Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Proposed Rules 53897 

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). Note, the 

CASE Act legislative history cited is for H.R. 2426 

and S. 1273, the CASE Act of 2019, a bill nearly 

identical to the CASE Act of 2020. See H.R. 2426, 

116th Cong. (2019); S. 1273, 116th Cong. (2019). In 

developing the CASE Act, Congress drew on model 

legislation in the Office’s 2013 policy report, 

Copyright Small Claims, https://www.copyright.gov/ 

docs/smallclaims/usco-smallcopyrightclaims.pdf. 

Congress also incorporated the Office’s report and 

supporting materials into the statute’s legislative 

history. H.R. Rep. No. 116–252, at 19; S. Rep. No. 

116–105, at 2. 

3H.R. Rep. No. 116–252, at 17; S. Rep. No. 116– 

105, at 2–3, 9. 

4 17 U.S.C. 1504(c)(1)–(3). The CCB cannot issue 

injunctive relief, but can require that an infringing 

party cease or mitigate its infringing activity in the 

event such party agrees and the agreement is 

reflected in the proceeding’s record. Id. at 

1504(e)(2)(A)(i), (e)(2)(B). This provision also 

applies to parties making knowing material 

misrepresentations under section 512(f). Id. at 

1504(e)(2)(A)(ii). 

5See id. at 1504(a); H.R. Rep. No. 116–252, at 17, 

21; S. Rep. No. 116–105, at 3, 11. 

6H.R. Rep. No. 116–252, at 21–22, 33; S. Rep. No. 

116–105, at 14. 

7 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. References to 

these comments are by party name (abbreviated 

where appropriate), followed by ‘‘Initial NOI 

Comments’’ or ‘‘Reply NOI Comments,’’ as 

appropriate. 

8Public Law 116–260, sec. 212(d), 134 Stat. at 

2199. 

9 17 U.S.C. 1506(a)(1). 

Proposed Amendments to the 

Regulations 

Accordingly, 26 CFR part 300 is 

proposed to be amended as follows: 

PART 300—USER FEES 

■ Paragraph 1.The authority citation for 

part 300 continues to read as follows: 

Authority: 31 U.S.C. 9701. 

§ 300.0 [Amended] 

■ Par. 2. Section 300.0 is amended by 

removing paragraph (b)(9) and 

redesignating paragraphs (b)(10) through 

(12) as paragraphs (b)(9) through (11). 

■ Par. 3. Section 300.4 is amended by 

revising paragraphs (b) and (d) to read 

as follows: 

§ 300.4 Enrolled agent special enrollment 

examination fee. 

* * * * * 

(b) Fee. The fee for taking the enrolled 

agent special enrollment examination is 

$99 per part, which is the cost to the 

government for overseeing the 

development and administration of the 

examination and is in addition to the 

fees charged by the administrator of the 

examination. 

* * * * * 

(d) Applicability date. This section 

applies to registrations for the enrolled 

agent special enrollment examination 

that occur on or after [DATE 30 DAYS 

AFTER PUBLICATION OF THE FINAL 

RULE IN THE Federal Register]. 

§ 300.9 [Removed] 

■ Par. 4. Section 300.9 is removed. 

§§ 300.10 through 300.12 [Redesignated as 

§§ 300.09 through 300.11] 

■ Par. 5. Redesignate §§ 300.10 through 

300.12 as §§ 300.09 through 300.11. 

Douglas W. O’Donnell, 

Deputy Commissioner for Services and 

Enforcement. 

[FR Doc. 2021–21242 Filed 9–27–21; 4:15 pm] 

BILLING CODE 4830–01–P 

LIBRARY OF CONGRESS 

Copyright Office 

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

224 

[Docket No. 2021–6] 

Copyright Claims Board: Initiation of 

Proceedings and Related Procedures 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The U.S. Copyright Office is 

issuing a notice of proposed rulemaking 

to establish procedures governing the 

initial stages of a proceeding before the 

Copyright Claims Board. The proposed 

rule provides requirements regarding 

the filing of a claim, the Board’s 

compliance review of the claim, service, 

issuance of notice of the claim, the 

respondent’s opt-out election, 

responses, and counterclaims. The 

Office intends to initiate subsequent 

rulemakings regarding additional 

procedures. 

DATES: Initial written comments must be 

received no later than 11:59 p.m. 

Eastern Time on October 29, 2021. 

Written reply comments must be 

received no later than 11:59 p.m. 

Eastern Time on November 15, 2021. 

ADDRESSES: For reasons of government 

efficiency, the Copyright Office is using 

the regulations.gov system for the 

submission and posting of public 

comments in this proceeding. All 

comments are therefore to be submitted 

electronically through regulations.gov. 

Specific instructions for submitting 

comments are available on the 

Copyright Office website at http://

copyright.gov/rulemaking/case-actimplementation/initiating-proceedings/. 

If electronic submission of comments is 

not feasible due to lack of access to a 

computer and/or the internet, please 

contact the Office using the contact 

information below for special 

instructions. 

FOR FURTHER INFORMATION CONTACT: 

Kevin R. Amer, Acting General Counsel 

and Associate Register of Copyrights, by 

email at kamer@copyright.gov, or 

Whitney Levandusky, Supervisory 

Attorney-Advisor, by email at wlev@

copyright.gov. Both can be reached by 

telephone at 202–707–8350. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On December 27, 2020, the President 

signed into law the Copyright 

Alternative in Small-Claims 

Enforcement (‘‘CASE’’) Act of 2020.1

The CASE Act directs the Copyright 

Office to establish the Copyright Claims 

Board (‘‘CCB’’ or ‘‘Board’’), a voluntary, 

alternative forum to federal court for 

parties to seek resolution of copyright 

disputes that have a low economic value 

(‘‘small copyright claims’’).2 The CCB’s 

creation does not displace or limit a 

party’s ability to bring small copyright 

claims in federal court, but rather 

provides a more accessible alternative 

forum to decide those claims.3 The CCB 

has authority to hear copyright 

infringement claims, claims seeking a 

declaration of noninfringement, and 

misrepresentation claims under section 

512(f) of title 17.4 Participation in the 

CCB is voluntary for all parties,5 and all 

determinations are non-precedential.6

On March 26, 2021, the Copyright Office 

published a notification of inquiry 

(‘‘NOI’’) inviting public comment on 

various aspects of the CCB’s operations, 

which the Office noted would be 

established through a series of 

rulemakings.7 Congress directed that the 

CCB begin operations by December 27, 

2021, though the Register may for good 

cause extend that deadline by not more 

than 180 days.8

The CASE Act directs the Register of 

Copyrights to establish the regulations 

by which the CCB will conduct its 

proceedings, subject to the provisions of 

chapter 15 and relevant principles of 

law under title 17.9 In this notice, the 

Office proposes procedures related to 

the filing of a claim, the CCB’s 

subsequent review of the claim to 

ensure that it complies with statutory 

requirements and the Office’s 

regulations (referred to in this 

rulemaking as the CCB’s ‘‘compliance 

review’’), service, issuance of notice of 

the claim, the respondent’s opt-out 

election, responses, and counterclaims. 

The Office will issue proposed rules 


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53898 Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Proposed Rules 

10 Id. at 1506(e). 

11H.R. Rep. No. 116–252, at 17; see also S. Rep. 

No. 116–105, at 9–10. 

12Sen. Dick Durbin, Sen. John Kennedy & Rep. 

Hakeem Jeffries Initial NOI Comments at 1 (stating 

that CCB forms should be ‘‘user-friendly, with 

simplified forms and guidance provided in such a 

way that parties will not feel compelled to hire an 

attorney to understand and assist them with the 

process’’) (emphasis omitted); Am. Bar Ass’n Intell. 

Prop. L. Sec. (‘‘ABA–IPL’’) Reply NOI Comments at 

2; Patreon Initial NOI Comments at 2. 

13Am. Intell. Prop. L. Ass’n (‘‘AIPLA’’) Initial 

NOI Comments at 2; Copyright Alliance, 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 Creators N. 

Am., Nat’l Music Council of the United States, 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 NOI 

Comments at 10; Engine Initial NOI Comments at 

3; Niskanen Center Initial NOI Comments at 2. 

14Copyright Alliance, et al. Initial NOI Comments 

at 11; Coalition of Visual Artists Initial NOI 

Comments at 5–8; ABA–IPL Reply NOI Comments 

at 2. 

15The Office has modeled the procedures 

governing issuance of the initial notice on those 

pertaining to issuance of a summons under Rule 4 

of the Federal Rules of Civil Procedure. See H.R. 

Rep. No. 116–252 at 22. 

16 Id. 

17 Google Initial NOI Comments at 1 (referring to 

Federal Rule of Civil Procedure 12). 

18H.R. Rep. No. 116–252, at 23. 

19 17 U.S.C. 1506(y). 

20See, e.g., Ben Vient Initial NOI Comments at 2; 

Copyright Alliance, et al. Initial NOI Comments at 

13; Univ. of Mich. Library Initial NOI Comments at 

1. 

21 17 U.S.C. 1506(f)(1). 

22H.R. Rep. No. 116–252, at 22. 

23 17 U.S.C. 1506(f)(1)(A). 

