a waiver of personal 

service form provided by the Board, 

containing a clear statement that 

waiving service does not affect the 

respondent’s ability to opt out of the 

proceeding and that, if signed and 

returned by the respondent, will 

include— 

(A) An affirmation that the 

respondent is waiving service; 

(B) An affirmation that the respondent 

understands that the respondent may 

opt out of the proceeding within 60 days 

of receiving the request; 

(C) The name and mailing address of 

the respondent; 

(D) For a respondent that is 

represented by legal counsel or an 

authorized representative, the name(s), 

mailing address(es), email address(es), 

and telephone number(s) of such legal 

counsel or authorized representative; 

(E) For a respondent that is not 

represented by legal counsel or an 

authorized representative, the email 

address and telephone number of that 

respondent; and 

(F) The typed, printed, or handwritten 

signature of the respondent or, if the 

respondent is represented by legal 

counsel or an authorized representative, 

the typed, printed, or handwritten 

signature of the respondent’s legal 

counsel or authorized representative. If 

the signature is handwritten, it shall be 

accompanied by a typed or printed 

name; and 

(xi) Not be accompanied by any other 

substantive communications. 

(3) Completing waiver of service. The 

respondent may complete waiver of 

service by returning the signed waiver 

form in the postage prepaid envelope to 

claimant by mail or, if the claimant also 

provides an email address to which the 

waiver of personal service form may be 

returned, by means of an email to which 

a copy of the signed form is attached. 

Waiving service does not affect a 

respondent’s ability to opt out of a 

proceeding. 

(4) Timing of completing waiver. The 

respondent has 30 days from the date on 

which the request was sent to return the 

waiver form. 

(5) Filing of waiver. Where the 

respondent has completed the waiver 

form, the claimant must submit the 

completed waiver form to the Board no 

later than the earlier of seven calendar 

days after the date the claimant received 

the signed waiver form from the 

respondent or 90 days after receiving 

notification of compliance. 

(d) Service by the Copyright Claims 

Board—(1) In general. Except as 

otherwise provided in this paragraph 

(d), the Board shall serve one copy of all 

orders, notices, decisions, rulings on 

motions, and similar documents issued 

by the Board upon each party through 

eCCB. 

(2) Service of second notice. (i) The 

Board shall serve the second notice 

required under 17 U.S.C. 1506(h) and 

§ 222.4, along with the documents 

described in § 222.3(b), by sending them 

by mail to the respondent at the address 

provided— 


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(A) In the designated service agent 

directory, if the respondent is a 

corporation, partnership, or 

unincorporated association that has 

designated a service agent; and, if not, 

(B) By the claimant in the claim or, in 

a subsequent communication correcting 

the address. 

(ii) The Board shall also serve the 

second notice by email if an email 

address for the respondent has been 

provided in the designated service agent 

directory or by the claimant. 

(3) Service of order regarding second 

filing fee and electronic filing 

registration on claimants. The Board 

shall serve the orders set forth in 

§ 222.7— 

(i) On any respondents that have not 

registered for eCCB in the manner set 

forth in paragraph (d)(2) of this section; 

and 

(ii) On any claimants that have not 

registered for eCCB by sending such 

documents— 

(A) By mail at the address provided 

for the claimant in the claim and by 

email at the email address provided for 

the claimant in the claim; or 

(B) If the claimant is represented by 

legal counsel or an authorized 

representative, by mail at the address 

provided for such counsel or authorized 

representative in the claim and by email 

at the email address provided for such 

legal counsel or authorized 

representative in the claim. 

(e) Service of discovery requests, 

responses, and responsive documents— 

(1) Service of discovery requests, 

responses, and responsive documents. 

Except as provided in paragraph (f) of 

this section, unless the parties agree in 

writing to other arrangements, discovery 

requests and responses shall be served 

by email and documents or other 

evidence responsive to discovery 

requests shall be served by email where 

the size and format of the documents or 

evidence make such service reasonably 

possible. If such documents or other 

evidence cannot reasonably be served 

by email, the parties shall confer and 

agree to other arrangements. Should the 

parties be unable to agree to other 

arrangements, such documents or other 

evidence shall be served by mail. 

Service is complete upon sending, but 

service is not effective if the sender 

learns that it did not reach the party to 

be served. 