24 Id. at 1506(f)(1)(B). 

related to later stages of a proceeding in 

subsequent rulemakings. 

A. Initiating a Claim 

To initiate a proceeding before the 

CCB, a claimant shall, ‘‘subject to such 

additional requirements as may be 

prescribed in regulations established by 

the Register of Copyrights,’’ file a claim 

that ‘‘(1) includes a statement of 

material facts in support of the claim; 

(2) is certified under [17 U.S.C. 

1506(y)(1)]; and (3) is accompanied by 

a filing fee in such amount as may be 

prescribed in regulations established by 

the Register of Copyrights.’’ 10 The 

legislative history states that the Office 

should establish a process that is 

‘‘accessible especially for pro se parties 

and those with little prior formal 

exposure to copyright laws.’’ 11

Parties provided comments on several 

matters relating to the contents of a 

claim. Commenters emphasized the 

need for plain language,12 suggested that 

the forms should be available, at a 

minimum, in English and Spanish,13

and encouraged the use of fillable 

forms.14 The Office agrees with these 

suggestions, and intends to use plainlanguage fillable forms throughout 

various stages of CCB proceedings, 

including for the filing of a claim. 

The Office proposes that to initiate a 

proceeding, a claimant must: First, 

complete a claim form provided by the 

CCB; second, complete an initial notice 

form, also provided by the CCB; and, 

finally, submit the completed forms and 

required filing fee through the Board’s 

electronic filing and document 

management system. A claimant who is 

unable to use the electronic filing and 

document management system may 

initiate a proceeding by using printed 

forms and alternative submission 

instructions. In addition to the statutory 

requirements to submit the claim and 

filing fee to the CCB, the Office is 

proposing that the claimant be required 

to submit a completed initial notice 

form with the claim form. This proposal 

allows a Copyright Claims Attorney to 

review the initial notice and address 

any issues during compliance review, 

and issue the signed notice under 

Copyright Office seal upon approving 

the claim.15

The proposed rule sets forth the 

required information for the claim form. 

It generally requires the claimant to 

identify the parties, the claim asserted 

under section 1504(c), and the harms 

experienced as a result of the dispute 

subject to the proceeding. Then, the 

claimant must identify certain facts 

relevant to the claim and provide a 

statement describing the dispute in 

more detail. The 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.16

The Office received one substantive 

comment arguing that the claim should 

require more than is required by notice 

pleading as set forth in the Federal 

Rules of Civil Procedure.17 Such a 

heightened pleading standard, however, 

would go against congressional intent. 

The legislative history explains that 

‘‘many of the terms and processes used 

in the [CASE] Act are drawn from 

preexisting, related state and federal 

statutory language, the Federal Rules of 

Civil Procedure, and established case 

law,’’ and emphasizes that the CCB is 

intended to be ‘‘an efficient, effective, 

and voluntary alternative’’ to 

litigation.18 As a general rule, therefore, 

practice before the CCB should be less 

complex than practice in the federal 

courts, and certainly not more complex. 

Further, to the extent there are 

statements in the claim that clearly do 

not state facts upon which relief can be 

granted, the CCB anticipates that the 

compliance review process typically 

will resolve such issues. Finally, the 

claimant must certify that the 

information provided in the claim form 

is ‘‘accura[te] and truthful[ ]’’ 19 to the 

best of the certifying party’s knowledge. 

The proposed rule also allows 

optional documentation to be attached 

to the claim form, including copies of 

the works involved. While some 

commenters suggested that additional 

documentation should be a requirement 

for filing a claim and serving notice,20

the Office believes that requiring such 

information at the initial claim stage 

would discourage claimants from 

initiating a proceeding and would be 

more burdensome than the requirements 

for litigation in the federal courts. 

Documentary evidence will be a focus of 

the standard requests for production 

that the Office will propose in a future 

rulemaking addressing discovery. 

The proposed rule does not address 

matters relating to the layout or 

presentation of questions on the form, as 

the Office seeks to preserve the 

flexibility to adjust those items as 

circumstances warrant. The Office 

intends to make proposed forms 

available in advance of the CCB’s 

commencement of operations. 

B. Review of the Claim by Officers and 

Attorneys 

1. Compliance Review 

After the claimant files a claim, the 

claim ‘‘shall be reviewed by a Copyright 

Claims Attorney to ensure that the claim 

complies with [chapter 15] and 

applicable regulations.’’ 21 If the 

claimant is proceeding ‘‘pro se,’’ i.e., 

they are not represented by an attorney, 

the claim and assertions are to be 

‘‘construed liberally in favor of 

adjudicating applicable claims and 

defenses.’’ 22

If the claim is found to comply with 

the statute and regulations, the CCB 

shall notify the claimant and provide 

instructions to proceed with service of 

the claim.23 If the claim is found not to 

comply, the CCB is required to provide 

the claimant with a notice of deficiency 

and an opportunity to file an amended 

claim within 30 days after receiving the 

notice.24 The amended claim is then 

reviewed, and the claimant is either 

notified of the sufficiency of the claim 

or directed to file an additional 

amended complaint in that 30-day 

period. This second amended complaint 

is reviewed a final time, with the CCB 


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

26Fed. R. Civ. P. 12(b)(6). 

27U.S. Copyright Office, Compendium of U.S. 

Copyright Office Practices, Third Edition sec. 

602.4(C) (3d ed. 2021). 

28Elec. Frontier Found. (‘‘EFF’’) Initial NOI 

Comments at 2. 

29 17 U.S.C. 1506(f)(3). 

30 Id. 

31See, e.g., EFF Initial NOI Comments at 3. 

32 17 U.S.C. 1506(g). 

33 Id. 

34 Id. at 1506(g)(1). 

35H.R. Rep. No. 116–252, at 22; see also 17 U.S.C. 

1506(g)(1). 

36 17 U.S.C. 1506(g)(1). 

37 86 FR at 16159. 

38Admin. Off. of the U.S. Cts., Summons in a 

Civil Action (June 2012), https://www.uscourts.gov/ 

sites/default/files/ao440.pdf (form AO 440); Clerk 

for the Circuit Court of Cook County, Summons 

(Dec. 2020), http://www.cookcountyclerkofcourt.

org/Forms/pdf_files/CCG0001.pdf (form CCG 0001 

A) (as of Sept. 14, 2021, Cook County Clerk of Court 

website was inaccessible); New Jersey Courts, Small 

Claims Summons and Return of Service (Sept. 

2018), https://njcourts.gov/forms/10534_appendix_

xi_a2.pdf. 

39 86 FR at 16159. 

40 Id. 

41Copyright Alliance, et al. Initial NOI Comments 

at 11. However, the same comment observed that 

the notice ‘‘should provide only the essential 

information about the process because providing 

too much information could overwhelm the 

Respondent.’’ Id. at 12. Another commenter 

suggested that the notice include the ‘‘legal name 

of the Plaintiff, a physical address, and a telephone 

number by which a live person can be called by the 

Continued 

either clearing the claim for service or, 

upon confirmation of noncompliance by 

a Copyright Claims Officer, dismissing 

the claim without prejudice. The CCB 

shall also dismiss without prejudice any 

proceeding in which the claimant fails 

to file an amended complaint within the 

30-day window. Counterclaims are 

subject to the same compliance 

review.25

The statute describes the compliance 

review process in some detail. Here, the 

Office proposes a limited number of 

regulations to clarify the scope of 

review. The proposed rule provides that 

a Copyright Claims Attorney shall 

review a claim to determine whether the 

allegations ‘‘clearly do not state a claim 

upon which relief can be granted.’’ This 

standard echoes the standard set forth in 

the Federal Rules of Civil Procedure,26

but is meant to be less exacting than that 

governing a motion to dismiss. The 

Office believes that this approach is in 

the best interest of all parties: The 

claimant has the opportunity to state its 

case; the respondent has a better 

understanding of the allegations 

involved in the claim and will be in a 

stronger position to consider 

participation; and the CCB will avoid 

the administrative burden associated 

with hearing overbroad or clearly 

implausible claims. The Office is also 

proposing to incorporate an 

examination standard from the 

Compendium of U.S. Copyright Office 

Practices, which stipulates that while 

the Office does not conduct factual 

investigations, it may take 

administrative notice of facts generally 

known as established and may use that 

knowledge during compliance review.27

Finally, as suggested by one 

commenter,28 the proposed rule clarifies 

that the CCB’s clearance of a claim for 

notice is not an endorsement of the facts 

and statements asserted in the claim. 

2. Dismissal for Unsuitability 

Under the statute, the CCB must 

dismiss a claim or counterclaim without 

prejudice if it ‘‘concludes that the claim 

or counterclaim is unsuitable for 

determination . . . including on 

account of any of the following . . . 