(i) If a party is represented by legal 

counsel or an authorized representative, 

service under this paragraph must be 

made on the legal counsel or authorized 

representative at that legal counsel’s or 

authorized representative’s email 

address, or mailing address provided in 

the claim, response, or notice of 

appearance, unless the Board orders 

service on the party. 

(ii) If a party is not represented, 

service under this paragraph (e)(1) must 

be made on the party at the email 

address or mailing address provided by 

that party in the claim or response. 

(2) Filing generally prohibited. Unless 

the Board orders otherwise, discovery 

requests and responses should not be 

filed with the Board unless a party relies 

on the request or response as part of 

another filing in the proceeding. 

(f) Waiver of electronic filing and 

service requirements. In exceptional 

circumstances, an individual not 

represented by legal counsel or an 

authorized representative may request 

that the Board waive the electronic 

filing and service requirements set forth 

in this subchapter. Whether such a 

waiver is granted is at the Board’s 

discretion. If a waiver is granted, the 

Board shall instruct the parties as to the 

filing and service requirements for that 

proceeding based on consideration of 

the circumstances of the proceeding and 

the parties. 

■ 7. Add §§ 222.7 through 222.10 to 

read as follows: 

Sec. 

* * * * * 

222.7 Order regarding second filing fee and 

electronic filing registration. 

222.8 Response. 

222.9 Counterclaim. 

222.10 Response to counterclaim. 

§ 222.7 Order regarding second filing fee 

and electronic filing registration. 

(a) Issuance of order. Once a 

proceeding has become active with 

respect to all respondents who have 

been served and have not opted out 

within the 60-day period set forth in 17 

U.S.C. 1506(i), the Board shall issue an 

order to all parties in the proceeding 

providing that within 14 days of the 

order— 

(1) The claimant must submit the 

second payment of the filing fee set 

forth in 37 CFR 201.3(g) through eCCB; 

and 

(2) All claimant(s) and respondent(s) 

must register for eCCB unless they have 

been granted a waiver pursuant to 

§ 222.5(f). 

(b) Receipt of second payment from 

claimant—(1) Confirmation of active 

proceeding. Upon receipt of the second 

payment of the filing fee set forth in 37 

CFR 201.3(g) and after completion of the 

14-day period specified in the Board’s 

order, the Board shall issue a scheduling 

order through eCCB. 

(2) Notice to respondent. If any 

claimant or respondent has not 

registered for eCCB, the scheduling 

order shall be accompanied by a notice 

to those parties that unless they have 

been granted a waiver pursuant to 

§ 222.5(f), they must register for eCCB 

and that a failure to do so within a time 

set by the Board may result in default 

or failure to prosecute. Such scheduling 

order and notice shall be served on the 

respondent according to the procedures 

set forth in § 222.5(d)(2). 

(c) Failure of claimant to submit 

second payment. If the claimant(s) fails 

to submit the second payment of the 

filing fee set forth in 37 CFR 201.3(g) 

within 14 days from the date of the 

Board’s order, the Board shall issue 

another notice to the claimant(s), which 

shall provide that the proceeding shall 

be dismissed without prejudice unless 

the claimant(s) submits the second 

payment of the filing fee within 14 days. 

If the claimant(s) fails to submit the 

second payment of the filing fee within 

14 days of the issuance of that notice, 

the Board shall dismiss the proceeding 

without prejudice, unless the Board 

finds that the proceeding should not be 

dismissed in the interests of justice. 

§ 222.8 Response. 

(a) Filing a response. Following 

receipt of the scheduling order in an 

active proceeding, each respondent 

shall file a response through eCCB using 

the response form provided by the 

Board. Except for respondents who are 

represented by the same legal counsel or 

authorized representative, each 

respondent shall submit a separate 

response. 

(b) Content of response. The response 

shall include— 

(1) The name and mailing address of 

the respondent(s) and, for any 

respondents represented by legal 

counsel or an authorized representative, 

of such respondent’s legal counsel or 

authorized representative; 

(2) The phone number and email 

address of— 

(i) The respondent, if the respondent 

is not represented by legal counsel or an 

authorized representative; or 

(ii) The legal counsel or other 

authorized representative for the 

respondent, if the respondent is 

represented by legal counsel or an 

authorized representative; 

(3) A short statement, if applicable, 

disputing any facts asserted in the 

claim; 

(4) For infringement claims brought 

under 17 U.S.C. 1504(c)(1), a statement 

describing in detail the dispute 

regarding the alleged infringement, 

including reasons why the respondent 

contends that it has not infringed the 

claimant’s copyright, and any additional 

defenses, including whether any 

exceptions and limitations as set forth 


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in 17 U.S.C. 107 through 122 are 

implicated; 

(5) For declaration of noninfringement 

claims brought under 17 U.S.C. 

1504(c)(2), a statement describing in 

detail the dispute regarding the alleged 

infringement, including reasons why the 

respondent contends that its copyright 

has been infringed by claimant, and any 

additional defenses the respondent may 

have to the claim; 

(6) For misrepresentation claims 

brought under 17 U.S.C. 1504(c)(3), a 

statement describing in detail the 

dispute regarding the alleged 

misrepresentation, including an 

explanation of why the respondent 

believes the identified words do not 

constitute misrepresentation, and any 

additional defenses the respondent may 

have to the claim; 

(7) Any counterclaims pursuant to 

§ 222.9; and 

(8) A certification under penalty of 

perjury by the respondent or the 

respondent’s legal counsel or authorized 

representative that the information 

provided in the response is accurate and 

truthful to the best of the certifying 

person’s knowledge and, if the 

certifying person is not the respondent, 

that the certifying person has confirmed 

the accuracy of the information with the 

respondent. The certification shall 

include the typed signature of the 

certifying person. 

(c) Additional matter. The respondent 

may also include, as attachments to or 

files that accompany the response, any 

material the respondent believes plays a 

significant role in setting forth the facts 

of the claim, such as: 

(1) A copy of the copyright 

registration certificate for a work that is 

the subject of the proceeding; 

(2) A copy of the allegedly infringed 

work. This copy may also be 

accompanied by additional information, 

such as a hyperlink or screenshot, that 

shows where the allegedly infringed 

work has been posted; 

(3) A copy of the allegedly infringing 

material. This copy may also be 

accompanied by additional information, 

such as a hyperlink or screenshot, that 

shows any allegedly infringing activity; 

(4) A copy of the notification of 

claimed infringement that is alleged to 

contain the misrepresentation; 

(5) A copy of the counter notification 

that is alleged to contain the 

misrepresentation; and 

(6) Any other exhibits that play a 

significant role in setting forth the facts 

of the response. 

(d) Additional information required 

during response submission. In 

connection with the submission of the 

response the respondent shall also 

provide— 

(1) For any respondent that is 

represented by legal counsel or an 

authorized representative, the email 

address and telephone number of that 

respondent. Such information shall not 

be part of the response; and 

(2) Any further information that the 

Board may determine should be 

provided. 

(e) Timing of response. The 

respondent has 30 days from the 

issuance of the scheduling order to 

submit a response. If the respondent 

waived personal service, the respondent 

will have an additional 30 days to 

submit the response. 

(f) Failure to file response. A failure 

to file a response within the required 

timeframe may constitute a default 

under 17 U.S.C. 1506(u). 

§ 222.9 Counterclaim. 

(a) Asserting a counterclaim. Any 

party can assert a counterclaim falling 

under the jurisdiction of the Board that 

also— 

(1) Arises out of the same transaction 

or occurrence as the initial claim; or 

(2) Arises under an agreement 

pertaining to the same transaction or 

occurrence that is subject to an initial 

claim of infringement, if the agreement 

could affect the relief awarded to the 

claimant. 

(b) Electronic filing requirement. A 

party may submit a counterclaim 

through eCCB using the counterclaim 

form provided by the Board. 