[t]he failure to join a necessary party; 

. . . [t]he lack of an essential witness, 

evidence, or expert testimony; [or] [t]he 

determination of a relevant issue of law 

or fact that could exceed either the 

number of proceedings the [CCB] could 

reasonably administer or the subject 

matter competence of the [CCB].’’ 29 The 

issue of unsuitability may be taken up 

by the Board at any time during the 

proceedings, whether during 

compliance review or thereafter.30

The Office did receive suggestions as 

to particular claims that should be 

considered unsuitable.31 At this time, 

however, the proposed regulation 

addresses only the procedural matter of 

how the issue of unsuitability will be 

addressed. The Office proposes that the 

issue of unsuitability may be raised by 

the Board or by any party to the 

proceeding. Upon consideration of the 

matter, the Board may issue an order 

dismissing the claim without prejudice, 

after which the claimant has an 

opportunity to request reconsideration 

and the respondent has an opportunity 

to respond. In proposing this approach, 

the Office seeks to strike an appropriate 

balance between maximizing parties’ 

opportunity to be heard and preserving 

the Board’s authority to dismiss claims 

that it determines to be unsuitable for 

determination. 

C. Service of Initial Notice 

Once the claimant receives 

notification that the claim is compliant, 

the claimant must, not later than ninety 

days from receiving notification, file 

with the CCB proof of service on the 

respondent in order to proceed with the 

claim.32 To effectuate service, the 

claimant ‘‘shall cause notice of the 

proceeding and a copy of the claim to 

be served on the respondent’’ 33 as 

prescribed by the statute and 

regulations. 

1. Content of Initial Notice 

To ensure that respondents are 

provided with proper notice of the 

claims asserted against them, the statute 

details elements that must be included 

in the initial notice accompanying the 

claim. In addition, the Office is required 

to create a prescribed initial notice form 

and is vested with regulatory authority 

to specify further requirements to be 

included in the notice. 

At a minimum, the initial notice must 

describe the CCB and the nature of a 

CCB proceeding, so that pro se parties 

understand the process.34 The initial 

notice must include ‘‘a clear and 

prominent explanation of the 

respondent’s right to opt out of the 

proceeding and the rights the 

respondent waives if [they] do [ ] not.’’ 35

In particular, it must include a 

prominent statement that by not opting 

out of a CCB proceeding within sixty 

days of receiving the notice, the 

respondent ‘‘loses the opportunity to 

have the dispute decided by a court 

created under article III of the 

Constitution of the United States’’ and 

‘‘waives the right to a jury trial 

regarding the dispute.’’ 36

In the NOI, the Office requested 

comment on ‘‘additional regulatory 

requirements to help ensure that the 

initial notice conveys a clear 

explanation of the CCB, deadlines 

associated with the pending claim, the 

ability and method for the respondent to 

opt out of the proceeding, and the 

benefits and consequences of 

participating or declining to do so.’’ 37

The Office provided examples of 

various approaches by federal and state 

courts,38 and invited parties to provide 

specific language to be included on the 

form or sample forms.39 The Office 

asked whether the notice should 

include a docket number and links to 

the CCB’s website for relevant public 

information, and encouraged parties to 

suggest additional educational 

information ‘‘while being mindful that 

the notice must remain easy to 

understand and avoid overwhelming 

respondents.’’ 40

In response, commenters suggested a 

number of additional features to be 

included. Some proposed that the notice 

include not only information such as 

the respondent’s name, phone number, 

address, email address, and other 

contact information, but also 

information about the claim itself and 

background information about the 

CCB.41 Others suggested that the notice 


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53900 Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Proposed Rules 

Respondent during normal business hours to 

discuss the claim.’’ Ryan Fountain Initial NOI 

Comments at 1. 

42Anthony Davis Jr. & Katherine Luce Initial NOI 

Comments at 2. 

43Patreon Initial NOI Comments at 3. 

44Copyright Alliance Initial NOI Comments at 11. 

45See, e.g., AIPLA Initial NOI Comments at 2; 

Copyright Alliance, et al. Initial NOI Comments at 

18. 

46See, e.g., Public Knowledge, Re:Create, Ctr. for 

Democracy & Tech., R St. Inst., Org. for 

Transformative Works (‘‘Public Knowledge, et al.’’) 

Initial NOI Comments at 14 (‘‘The notice language 

needs to describe the opt-out process clearly, 

concisely, and in a manner that is comprehensible 

to a lay audience.’’); Google Initial NOI Comments 

at 1 (‘‘To the extent that the Office intends to give 

respondents information on the possible 

consequences of opting out, it will be important to 

communicate the associated uncertainty in a clear 

and disinterested way.’’); Authors Alliance Initial 

NOI Comments at 3 (asserting among other things 

that ‘‘the notice should also describe situations for 

which the tribunal may not be a suitable venue for 

dispute resolution’’). 

47Ben Vient Initial NOI Comments at 2. 

48Computer & Comms’s Indus. Assoc. & internet 

Assoc. (‘‘CCIA & IA’’) Initial NOI Comments at 3. 

49 17 U.S.C. 1506(g)(3). 

50 Id. at 1506(g)(9). 

51 Id. at 1506(g)(4)–(5). 

52 Id. at 1504(d)(3). 

53For a minor or an incompetent individual, 

service can be effectuated only by ‘‘complying with 

State law for serving a summons or like process on 

such an individual in an action brought in the 

courts of general jurisdiction of the State where 

service is made.’’ Id. at 1506(g)(8); see also id. at 

1506(g)(4). 

54See Fed. R. Civ. P. 4(e). 

55 17 U.S.C. 1506(g)(4)(A). 

56 Id. at 1506(g)(4)(C). 

57 Id. at 1506(g)(4)(D). 

58 Id. at 1506(g)(5)(A)(i). 

include explanations of copyright law,42

fair use,43 and other defenses.44

Multiple commenters argued that the 

notice should not include elements of 

infringement or defenses, but should 

simply state that there are defenses 

available and include a link to the 

Copyright Office web page with 

information about fair use and other 

defenses that would be typically 

raised.45 Many agreed that the notice 

should address the pros and cons of 

opting out, with several noting that the 

Board should do so clearly, concisely, 

and in a disinterested way.46

The Office appreciates parties’ 

comments on this issue and proposes 

that the initial notice to the respondent 

be provided in a form that includes the 

information required by the statute as 

well as additional basic information 

about the claim and the parties. The 

Office envisions a notice that, as is the 

case with summonses issued by federal 

courts, is clear and concise and is easy 

to understand. The Office also envisions 

that the notice will bear the Office’s 

seal, the CCB’s logo, and other indicia 

to identify it as an official document 

issued by the federal government. 

The Office received a number of 

suggestions related to substantive claim 

information that should be attached to 

the notice, including evidence of 

infringement 47 and a picture of the 

allegedly infringing work.48 The Office 

believes that for efficiency and clarity, 

substantive information should be 

included in or attached to the claim, 

which sets forth the facts at issue, rather 

than the notice, which sets forth the 

procedural implications of the claim. 

The initial notice is similar to a 

summons, and with a few exceptions 

(such as the caption, docket number, 

and names and addresses of the parties), 

every notice issued by the Board will be 

identical. And, for the reasons stated 

above, the Office has included 

documentary evidence as an optional 

attachment to the claim rather than a 

requirement. 

The proposed rule prescribes that 

claimants use an initial notice form 

provided by the Board, with most of the 

content prepared by the Board for use in 

all initial notices. Claimants will fill in 

certain information, such as the names, 

addresses, and contact information for 

the claimant and the respondent. The 

rule does not require that the claimant 

provide a telephone number or email 

address in the initial notice. Although 

the Office recognizes the benefits of 

providing means through which the 

parties may communicate to discuss the 

merits of a claim and to discuss 

settlement, the Office also recognizes 

that such information might implicate 

privacy or other interests. The Office 

invites comments on this proposed 

approach. 

In addition to basic information about 

the parties, the notice form would 

require the claimant to identify the 

nature of the claims being asserted—i.e., 

whether the claim is for copyright 

infringement, a declaration of 

noninfringement, or misrepresentation 

in connection with a notification or a 

counter notification served on an online 

service provider under section 512 of 

title 17. 

The notice would also include the 

information required by 17 U.S.C. 1506, 

including a brief description of the CCB 

and its proceedings, a statement 

advising the respondent of the right to 

opt out of the proceeding, how to opt 

out, and the consequences of doing so 

(including the statements required by 17 

U.S.C. 1506(g)(1)(A) and (B)). It is the 

Office’s intention that the latter 

statement be concise, clear, and 

objective. 

The notice will also direct the 

respondent (as well as the claimant) to 

further information that will be made 

available on the Office or CCB websites 

pertaining to copyright law, including 

exclusive rights, infringement, and 

exceptions and limitations, as well as 

further information on CCB 

proceedings. Information will be 

provided on how to access the Board’s 

electronic filing and document 

management system, which will also 

give respondents a means to confirm 

that the notice relates to a genuine legal 

proceeding. 