(c) Content of counterclaim. The 

counterclaim shall include— 

(1) The name of the party or parties 

against whom the counterclaim is 

asserted; 

(2) An identification of the 

counterclaim, which shall consist of at 

least one of the following: 

(i) A claim for infringement of an 

exclusive right in a copyrighted work 

provided under 17 U.S.C. 106; 

(ii) A claim for a declaration of 

noninfringement of an exclusive right in 

a copyrighted work provided under 17 

U.S.C. 106; or 

(iii) A claim under 17 U.S.C. 512(f) for 

misrepresentation in connection with— 

(A) A notification of claimed 

infringement; or 

(B) A counter notification seeking to 

replace removed or disabled material; 

(3) For an infringement counterclaim 

asserted under paragraph (c)(2)(i) of this 

section— 

(i) That the counterclaimant is the 

legal or beneficial owner of rights in a 

work protected by copyright and, if 

there are any co-owners, their names; 

(ii) The following information for 

each work at issue in the counterclaim: 

(A) The title of the work; 

(B) The author(s) of the work; 

(C) If a copyright registration has 

issued for the work, the registration 

number and effective date of 

registration; 

(D) If an application for copyright has 

been submitted but a registration has 

not yet issued, the service request 

number (SR number) and registration 

application date; and 

(E) The work of authorship category, 

as set forth in 17 U.S.C. 102, for each 

work at issue, or, if the counterclaimant 

is unable to determine the applicable 

category, a brief description of the 

nature of the work; 

(iii) A description of the facts relating 

to the alleged infringement, including, 

to the extent known to the 

counterclaimant: 

(A) Which exclusive rights provided 

under 17 U.S.C. 106 are at issue; 

(B) When the alleged infringement 

began; 

(C) The name(s) of all person(s) or 

organization(s) alleged to have 

participated in the infringing activity; 

(D) The facts leading the 

counterclaimant to believe the work has 

been infringed; 

(E) Whether the alleged infringement 

has continued through the date the 

claim was filed, or, if it has not, when 

the alleged infringement ceased; 

(F) Where the alleged act(s) of 

infringement occurred; and 

(G) If the claim of infringement is 

asserted against an online service 

provider as defined in 17 U.S.C. 

512(k)(1)(B) for infringement by reason 

of the storage of or referral or linking to 

infringing material that may be subject 

to the limitations on liability set forth in 

17 U.S.C. 512(b), (c), or (d), an 

affirmance that the counterclaimant has 

previously notified the service provider 

of the claimed infringement in 

accordance with 17 U.S.C. 512(b)(2)(E), 

(c)(3), or (d)(3), as applicable, and that 

the service provider failed to remove or 

disable access to the material 

expeditiously upon the provision of 

such notice; 

(4) For a declaration of 

noninfringement counterclaim asserted 

under paragraph (c)(2)(ii) of this 

section— 

(i) The name(s) of the person(s) or 

organization(s) asserting that the 

counterclaimant has infringed a 

copyright; 

(ii) The following information for 

each work alleged to have been 

infringed, if that information is known 

to the counterclaimant: 

(A) The title; 

(B) If a copyright registration has 

issued for the work, the registration 


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number and effective date of 

registration; 

(C) If an application for copyright has 

been submitted, but a registration has 

not yet issued, the service request 

number (SR number) and registration 

application date; and 

(D) The work of authorship category, 

as set forth in 17 U.S.C. 102, or, if the 

counterclaimant is unable to determine 

which category is applicable, a brief 

description of the nature of the work; 

(iii) A brief description of the activity 

at issue in the claim, including, to the 

extent known to the counterclaimant: 

(A) Any exclusive rights provided 

under 17 U.S.C. 106 that may be 

implicated; 

(B) When the activities at issue began 

and, if applicable, ended; 

(C) Whether the activities at issue 

have continued through the date the 

claim was filed; 

(D) The name(s) of all person(s) or 

organization(s) who participated in the 

allegedly infringing activity; and 

(E) Where the activities at issue 

occurred; 

(iv) A brief statement describing the 

reasons why the counterclaimant 

believes that no infringement occurred, 

including any relevant history or 

agreements between the parties and 

whether counterclaimant currently 

believes any exceptions and limitations 

as set forth in 17 U.S.C. 107 through 122 

are implicated; and 

(v) A brief statement describing the 

reasons why the counterclaimant 

believes that there is an actual 

controversy concerning the requested 

declaration; 

(5) For a misrepresentation 

counterclaim asserted under paragraph 

(c)(2)(iii) of this section— 

(i) The sender of the notification of 

claimed infringement; 

(ii) The recipient of the notification of 

claimed infringement; 

(iii) The date the notification of 

claimed infringement was sent, if 

known; 

(iv) A description of the notification; 