2. Service of Process and Designated 

Agents 

Under the statute, any individual who 

is not a party to the proceeding and is 

older than 18 years of age may effectuate 

service,49 and both service and waiver 

of service may only occur within the 

United States.50 Choosing how to 

effectuate service, however, depends on 

the nature of the respondent. The statute 

includes separate rules of service for 

individuals and corporations, 

partnerships, and unincorporated 

associations, including those 

organizations using designated service 

agents.51 No claims can be brought ‘‘by 

or against a Federal or State 

governmental entity.’’ 52

Service on an individual 53 may be 

effectuated by using procedures 

analogous to those in the Federal Rules 

of Civil Procedure.54 Service can be 

accomplished by ‘‘complying with State 

law for serving a summons in an action 

brought in courts of general jurisdiction 

in the State where service is made.’’ 55

Service can also be accomplished by 

‘‘leaving a copy of the notice and claim 

at the individual’s dwelling or usual 

place of abode with someone of suitable 

age and discretion who resides there.’’ 56

Finally, service on an individual can be 

accomplished by ‘‘delivering a copy of 

the notice and claim to an agent 

designated by the respondent to receive 

service of process or, if not so 

designated, an agent authorized by 

appointment or by law to receive service 

of process.’’ 57

Like individuals, corporations, 

partnerships, or unincorporated 

associations can be served ‘‘by 

complying with State law for serving a 

summons in an action brought in courts 

of general jurisdiction in the State 

where service is made.’’ 58 These 

organizations can also be served by 

delivering the notice and claim to ‘‘an 

officer, a managing or general agent, or 

any other agent authorized by 

appointment or by law to receive service 

of process in an action brought in courts 

of general jurisdiction in the State 


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59 Id. at 1506(g)(5)(A)(ii). If the service agent is 

‘‘one authorized by statute and the statute so 

requires,’’ the claimant must also mail a copy of the 

notice and claim to the respondent. Id. 

60 Id. at 1506(g)(5)(B). 

61 Id. 

62 86 FR at 16160. 

63 17 U.S.C. 1506(j). 

64Amazon Initial NOI Comments at 3; CCIA & IA 

Initial NOI Comments at 3; Google Initial NOI 

Comments at 1. 

65Amazon Initial NOI Comments at 3; Google 

Initial NOI Comments at 1–2. 

66Motion Picture Ass’n, Recording Indus. Ass’n 

of Am. & Software and Info. Ass’n of Am. (‘‘MPA, 

RIAA & SIIA’’) Initial NOI Comments at 5; Verizon 

Initial NOI Comments at 4. 

67Copyright Alliance, et al. Initial NOI Comments 

at 15–16. 

68 81 FR 75695, 75698 (Nov. 1, 2016). 

69 17 U.S.C. 512(c)(2) (‘‘The limitations on 

liability established in this subsection apply . . . 

only if the service provider has designated an agent 

to receive notification of claimed infringement . . . 

and by providing [the following information] to the 

Copyright Office . . . .’’). 

70 Id. at 1506(g)(5)(B) (‘‘A corporation, 

partnership, or unincorporated association . . . 

may elect to designate a service agent to receive 

notice of a claim against it.’’). 

71 Id. at 1506(g)(6). 

72 Id. at 1506(g)(6)(A)–(B). 

73 Id. at 1506(g)(7)(A). 

74Engine Initial NOI Comments at 4. 

where service is made.’’ 59 Under the 

statute, such corporations, partnerships, 

or unincorporated associations may 

elect to receive CCB claim notices via a 

designated service agent. The Office is 

required to establish regulations 

governing this designated service agent 

option and to ‘‘maintain a current 

directory of service agents that is 

available to the public for inspection, 

including through the internet.’’ 60 The 

Office may charge these organizations a 

fee to maintain the designated service 

agent directory.61

In the NOI, the Office requested 

comments specifically related to the 

designated service agent directory. The 

Office encouraged commenting parties 

to review the Office’s designated agent 

directory for online service providers, 

created pursuant to the Digital 

Millennium Copyright Act (‘‘DMCA’’), 

and to discuss to what extent the Office 

should use the DMCA database as a 

model.62 The Office also invited 

comments on how the system should 

indicate corporate parent-subsidiary 

relationships, and on fees. In addition, 

the Office noted its general authority to 

establish additional regulations 

governing service throughout a CCB 

proceeding,63 and requested comment 

on any issues that should be considered 

related to that authority. 

The Office received a number of 

comments regarding the ability of a 

corporate parent to act as a designated 

agent on behalf of a subsidiary. The 

majority of commenters who addressed 

the issue encouraged the designation of 

one agent for the corporate parent and 

all subsidiary firms.64 Commenters also 

recommended that service agents be 

able to choose their method of service,65

and some argued that after an eligible 

entity has designated a service agent, 

the only effective means of service that 

should be allowed is through the 

identified service agent in the 

database.66 The Office appreciates these 

comments and finds them to be 

generally consistent with the statutory 

text. The proposed rule allows a 

submitter to provide the same 

designated agent information for 

multiple companies, partnerships, or 

unincorporated associations, but a 

separate submission would be required 

for each entity. A designated agent 

submission is required to include 

identifying information for the business, 

including contact information, principal 

place of business, and for corporations, 

the state of incorporation, any 

associated state file or registration 

number, and all other states in which 

the corporation is registered to do 

business. Organizations may also list up 

to five alternate names under which 

they are doing business, i.e., trade 

names. The names provided will be 

used for indexing the designation, and 

the business contact information will 

not be on public view. 

The submission must also include 

contact information for the service agent 

and the designating entity’s consent to 

service by mail. An entity submitting a 

designation may also elect to accept 

service by email in addition to mail. In 

such cases, the email address of the 

designated service agent will be 

included in the public directory. 

Although some parties suggested that 

the Office should require periodic 

renewal of the designated agent 

listing,67 the Office has not included 

such a requirement in the proposed 

rule. It is true that, in the context of the 

designated agent databases for online 

service providers under the DMCA, the 

Office implemented a renewal 

requirement to ‘‘encourage effective 

compliance with the requirements of [17 

U.S.C.] 512(c)(2).’’ 68 That provision 

reflects the statutory requirement that a 

service provider must designate an 

agent with the Copyright Office to be 

eligible for statutory safe harbor 

provisions.69 Here, designating a service 

agent is not a statutory requirement for 

service on a corporation, partnership, or 

unincorporated association, but an 

administrative convenience.70 In 

addition, the claimant may effectuate 

service by alternative means. While the 

Office accepts the possibility that 

corporations, partnerships, or 

unincorporated associations may not 

keep current their designations, service 

on the agent who is designated in the 

directory shall be valid unless the 

designating entity cancels or amends the 

designation. The Office believes that 

this should offer sufficient incentive to 

parties to keep their designations 

current. 

Finally, the proposed rule provides 

that if the CCB determines that a 

designation does not qualify, or if it has 

reason to believe the submitter does not 

have authority to make the designation, 

CCB staff will notify the submitter that 

the designation will be removed. The 

submitter will then have ten days to 

respond. If the submitter does not 

respond, or the CCB determines that the 

response is insufficient, the entry will 

be removed from the directory. 

The proposed rule also provides 

requirements for service of materials 

filed after the initial notice and claim. 

The proposed rule has a general 

requirement for service through the 

CCB’s electronic filing management 

system or by other means of electronic 

service, and establishes such service 

methods as the default. Unrepresented 

parties, however, may be excused from 

electronic service and instead receive 

service by mail or in-person delivery. 

The same structure is proposed for filing 

documents beyond the initial notice and 

claim: parties who are excused from 

using the electronic filing and document 

management system may file documents 

by email, mail, hand delivery, or courier 

delivery. 

D. Waiver of Service 

As an alternative to serving notice of 

the claim on a respondent, the statute 

allows the claimant to request waiver of 

service. The claimant must send the 

request for waiver of service to the 

respondent ‘‘by first class mail or by 

other reasonable means,’’ and return of 

the acceptance of waiver must be at no 

cost to the respondent.71 The claimant’s 

waiver request must be in writing, 

include a notice of the proceeding and 

a copy of the claim, state the date the 

request was sent, and provide the 

respondent thirty days to respond.72

The personal service waiver, if accepted 

by respondent, does not constitute a 

waiver of the respondent’s right to opt 

out of the proceeding.73

The Office received one comment 

specifically addressing waiver, 

expressing concern regarding the use of 

‘‘intimidating or misleading 

language.’’ 74 The Office intends to 


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75 17 U.S.C. 1506(h). 

76 Id. at 1506(h)(1). 

77 86 FR at 16159. 

78 17 U.S.C. 1506(h). 

79Authors Alliance Initial NOI Comments at 4; 

Niskanen Ctr. Initial NOI Comments at 4. 

80AIPLA Initial NOI Comments at 3. Copyright 

Alliance, et al. Initial NOI Comments at 14. 

81 17 U.S.C. 1506(aa)(1), 1507(b)(2)(A). 

82 Id. at 1506(i). 

83 Id. 

84 86 FR at 16161. 

85See, e.g., Copyright Alliance, et al. Initial NOI 

Comments at 17–18; EFF Initial NOI Comments at 

2–3; Engine Initial NOI Comments at 5–6; Internet 

Archive Initial NOI Comments at 1–2; MPA, RIAA 

& SIIA Initial NOI Comments at 8; Public 

Knowledge, et al. Initial NOI Comments at 14. 

86Engine Initial NOI Comments at 5; Niskanen 

Ctr. Initial NOI Comments at 4. 

87Public Knowledge, et al. Initial NOI Comments 

at 13–14. 

88Copyright Alliance, et al. Initial NOI Comments 

at 12. 

require a standard form provided by the 

CCB for requesting waiver of service. 