(v) If a counter notification was sent 

in response to the notification— 

(A) The sender of the counter 

notification; 

(B) The recipient of the counter 

notification; 

(C) The date the counter notification 

was sent, if known; and 

(D) A description of the counter 

notification; 

(vi) The words in the notification or 

counter notification that allegedly 

constituted a misrepresentation; and 

(vii) An explanation of the alleged 

misrepresentation; 

(6) For infringement claims and 

misrepresentation claims, a statement 

describing the harm suffered by the 

claimant(s) as a result of the alleged 

activity and the relief sought by the 

claimant(s). Such statement may, but is 

not required to, include an estimate of 

any monetary relief sought; 

(7) A statement describing the 

relationship between the initial claim 

and the counterclaim; and 

(8) A certification under penalty of 

perjury by the counterclaimant or the 

counterclaimant’s legal counsel or 

authorized representative that the 

information provided in the 

counterclaim is accurate and truthful to 

the best of the certifying person’s 

knowledge and, if the certifying person 

is not the counterclaimant, that the 

certifying person has confirmed the 

accuracy of the information with the 

counterclaimant. The certification shall 

include the typed signature of the 

certifying person. 

(d) Additional matter. The 

counterclaimant may also include, as 

attachments to or files that accompany 

the counterclaim, any material the 

counterclaimant believes plays a 

significant role in setting forth the facts 

of the claim, such as: 

(1) A copy of the copyright 

registration certificate for a work that is 

the subject of the proceeding; 

(2) A copy of the allegedly infringed 

work. This copy may also be 

accompanied by additional information, 

such as a hyperlink or screenshot, that 

shows where the allegedly infringed 

work has been posted; 

(3) A copy of the allegedly infringing 

material. This copy may also be 

accompanied by additional information, 

such as a hyperlink or screenshot, that 

shows any allegedly infringing activity; 

(4) A copy of the notification of 

claimed infringement that is alleged to 

contain the misrepresentation; 

(5) A copy of the counter notification 

that is alleged to contain the 

misrepresentation; and 

(6) Any other exhibits that play a 

significant role in setting forth the facts 

of the counterclaim. 

(e) Timing of counterclaim. A 

counterclaim must be served and filed 

with the respondent’s response unless 

the Board, for good cause, permits a 

counterclaim to be asserted at a 

subsequent time. 

§ 222.10 Response to counterclaim. 

(a) Filing a response to a 

counterclaim. Within 30 days following 

the Board’s issuance of notification that 

a counterclaim is compliant under 37 

CFR 224.1, a claimant against whom a 

counterclaim has been asserted 

(counterclaim respondent) shall file a 

response to the counterclaim through 

eCCB using the response form provided 

by the Board. 

(b) Content of response to a 

counterclaim. The response to a 

counterclaim shall include— 

(1) The name, mailing address, phone 

number, and email address of each 

counterclaim respondent filing the 

response; 

(2) A short statement, if applicable, 

disputing any facts asserted in the 

counterclaim; 

(3) For counterclaims brought under 

17 U.S.C. 1504(c)(1), a statement 

describing in detail the dispute 

regarding the alleged infringement, 

including any defenses as well as any 

reason why the counterclaim 

respondent believes there was no 

infringement of copyright, including 

any exceptions and limitations as set 

forth in 17 U.S.C. 107 through 122 that 

are implicated; 

(4) For counterclaims brought under 

17 U.S.C. 1504(c)(2), a statement 

describing in detail the dispute 

regarding the alleged infringement, 

including reasons why the counterclaim 

respondent believes there is 

infringement of copyright; 

(5) For counterclaims brought under 

17 U.S.C. 1504(c)(3), a statement 

describing in detail the dispute 

regarding the alleged misrepresentation 

and an explanation of why the 

counterclaim respondent believes the 

identified words do not constitute 

misrepresentation; and 

(6) A certification under penalty of 

perjury by the claimant, the claimant’s 

legal counsel, or the claimant’s 

authorized representative that the 

information provided in the response to 

the counterclaim is accurate and 

truthful to the best of the certifying 

person’s knowledge and, if the 

certifying person is not the counterclaim 

respondent, that the certifying person 

has confirmed the accuracy of the 

information with the counterclaim 

respondent. The certification shall 

include the typed signature of the 

certifying person. 