The form will provide the basic 

information regarding the proceeding, 

clarify that the form is not a formal 

service of summons and does not waive 

the respondent’s right to opt out of the 

proceeding, and describe the effect of 

agreeing or declining to waive service. 

The claimant can request waiver by 

mailing the request, claim, initial notice, 

and envelope with postage prepaid to 

the respondent. The respondent will 

have thirty days from the date the 

request is sent to waive service, and 

may return the signed waiver form by 

mail or by email, if the claimant 

includes an email address in the 

request. If the respondent accepts 

waiver of service, and further does not 

opt out, respondent will have an 

additional thirty days to file a response 

beyond the time for response typically 

set by the CCB. If the respondent does 

not waive service, the claimant must 

complete service with sufficient time to 

file the proof of service with the CCB. 

E. Second Notice 

In addition to the notice served by the 

claimant on the respondent, the CCB is 

required to issue a second notice to the 

respondent if the respondent has not 

already opted out or filed a response. 

The statute requires that the Register 

promulgate regulations ‘‘providing for a 

written notification to be sent by, or on 

behalf of, the Copyright Claims Board to 

notify the respondent of a pending 

proceeding.’’ 75 Similar to the claimant’s 

initial notice, this notice must ‘‘include 

information concerning the 

respondent’s right to opt out of the 

proceeding, the consequences of opting 

out and not opting out, and a prominent 

statement that, by not opting out within 

60 days after the date of service . . . the 

respondent loses the opportunity to 

have the dispute decided by a court 

created under article III of the 

Constitution of the United States’’ and 

‘‘waives the right to a jury trial 

regarding the dispute.’’ 76 This second 

notice supplements the initial notice 

served by the claimant and is intended 

to facilitate understanding of the official 

nature of the documents and 

proceeding, encourage a respondent to 

review the materials, and overall, 

increase the likelihood that a 

respondent engages with the asserted 

claim and knowingly elects to proceed 

or opt out of the CCB proceeding. 

In the NOI, the Office sought 

comment on the second notice, 

including ‘‘its content and how to 

ensure that recipients understand that it 

is an official Federal Government 

notification.’’ 77 The Office also 

requested input on the method of 

service—specifically, whether the 

second notice should be sent ‘‘by or on 

behalf of’’ the CCB, whether the second 

notice should be posted to the online 

filing system or delivered by mail or 

email, and how delivery should be 

documented.78

Commenters suggested that the 

second notice should be substantially 

the same as the first, with a prominent 

warning that this is the second and final 

notice with an explanation of the impact 

of not opting out.79 Parties also 

recommended that the CCB issue the 

second notice via U.S. mail.80 The 

Office agrees with these comments and 

proposes that the second notice closely 

mirror the initial notice, specifically 

with regard to the description of the 

CCB, the consequences of opting out, 

the process of opting out, and accessing 

legal assistance. The Office proposes to 

issue the second notice by mail, but also 

to deliver a second copy via email to the 

designated service agent of a respondent 

that is a corporation, partnership, or 

unincorporated association that has 

indicated in the designated service 

agent directory that it will accept email 

service. 

The Office has also proposed that the 

second notice be issued no later than 

twenty days after the claimant files 

proof of service or waiver of service. 

The CCB will not issue a second notice 

if the respondent has opted out. The 

Office anticipates that the respondent 

will have at least thirty days between 

the receipt of the second notice and the 

end of the opt-out period, given that the 

claimant has seven days to file proof 

after effectuating service or obtaining 

waiver, and the Office will issue the 

second notice no more than twenty days 

after that. Delays in the claimant’s filing 

of proof of service or waiver may 

constitute good cause for extending the 

opt-out or response period. 

F. Opt-Out Procedures 

Once the respondent receives notice 

of the claim, the respondent has sixty 

days to opt out of the proceeding before 

the CCB, although the CCB can extend 

that period in the interests of justice, 

such as for a delay in the receipt of a 

second notice due to a claimant’s failure 

to file proof of service in a timely 

manner.81 If a respondent does not 

timely opt out, the proceeding will 

become active and the respondent will 

be bound by the CCB’s determination.82

If the respondent does opt out, the 

proceeding will be dismissed without 

prejudice.83

The Office solicited general input 

regarding opt-out, in particular, the form 

and process of a written opt-out 

notice.84 Commenters were consistent 

that the opt-out process should be quick 

and easy to exercise, and that 

respondents should be provided both 

online and mail options for opting out.85

Parties proposed different approaches 

for the online opt-out process. 

Suggestions included the creation of a 

QR code,86 a button on the CCB home 

page,87 and providing a verification key 

code for security.88 The Office 

appreciates parties’ comments on this 

issue and proposes an opt-out 

notification form that asks for the docket 

number of the claim, identifying 

information regarding the respondent, 

and a signed affirmation that the person 

affirming is the respondent identified in 

the claim (or a representative of that 

respondent) and that the respondent 

will not be participating in the CCB 

proceeding. This notification can be 

submitted either online using a form on 

the CCB’s website or through the mail, 

or via hand delivery or commercial 

courier. The Office has included the 

suggestion that an online opt-out be 

accompanied by a verification code 

provided in the initial notice and 

second notices, and will continue to 

consider the remaining suggestions 

regarding online opt-out as it develops 

its form, website, and online filing 

system. The CCB will include in the 

initial and second notice instructions 

for completing opt-out election online, 

as well as by using a paper opt-out form. 

The proposed rule clarifies various 

issues related to the scope and effect of 

opting out. In particular, the rule 

requires that each respondent to a 

proceeding independently opt out, and 

that an opt-out will be effective against 

duplicate claims but not unrelated 


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89 86 FR at 16161. 

90For example, a claimant could file a federal 

lawsuit after the respondent opts out of a CCB 

claim. The statute contemplates that the parties 

could agree to a CCB proceeding in lieu of further 

litigation. See 17 U.S.C. 1504(d)(2). 

91 86 FR at 16161. 

92 17 U.S.C. 1504(c)(5). 

93 Id. at 1506(g)(7)(B). 

94 Id. at 1506(i). A proceeding is deemed active 

when ‘‘proof of service has been filed by the 

claimant and the respondent does not submit an 

opt-out notice to the [CCB] within [the] 60-day 

period.’’ Id. 

95 Id. at 1506(k). 

96Fed. R. Civ. P. 12(h). 

97H.R. Rep. No. 116–252, at 22. 

98 17 U.S.C. 1504(c)(4)(B)(i). 

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

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

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

102Fed. R. Civ. P. 13(a). 

claims. The Office recognized that 

‘‘Congress did not establish a blanket 

opt-out for any entities other than 

libraries and archives,’’ 89 and yet the 

Office also recognizes that the result of 

an opt-out is a dismissal without 

prejudice, leaving a claimant open to 

file substantially the same claim again. 

The proposed rule is crafted in light of 

the Office’s inability to impose a blanket 

opt-out, but still seeks to avoid 

subjecting a respondent to refiled 

claims. 

Not included in this proposed rule is 

a specific mechanism for a respondent 

to revoke an opt-out for a particular 

claim. The Office recognizes that there 

may be situations where respondents 

may wish to change their minds and opt 

in to a proceeding that was previously 

filed with the CCB and dismissed due 

to a prior opt-out election.90 The Office 

welcomes comment on whether the 

regulatory text should include a 

provision permitting a respondent to 

give the CCB notice of an intention to 

participate after an initial opt-out, and, 

if so, any suggestions for regulatory 

language to govern this process. 

The Office also solicited comments 

regarding whether it should create a 

publicly accessible list of entities or 

individuals who have opted out of 

particular proceedings.91 At present, 

given the limited time before the 

anticipated commencement of CCB 

operations and the need to focus on 

establishing the core proceedings of the 

CCB, the proposed rule does not provide 

for a public list of prior opt outs. The 

Office may, however, revisit this issue 

in the future. 

G. Response 

A respondent who decides not to opt 

out of the proceeding must file a 

response to the claim with the CCB. The 

response may include ‘‘legal or 

equitable defense[s] under this title or 

otherwise available under law’’ 92 in 

response to the claim. A respondent 

who timely waives service has an 

additional thirty days to file a response 

in addition to any deadlines set forth by 

the CCB.93 The statute is otherwise 

silent as to the timing of a response 

filing, and a proceeding is considered 

active prior to the filing of any 

response.94 Given that a scheduling 

order must be sent out ‘‘upon 

confirmation that a proceeding has 

become an active proceeding’’ 95—i.e., 

upon the filing of proof of service and 

the passing of the opt-out window—the 

Office understands this requirement to 

mean that any response timeline is to be 

set forth after the proceeding becomes 

active and should be included in the 

scheduling order. Accordingly, the 

scheduling order issued by the CCB 

‘‘upon confirmation that a proceeding 

has become an active proceeding’’ will 

include a thirty-day deadline from the 

date of the scheduling order for filing 

the response. If the respondent has 

waived service, thereby availing itself of 

an extra thirty days to respond to the 

claim, the order will require that the 

response be filed within sixty days of 

the date of the scheduling order. 

The Office proposes that to respond to 

a claim, the respondent must complete 

the appropriate form provided by the 

CCB and submit the completed form 

through the Board’s electronic filing and 

document management system. If a 

respondent is unable to use the 

electronic filing and document 

management system, it may submit a 

response by following alternative 

submission instructions provided in the 

form or by the CCB. In addition to 

identifying information and 

certification, the form will ask for short 

statements from the respondent 

disputing the facts of the claim and 

describing the dispute or the reasons 

claimant’s claim has no merit from its 

point of view. As discussed below, the 

respondent will be able to raise 

counterclaims. For infringement claims, 

the form will allow the respondent to 

identify relevant defenses. In contrast to 

the Federal Rules of Civil Procedure,96

however, the proposed regulation does 

not provide that a defense that is not 

asserted in a response is waived by the 

respondent. At this early stage of the 

proceeding, such a rigid application of 

pleading requirements would impose an 

unjustifiable burden on respondents, 

especially those who are representing 

themselves. A subsequent rulemaking 

will address the appropriate stage at 

which defenses must be raised. 

The proposed rule also allows 

optional documentation to be attached 

to the response form, including copies 

of the works involved in the claim. In 

requesting this information, the Office is 

seeking to provide respondents with the 

opportunity to meaningfully respond 

during the initial stage of the 

proceeding. 

For the response, the Office is 

particularly interested in comments on 

an appropriate presentation of possible 

defenses available to the respondent, 

any instructional or educational 

material that would assist the 

respondent in constructing its response, 

and any other suggestions that would 

enhance the respondent’s ability to be 

meaningfully heard and the claimant to 

be on notice of defenses.97 With respect 

to defenses, the Office seeks comment 

on whether providing a list of defenses 

(or a link to lists of defenses) that are 

commonly pleaded in copyright 

infringement suits would be productive 

at this, or any, stage in the case, and 

how to ensure that a respondent 

understands the defenses available and 

only asserts those that are applicable. 

H. Counterclaims 

The CCB may also hear counterclaims 

that either ‘‘arise[ ] under section 106 or 

section 512(f) 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,’’ 98 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.’’ 99 Any asserted counterclaim 

is subject to the same compliance 

review applicable to an initial claim 100

and is subject to dismissal for 

unsuitability.101

The Office proposes that the 

information required to assert a 

counterclaim should closely mirror the 

information required to assert a claim. A 

counterclaim must be filed at the time 

of the response, unless the Board, for 

good cause, permits it to be asserted 

later in the proceeding. This approach 

resembles the general requirement of 

asserting a compulsory counterclaim in 

federal court.102 In proposing this 

approach, the Office is seeking to 

maintain an efficient, orderly procedure 

that provides parties sufficient notice as 

to the issues involved in the proceeding. 

The requirements for responding to a 

counterclaim largely mirror the 

requirements for responding to a claim, 

including that a failure to file a response 


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103 17 U.S.C. 1506(f)(2) (stating that when the 

Copyright Claims Attorney finds a counterclaim to 

be compliant, ‘‘the counterclaimant and such other 

parties shall be so notified’’). 

104 Id. at 1504(c)(4). 

105 Id. at 708. 

106 Id. at 1501(1). 

107 Id. at 1506(e)(3). 

108 Id. at 1510(c). 

109The 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. 

110 17 U.S.C. 1506(e). 

111 Id. at 1506(x). 

112 Id. at 1501(c). 

113H.R. Rep. No. 116–252, at 17; S. Rep. No. 116– 

105, at 9–10. 

114S. Rep. No. 116–105, at 4 n.4. 

115 17 U.S.C. 1506(e)(3). 

116 Id. at 1506(i) (‘‘If proof of service has been 

filed by the claimant and the respondent does not 

submit an opt-out notice to the Copyright Claims 

Board within that 60-day period, the proceeding 

shall be deemed an active proceeding.’’). 

117See, e.g., Maryland Courts, District Court of 

Maryland Cost Schedule DCA–109, (rev. 2018), 

https://www.courts.state.md.us/sites/default/files/ 

import/district/forms/acct/dca109.pdf (assessing 

$18.00 for a small claims cross claim); Superior 

Court of California, Statewide Civil Fee Schedule 

(2014), https://www.courts.ca.gov/documents/ 

filingfees.pdf (assessing fees for the answer or other 

first paper filed by a party other than plaintiff). 

118 17 U.S.C. 1506(g)(5)(B). 

119 86 FR 16160. 

120 37 CFR 201.3(c)(23). 

121Booz Allen Hamilton, 2017 Fee Study Report 

26 (2017), https://www.copyright.gov/rulemaking/ 

feestudy2018/fee_study_report.pdf. 

will constitute default. The triggering 

event for responding to a counterclaim, 

however, is the notification by a 

Copyright Claims Attorney that the 

counterclaim is compliant,103 rather 

than the issuance of a scheduling order. 

When a respondent files a counterclaim, 

a Copyright Claims Attorney must 

conduct the same compliance review 

that occurs after the filing of an initial 

claim. If the counterclaim is found to be 

compliant, the Board will provide 

notification of compliance, which will 

begin the counterclaim respondent’s 

thirty-day period to respond. The Board 

then will issue a new scheduling order 

updating the prior due dates as 

appropriate. 

The proposed rule does not provide a 

mechanism for the respondent to the 

counterclaim to opt out of the 

proceeding. The Office encourages 

comment on this issue, including as to 

whether such a process is permitted 

under the statute. The Office notes that 

Congress did not set forth a procedure 

for opting out of a counterclaim, in 

contrast to the detailed procedure set 

forth for the respondent’s initial ability 

to opt out. It also is noteworthy that 

Congress has limited allowable 

counterclaims to those arising from the 

same transaction or occurrence, and has 

further limited such claims to those 

implicating copyright or an agreement 

affecting the relief to be awarded to the 

claimant.104 Accordingly, there arguably 

should be no surprise for the claimant 

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. As 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. 

I. Fees 

The Register has general authority to 

set fees for Copyright Office services,105

and is specifically directed to set certain 

fees related to CCB proceedings.106

Here, the Office sets forth proposed fees 

relating to the CCB rules included in 

this notice. The Office will propose 

additional fees in subsequent 

rulemakings for the services addressed 

in those proceedings. 

1. Fee for Filing a Claim 

To commence a proceeding before the 

CCB, a claim must be accompanied ‘‘by 

a filing fee in such amount as may be 

prescribed in regulations established by 

the Register of Copyrights.’’ 107 The 

Office is given upper and lower limits 

to the filing fees it may assess: ‘‘the sum 

total of’’ filing fees must not be less than 

$100 or exceed the ‘‘cost of filing an 

action in a district court of the United 

States,’’ 108 currently $402.109 The 

Office understands the ‘‘sum total of’’ 

filing fees to consist of the two filing 

fees indicated in the statute: The filing 

fee for the initial claim 110 and the filing 

fee to request review of a final 

determination by the Register.111 The 

amount of fees must ‘‘further the goals 

of the Copyright Claims Board.’’ 112

The Office proposes an initial claim 

filing fee of $100 in the interest of 

facilitating access to the CCB. Given 

Congress’s goal of ensuring that the CCB 

be accessible to the widest constituency 

possible,113 the Office believes it is 

appropriate to keep the fee at the 

statutory minimum. 

The Senate Report proposed in a 

footnote that the Office consider a twotiered fee structure, with an initial fee 

assessed when the claim is filed and a 

second fee assessed after the claim 

becomes active.114 After consideration, 

the Office has not included such a 

framework in the proposed rule. First, it 

is not clear that the Office has the 

statutory authority to split fees in this 

way. While the statute expressly 

provides for a fee to initiate a claim,115

it does not require a separate fee for a 

proceeding to become active.116

Furthermore, if the Office were to 

establish a system in which it charged 

less than $100 for the first tier, and the 

claimant did not move on to the second 

tier, the total filing fees would not reach 

the statutory floor. The Office invites 

comment on these issues. 

For similar reasons, the Office does 

not currently propose a fee for a 

counterclaim. In contrast to the 

statutory provisions relating to a claim, 

the CASE Act contains no express 

authorization for the Office to charge 

fees for a counterclaim. The Office also 

notes that fees for counterclaims are not 

required in federal district court, 

although some state courts do assess 

such fees.117 The Office welcomes 

comment on this matter as well. 

2. Fee for Designated Service Agents 

As part of its authority to maintain a 

directory of service agents, the Office 

‘‘may require . . . corporations, 

partnerships, and unincorporated 

associations designating . . . service 

agents to pay a fee to cover the costs of 

maintaining the directory.’’ 118 As 

discussed in the NOI,119 the designated 

service agent directory will be similar in 

nature to the Office’s existing DMCA 

designated agent directory. The fee for 

adding an entry to the DMCA 

designated agent directory is $6.120 This 

amount was selected, despite an 

estimated $52 operating cost, in part 

due to the elastic nature of demand for 

the DMCA directory.121 The Office 

anticipates that the demand for the CCB 

designated service agent directory will 

be similarly elastic, if not more, given 

that participation in the designated 

service agent directory is not a statutory 

requirement. The proposed rule 

accordingly sets a $6 fee for designation 

of a service agent for CCB purposes. The 

Office believes that setting the fee at this 

low level will encourage participation 

by corporations, partnerships, and 

unincorporated associations, which in 

turn will produce a robust database that 

benefits claimants and respondents 

alike. 