(c) Additional matter. The 

counterclaim respondent may also 

include, as attachments to or files that 

accompany the counterclaim response, 

any material the counterclaim 

respondent believes play a significant 

role in setting forth the facts of the 

claim, such as: 

(1) A copy of the copyright 

registration certificate for a work that is 

the subject of the proceeding; 

(2) A copy of the allegedly infringed 

work. This copy may also be 

accompanied by additional information, 

such as a hyperlink or screenshot, that 


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shows where the allegedly infringed 

work has been posted; 

(3) A copy of the allegedly infringing 

material. This copy may also be 

accompanied by additional information, 

such as a hyperlink or screenshot, that 

shows any allegedly infringing activity; 

(4) A copy of the notification of 

claimed infringement that is alleged to 

contain the misrepresentation; 

(5) A copy of the counter notification 

that is alleged to contain the 

misrepresentation; and 

(6) Any other exhibits that play a 

significant role in setting forth the facts 

of the counterclaim response. 

(d) Failure to file counterclaim 

response. A failure to file a 

counterclaim response within the 

timeframe required by this section may 

constitute a default under 17 U.S.C. 

1506(u), and the Board may begin 

default proceedings. 

PART 223—OPT–OUT PROVISIONS 

■ 8. The authority citation for part 223 

continues to read as follows: 

Authority: 17 U.S.C. 702, 1510. 

■ 9. Add § 223.1 to read as follows: 

§ 223.1 Respondent’s opt-out. 

(a) Effect of opt-out on particular 

proceeding. A respondent may opt out 

of a proceeding before the Copyright 

Claims Board (Board) pursuant to 17 

U.S.C. 1506(i) following the procedures 

set forth in this section. A respondent’s 

opt-out shall result in the dismissal of 

the claim without prejudice. 

(b) Content of opt-out notification. 

The respondent’s opt-out notification 

shall include— 

(1) The docket number assigned by 

the Board and contained in either the 

initial notice served by the claimant or 

the second notice; 

(2) The respondent’s name; 

(3) The respondent’s mailing address; 

(4) An affirmation that the respondent 

shall not appear before the Board with 

respect to the claim served by the 

claimant; 

(5) A certification under penalty of 

perjury that the individual completing 

the notification is the respondent 

identified in the claim served by the 

claimant or is the legal counsel or 

authorized representative of the 

respondent identified in the claim and 

has been directed and authorized by the 

respondent to opt out of the particular 

proceeding; and 

(6) The typed, printed, or handwritten 

signature of the respondent or its legal 

counsel or authorized representative, 

and, if the signature is handwritten, a 

typed or printed name. 

(c) Process of opting out. Upon being 

served with a notice and claim, a 

respondent may complete the opt-out 

process by— 

(1) Completing and submitting the 

Board’s online opt-out notification form 

available through the Board’s electronic 

filing system (eCCB) as identified in the 

initial notice and second notice and 

providing an email address for 

confirmation; or 

(2) Completing and submitting the 

paper opt-out notification form included 

with the initial notice and second 

notice, providing a mailing address or 

email address to receive confirmation, 

and delivering it to the Board, either 

by— 

(i) First-class mail, or other class of 

mail that is at least as expeditious, 

postage prepaid; or 

(ii) A third party commercial carrier, 

that guarantees delivery no later than 

two days from the day of deposit with 

the service. 

(3) An online or paper opt-out 

notification is not complete unless the 

confirmation code, provided with both 

the initial notice and second notice, is 

included in the submission. 

(d) Effect of improper service. If a 

respondent is improperly served under 

37 CFR 222.5 and completes the opt-out 

process described in paragraph (c) of 

this section, a respondent’s timely optout will still be effective and result in 

the dismissal of the claim without 

prejudice. 

(e) Timing of opt out. The respondent 

has 60 days from the date of service or 

waiver of service to provide notice of its 

opt-out election. When the last day of 

that period falls on a weekend or a 

Federal holiday, the ending date shall 

be extended to the next Federal work 

day. 

(1) When opting out via the online 

form under paragraph (c)(1) of this 

section, the respondent’s opt-out 

notification must be submitted by 11:59 

p.m. Eastern Time on the last day of the 

opt-out period. 