List of Subjects 

37 CFR Part 201 

Copyright, General provisions. 

37 CFR Part 220 

Claims, Copyright, General. 


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37 CFR Part 222 

Claims, Copyright. 

37 CFR Part 223 

Claims, Copyright. 

37 CFR Part 224 

Claims, Copyright. 

Proposed Regulations 

For the reasons stated in the 

preamble, the U.S. Copyright Office 

proposes to amend Chapter II, 

Subchapters A and B, of title 37 Code 

of Federal Regulations to read 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. 

■ 2. In § 201.3, revise the section 

heading and add paragraph (g) to 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) Filing a claim before the Copyright Claims Board ......................................................................................................................... 100 

(2) Designation of a service agent by a corporation, partnership, or unincorporated association under 17 U.S.C. 1506(g)(5)(B), 

or amendment of designation .......................................................................................................................................................... 6 

(3) [Reserved] ...................................................................................................................................................................................... ........................

Subchapter B—Copyright Claims Board and 

Procedures 

■ 3. Add part 220 to read as follows: 

PART 220—GENERAL PROVISIONS 

Sec. 

220.1 Definitions. 

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

§ 220.1. Definitions. 

For purposes of this subchapter: 

An initial notice means the notice of 

a proceeding that accompanies a claim 

or counterclaim in a Copyright Claims 

Board proceeding as described in 17 

U.S.C. 1506(g). 

A second notice means the notice of 

a proceeding sent by the Copyright 

Claims Board as described in 17 U.S.C. 

1506(h). 

■ 4. Add part 222 read as follows: 

PART 222—PROCEEDINGS 

Sec. 

222.1 [Reserved] 

222.2 Initiating a proceeding; the claim. 

222.3 Content of initial notice to 

respondent. 

222.4 Second notice by or on behalf of the 

Board. 

222.5 Service; designated service agents. 

222.6 Waiver of service. 

222.7 Response. 

222.8 Counterclaim. 

222.9 Response to counterclaim. 

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

§ 222.1 [Reserved] 

§ 222.2 Initiating a proceeding; the claim. 

(a) Initiating a proceeding. A claimant 

may initiate a proceeding before the 

Copyright Claims Board by submitting 

the following information through the 

electronic filing system— 

(1) A claim, using a form provided on 

the Copyright Claims Board’s website; 

(2) A completed initial notice, using 

the form provided on the Copyright 

Claims Board’s website; and 

(3) The filing fee set forth in 37 CFR 

201.3. 

(b) Electronic filing requirement. 

Except as provided, otherwise in this 

paragraph, to submit the claim and 

filing fee, the claimant must be a 

registered user of the Board’s electronic 

filing system. A claimant who is unable 

to use the electronic filing system and 

submits the certification provided for in 

37 CFR 222.5(e)(2)(ii) may initiate a 

proceeding by using printed forms and 

alternate submission instructions 

provided by the Copyright Claims 

Board. 

(c) Contents of the claim. The claim 

shall include: 

(1) A caption, providing the name(s) 

of the claimant(s) and respondent(s); 

(2) Identification of the claims 

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; 

(3) The name(s) and address(es) of the 

claimant(s); 

(4) The name(s) and address(es) of the 

respondent(s); 

(5) For a claim asserted under 

paragraph (b)(2)(i) of this section— 

(i) Whether 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’s category, 

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

work at issue, or, if the claimant is 

unable to determine the applicable 

category, a brief description of the 

nature of the work. 

(iii) A statement describing the facts 

relating to the alleged infringement, 

including, to the extent known: 

(A) Which exclusive rights as set forth 

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

(B) The beginning date of the alleged 

infringement; 

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

organization(s) alleged to have infringed 

the work; 

(D) The facts leading the claimant to 

believe the work has been infringed; 

(E) Whether the alleged infringement 

has continued up to the date the claim 

was filed, or, if it has not, the date 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 


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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 

subsection 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; 

(6) For a claim asserted under 

paragraph (b)(2)(ii) of this section— 

(i) The name of the party who is 

asserting that the claimant has infringed 

a copyright; 

(ii) The following information for 

each work alleged to have been 

infringed, to the extent 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’s category, as set forth 

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 activity 

at issue in the claim, including: 

(A) Any exclusive rights as set forth 

in 17 U.S.C. 106 that may be implicated; 

(B) The beginning and ending dates of 

the activities at issue; 

(C) Whether the activities at issue 

have continued to the date the claim 

was filed; 

(D) The name(s) of the person(s) 

involved in the activities at issue; and 

(E) Where the activities at issue 

occurred; 

(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 any exceptions 

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

107 through 122 are implicated; 

(7) For a claim asserted under 

paragraph (b)(2)(iii) under 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; 

(iv) 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; and 

(D) A description of the counter 

notification; 

(v) The words in the notification or 

counter notification that allegedly 

constituted a misrepresentation; 

(vi) An explanation of why the 

identified words allegedly constituted a 

misrepresentation; and 

(vii) An explanation of how the 

alleged misrepresentation caused harm 

to the claimant(s); 

(8) A statement describing and 

estimating the monetary harm suffered 

by the claimant(s) as a result of the 

alleged activity. For claims of 

infringement, this statement may 

address the copyright owner’s actual 

damages and the profits received by 

respondent(s) that are attributable to the 

alleged infringement; 

(9) Whether the claimant requests that 

the proceeding be conducted as a 

‘‘smaller claim’’ under 17 U.S.C. 1506(z) 

and 37 CFR part 226, and would accept 

a limitation on total damages of $5,000 

if the request is granted; and 

(10) A certification under penalty of 

perjury that the information provided in 

the claim is accurate and truthful to the 

best of the certifying party’s knowledge. 

The certification shall include the 

typed, printed, or handwritten signature 

of the claimant(s), and if the signature 

is handwritten it shall be accompanied 

by a typed or printed name. 

(d) Additional matter. The claimant 

may also include, as attachments to or 

files accompanying the claim: 

(1) A copy of the certificate of 

copyright registration 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, 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, 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 claim. 

§ 222.3 Content of initial notice to 

respondent. 

(a) Content of initial notice. The 

initial notice to the respondent shall be 

prepared using a form made available by 

the Copyright Claims Board that shall— 

(1) Include on the first page a caption 

that identifies the parties and includes 

the docket number assigned by the 

Board; 

(2) Be addressed to the respondent; 

(3) Identify the claimant and provide 

a mailing address and other contact 

information for the claimant or, if the 

claimant is represented by counsel, the 

claimant’s counsel; 

(4) Advise the respondent that a legal 

proceeding 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 

notification of claimed infringement or 

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 will be 

dismissed without prejudice and the 

claimant will 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 will go forward and the 

respondent will— 

(i) Lose the opportunity 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) 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 the 

Board’s electronic filing system; 


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(10) Provide information on how to 

become a registered user of the Board’s 

electronic filing system; 

(11) State that parties may represent 

themselves in the proceeding, but note 

that a party may wish to consult with 

an attorney or with a law school clinic, 

and provide reference to pro bono (free) 

resources which may be available and 

are listed on the Board’s website; 

(12) Include the name, address, email 

address, and telephone number of the 

claimant(s) or, if a claimant is 

represented by counsel, of the 

claimant’s counsel; 

(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; 

and 

(15) Include any additional 

information that the Board may 

determine should be included. 

(b) Following notification from the 

Board pursuant to section 17 U.S.C. 

1506(f)(1)(A) to proceed with service of 

the claim, the respondent shall cause 

the initial notice, the claim, the paper 

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 37 CFR 

222.5(a) and 17 U.S.C. 1506(g). The 

copy of the claim that is served shall be 

the copy that is, at the time of service, 

available on the Board’s electronic filing 

system. 

§ 222.4 Second Notice by or on behalf of 

the Board. 

(a) Content of second notice. The 

second notice to the respondent shall: 

(1) Include on the first page a caption 

identifying the parties and the docket 

number; 

(2) Be addressed to the respondent, 

using the address that appeared in the 

initial notice; 

(3) Include the claimant identification 

and contact information from the initial 

notice; 

(4) Advise the respondent that a legal 

proceeding has been commenced by the 

claimant(s) in the Copyright Claims 

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) 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 will be 

dismissed without prejudice and the 

claimant will have to determine 

whether to file a lawsuit in a federal 

district court; 

(7) 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 will go forward and the 

respondent will— 

(i) Lose the opportunity 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; 

(8) Provide information on how to 

access the docket of the proceeding in 

the Board’s electronic filing system; 

(9) Provide information on how to 

become a registered user of the Board’s 

electronic filing system; 

(10) State that parties may represent 

themselves in the proceeding, but note 

that a party may wish to consult with 

an attorney or with a law school clinic, 

and provide reference to pro bono (free) 

resources which may be available and 

are listed on the Board’s website; 

(11) Include the name, address, email 

address, and telephone number of the 

claimant(s) or, if a claimant is 

represented by counsel, of the 

claimant’s counsel; 

(12) Indicate where other pertinent 

information concerning proceedings 

before the Board may be found on the 

Board’s website; 

(13) Provide direction on how a 

respondent may opt out of the 

proceeding, either by online or by mail; 

and 

(14) Include any additional 

information that the Board may 

determine should be included. 