(2) When opting out under paragraph 

(c)(2) of this section, the respondent’s 

opt-out notification must be 

postmarked, dispatched by a 

commercial carrier, courier, or 

messenger, or hand-delivered to the 

Office no later than the 60-day deadline. 

(f) Extension of opt-out period. The 

Board may extend the 60-day period to 

opt out in exceptional circumstances 

and in the interests of justice and upon 

written notice to the claimant. Either a 

respondent individually or the parties 

jointly may contact the Board through a 

Copyright Claims Attorney to request an 

extension of the opt-out period. 

(g) Multiple respondents. In claims 

involving multiple respondents, each 

respondent who elects to opt out must 

separately complete the opt-out process. 

(h) Confirmation of opt-out. When a 

respondent has completed the opt-out 

process, the Board shall notify all 

parties to the proceeding. 

(i) Effect of opt out on refiled claims. 

If the claimant attempts to refile a claim 

against the same respondent(s), covering 

in substance the same acts and the same 

theories of recovery after the 

respondent’s initial opt-out notification, 

the Board shall apply the prior opt-out 

election and dismiss the claim unless 

the claimant can demonstrate that the 

respondent affirmatively has agreed to 

resubmission of the parties’ dispute to 

the Board for resolution. 

(j) Effect of opt-out on unrelated 

claims. The respondent’s opt-out for a 

particular claim shall not be construed 

as an opt-out for claims involving 

different acts or different theories of 

recovery. 

■ 10. Add part 224 to read as follows: 

PART 224—REVIEW OF CLAIMS BY 

OFFICERS AND ATTORNEYS 

Sec. 

224.1 Compliance review. 

224.2 Dismissal for unsuitability. 

Authority: 17 U.S.C. 702, 1510. 

§ 224.1 Compliance review. 

(a) Compliance review by Copyright 

Claims Attorney. Upon the filing of a 

claim or counterclaim with the 

Copyright Claims Board (Board), a 

Copyright Claims Attorney shall review 

the claim for compliance with 17 U.S.C. 

chapter 15 and this subchapter, as 

provided in this section. 

(b) Substance of compliance review. 

The Copyright Claims Attorney shall 

review the claim or counterclaim for 

compliance with all legal and formal 

requirements for a claim or 

counterclaim before the Board, 

including: 

(1) The provisions set forth under this 

subchapter; 

(2) The requirements set forth in 17 

U.S.C. 1504(c), (d), and (e)(1); and 

(3) Whether the allegations in the 

claim or the counterclaim clearly do not 

state a claim upon which relief can be 

granted. 

(c) Issuing finding. Upon completing 

a compliance review, the Copyright 

Claims Attorney shall notify the party 

that submitted the document in 

accordance with 37 CFR 222.5 and 17 

U.S.C. 1506(f) by— 

(1) Informing the claimant or 

counterclaimant that the claim or 

counterclaim has been found to comply 


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17008 Federal Register / Vol. 87, No. 58 / Friday, March 25, 2022 / Rules and Regulations 

with the applicable statutory and 

regulatory requirements and instructing 

the claimant to proceed with service 

under 37 CFR 222.5 and 17 U.S.C. 

1506(g); or 

(2) Informing the claimant or 

counterclaimant that the claim or 

counterclaim, respectively, does not 

comply with the applicable statutory 

and regulatory requirements and 

identifying the noncompliant issue(s) 

according to the procedure set forth in 

17 U.S.C. 1506(f). 

(d) Dismissal without prejudice. If the 

original claim and an amended claim 

were previously reviewed by the 

Copyright Claims Attorney and were 

found not to comply with the applicable 

statutory and regulatory requirements, 

and if the Copyright Claims Attorney 

concludes, following the submission of 

a second amended claim, that the claim 

still does not comply with the 

applicable statutory and regulatory 

requirements, the claim shall be referred 

to a Copyright Claims Officer who shall 

confirm whether the second amended 

claim complies with the applicable 

statutory and regulatory requirements. If 

the Copyright Claims Officer concurs 

with the conclusion of the Copyright 

Claims Attorney, the proceeding shall 

be dismissed without prejudice. 

(e) Clearance is not endorsement. The 

finding that a claim or counterclaim 

complies with the applicable statutory 

and regulatory requirements does not 

constitute a determination as to the 

validity of the allegations asserted or 

other statements made in the claim or 

counterclaim. 

(f) No factual investigations. For the 

purpose of the compliance review, the 

Copyright Claims Attorney shall accept 

the facts stated in the claim or 

counterclaim materials, unless they are 

clearly contradicted by information 

provided elsewhere in the materials or 

in the Board’s records. The Copyright 

Claims Attorney shall not conduct an 

investigation or make findings of fact; 

however, the Copyright Claims Attorney 

may take administrative notice of facts 

or matters that are well known to the 

general public, and may use that 

knowledge during review of the claim or 

counterclaim. 

§ 224.2 Dismissal for unsuitability. 

(a) Review by Copyright Claims 

Attorney. During the compliance review 

under § 224.1, the Copyright Claims 

Attorney shall review the claim or 

counterclaim for unsuitability on 

grounds set forth in 17 U.S.C. 1506(f)(3). 

If the Copyright Claims Attorney 

concludes that the claim should be 

dismissed for unsuitability, the 

Copyright Claims Attorney shall 

recommend to the Board that the Board 

dismiss the claim and shall set forth the 

basis for that conclusion. 

(b) Dismissal by the Board for 

unsuitability. (1) If, upon 

recommendation by a Copyright Claims 

Attorney as set forth in paragraph (a) of 

this section or at any other time in the 

proceeding upon the request of a party 

or on its own initiative, the Board 

determines that a claim or counterclaim 

should be dismissed for unsuitability 

under 17 U.S.C. 1506(f)(3), the Board 

shall issue an order stating its intention 

to dismiss the claim without prejudice. 

(2) Within 30 days following issuance 

of an order under paragraph (b) of this 

section, the claimant or counterclaimant 

may request that the Board reconsider 

its determination. The respondent or 

counterclaim respondent may file a 

response within 30 days following 

service of the claimant’s request. 

(3) Following the expiration of the 

time for the respondent or counterclaim 

respondent to submit a response, the 

Board shall render its final decision 

whether to dismiss the claim for 

unsuitability. 

(c) Request by a party to dismiss a 

claim or counterclaim for unsuitability. 

At any time, any party who believes that 

a claim or counterclaim is unsuitable for 

determination by the Board may file a 

request providing the basis for such 

belief. An opposing party may file a 

response within 14 days of the date of 

service of the request, setting forth the 

basis for such opposition to the request. 

There will be no reply papers related to 

a request to dismiss for unsuitability 

unless ordered by the Board in its 

discretion. 

Dated: March 16, 2022. 

Shira Perlmutter, 

Register of Copyrights and Director of the 

U.S. Copyright Office. 

Approved by: 

Carla D. Hayden, 

Librarian of Congress. 

[FR Doc. 2022–06264 Filed 3–24–22; 8:45 am] 

BILLING CODE 1410–30–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2022–0221; FRL–9598–02– 

R9] 

Approval and Promulgation of 

Implementation Plans; California; 

Correcting Amendments 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: On August 28, 2009, the 

Environmental Protection Agency (EPA) 

issued a final rule titled ‘‘Revisions to 

the California State Implementation 

Plan, Antelope Valley Air Quality 

Management District.’’ That publication 

inadvertently omitted regulatory text 

rescinding four previously approved 

rules for the Antelope Valley Air 

Quality Management District portion of 

the California State Implementation 

Plan (SIP). On September 20, 2016, the 

EPA issued a final rule titled ‘‘Approval 

of California Air Plan Revisions, 

Department of Pesticide Regulations.’’ 

That publication listed the wrong EPA 

approval dates and Federal Register 

citations for certain rules. The EPA is 

taking direct final action to correct these 

errors. 

DATES: This rule is effective on May 24, 

2022 without further notice unless the 

EPA receives adverse comments by 

April 25, 2022. If we receive such 

comments, we will publish a timely 

withdrawal in the Federal Register to 

notify the public that this direct final 

rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09– 

OAR–2022–0221 at https://

www.regulations.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. The EPA may publish 

any comment received to its public 

docket. Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For the full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. If you need 

assistance in a language other than 

English or if you are a person with 

disabilities who needs a reasonable 

accommodation at no cost to you, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 


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