(b) Timing of second notice. The 

Board shall issue the second notice in 

the manner prescribed by 37 CFR 222.5 

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; designated service 

agents. 

(a) Service of initial notice, claim, and 

related documents—(1) Timing of 

service. A claimant or counterclaimant 

may proceed with service of a claim or 

counterclaim only after the claim or 

counterclaim is reviewed by a Copyright 

Claims Officer and found to comply 

with this part and 17 U.S.C. chapter 15. 

(2) Service methods. Service of the 

initial notice, the claim, and other 

documents required by this part or the 

Copyright Claims 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. If service is made upon a 

service agent designated under 17 

U.S.C. 1506(g)(5)(B), service shall be 

made by certified mail or by any other 

method that the entity that has 

designated the service agent has stated, 

in its designation under § 222.5(b)(7), 

that it will accept. 

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

later than seven calendar days after 

service of the initial notice and all 

accompanying documents under 

paragraph (a)(2) of this section, a 

claimant shall file a completed proof of 

service form through the Board’s 

electronic filing system. 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 

(a)(1) 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). 

(b) Designated service agents. (1) A 

corporation, partnership, or 

unincorporated association that is 

entitled under 17 U.S.C. 1506(g)(5)(B) to 

designate a service agent to receive 

notice of a claim shall submit the 

designation electronically through the 

Copyright Claims Board’s designated 

service agent directory, which shall be 

available on the Board’s website. 

(2) A service agent designation shall 

be accompanied by the fee set forth in 

37 CFR 201.3. 

(3) Each corporation, partnership, or 

unincorporated association that submits 

a service agent designation may include 

up to five trade names that function as 

alternate business names (i.e., ‘‘doing 

business as’’ or ‘‘d/b/a’’ names) under 

which a registered corporation, 

partnership, or unincorporated 

association is doing business. Related or 

affiliated corporations, partnerships, or 

unincorporated associations that are 

separate legal entities (e.g., parent and 

subsidiary companies) must file 

separate service agent designations, 

although a submitter may designate the 

same service agent for multiple 


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corporations, partnerships, or 

unincorporated associations. 

(4) To complete the designation, the 

person submitting the designation will 

be required to make a certification, 

under penalty of perjury, that the 

submitter is authorized by law to make 

the designation on behalf of the 

corporation, partnership, or 

unincorporated association. 

(5) The designated service agent 

submission shall include: 

(i) The legal name, business address, 

email, and telephone number of the 

corporation, partnership, or 

unincorporated association; 

(ii) The principal place of business of 

the corporation, partnership, or 

unincorporated association; 

(iii) For corporations, the state of 

incorporation, any associated state file 

or registration number, and all other 

states in which the corporation is 

registered to do business; 

(iv) Up to five trade names of the 

corporation, partnership, or 

unincorporated association, as 

described by paragraph (b)(3) of this 

section; 

(v) The name, business address (or, if 

the agent does not have a business 

address, the address of the residence of), 

email, and telephone number of the 

designated service agent; 

(vi) The submitter’s name, email, and 

telephone number; and 

(vii) The corporation, partnership, or 

unincorporated association’s service 

method election, as described in 

paragraph (b)(7) of this section. 

(6) The designation shall be indexed 

under the names of each corporation, 

partnership, or unincorporated 

association for which an agent has been 

designated and shall be made available 

on the Board’s website. The business 

address, email, and telephone number 

of the corporation, partnership, or 

unincorporated association provided 

under paragraph (b)(5)(i) of this section 

will not be made publicly available on 

the designated service agent directory 

website, but such information will be 

made available to Board staff. 

(7)(i) A corporation, partnership, or 

unincorporated association that 

designates a service agent shall, as a 

condition of designating a service agent, 

consent to receive service upon the 

agent by means of certified mail. It may 

also indicate in its designation that it 

consents to receive service by email. 

(ii) If a corporation, partnership, or 

unincorporated association indicates 

that it consents to receive service by 

email, the designated service agent’s 

email address will be displayed on the 

designated service agent directory. 

(iii) In cases where the designation 

states that service may be made by 

email, the person submitting the 

designation shall affirm under penalty 

of perjury that the corporation, 

partnership, or unincorporated 

association for which the agent has been 

designated waives the right to personal 

service by means other than email and 

that the person making the designation 

has the authority to waive that right on 

behalf of the corporation, partnership, 

or unincorporated association. 

(iv) The corporation, partnership, or 

unincorporated association’s service 

agent’s place of business or, if there is 

no place of business, the address of the 

service agent’s residence, must be 

located within the United States. 

(8) A corporation, partnership, or 

unincorporated association may amend 

a designation of a service agent by 

following directions on the Board’s 

website. 

(i) Such amendment shall be 

accompanied by the fee set forth in 37 

CFR 201.3. 

(ii) The requirements found in 

paragraph (b) of this section shall apply 

to the service agent designation 

amendment. 

(9) After a corporation, partnership, or 

unincorporated association submits a 

service agent designation, such 

designation will be made available on 

the public designated service agent 

directory after payment has been 

remitted and the Board has reviewed the 

submission to determine whether the 

submission qualifies for the designated 

agent provision. The review may 

include confirmation that the 

submission was authorized. 

If the Board determines that a 

submitted service agent designation 

does not qualify under this section or if 

it has reason to believe that the 

submitter was not authorized by law to 

make the designation on behalf of the 

corporation, partnership, or 

unincorporated association, it will 

notify the submitter that it intends not 

to add the record to the directory, or 

that it intends to remove (or not 

approve) the record from the directory 

and will provide the submitter ten 

calendar days to respond. If the 

submitter fails to respond, or if, after 

reviewing the response, the Board 

determines that the submission does not 

qualify for the designated service agent 

directory, the entity will not be added 

to, or will be removed from, the 

directory. 

(c) Waiver of personal service. Waiver 

of personal service may be completed by 

following the procedures in 37 CFR 

222.6. 

(d) Service of other documents. All 

documents other than those identified 

in paragraph (a) of this section must be 

served in accordance with this 

paragraph. 

(1) Service by the Copyright Claims 

Board. 

(i) Except as provided in paragraph 

(d)(1)(ii) of this section, the Board shall 

serve one copy of all orders, notices, 

decisions, rulings on motions, and 

similar documents issued by the Board 

upon each party in accordance with 

paragraph (d)(3) of this section. 

(ii)(A) The Board shall serve the 

second notice required under 17 U.S.C. 

1506(h), along with a copy of the paper 

opt-out notification form, by sending 

them via certified mail to the 

respondent at the address provided— 

(1) In the designated service agent 

directory, if the respondent is a 

corporation, partnership, or 

unincorporated association that has 

designated a service agent; and 

otherwise 

(2) By the claimant in the claim. 

(B) 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. 

(2) Service by a party. Unless these 

regulations or the Board provides 

otherwise, each party to a proceeding 

shall serve on every other party each of 

the following documents in the manner 

prescribed in paragraph (d)(3) of this 

section: 

(i) Any document filed by the 

respondent other than an opt-out 

notification; 

(ii) Any document filed by the 

claimant following the service of the 

initial notice and the claim; 

(iii) A discovery document required to 

be served on a party; 

(iv) A party submission filed with the 

Board pursuant to 17 U.S.C. 1506(m); 

(v) A written notice of appearance or 

any similar document; and 

(vi) Any other document permitted to 

be filed by the Board. 

(3) Service of other documents: How 

made.—(i) Service on whom. 

(A) If a party is represented by an 

attorney or authorized representative, 

service under this rule must be made on 

the attorney or authorized 

representative unless the Board orders 

service on the party. 

(B) If a party is not represented, 

service under this rule must be made on 

the party. 

(ii) Service in general. (A) A 

document is served under this 

paragraph by sending it to a registered 

user by filing it with the Board’s 

electronic filing system or sending it by 


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other electronic means that the person 

to be served consented to in writing. For 

these service methods, 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. 

(B) A party who is not represented by 

counsel and who submits a certification 

pursuant to 37 CFR 222.5(e)(2)(ii) and 

serves that certification upon the other 

parties by one of the methods set forth 

in paragraphs (d)(1), (2), or (3) of this 

section may be excused from serving 

documents and receiving service of 

documents electronically by the means 

set forth in paragraph (d)(3)(ii)(A) of this 

section. Service of a document by or 

upon such a person shall be 

accomplished by— 

(1) Mailing it to the person’s last 

known address, in which event service 

is complete upon mailing it to the 

person; 

(2) Emailing it to the person, if the 

person has consented to receive service 

by email; 

(3) Handing it to the person; 

(4) Leaving it at the person’s office 

with a clerk or other person in charge 

or in a conspicuous place in the office; 

(5) Leaving it at the person’s dwelling 

or usual place of abode with someone of 

suitable age and discretion who resides 

there. 

(e) Filing—(1) Required filings and 

certificate of service. Other than service 

of the initial notice and claim, any 

document that is required to be served— 

together with a certificate of service in 

cases where a certificate of service is 

required—must be filed with the Board 

within a reasonable time after service, 

but no later than thirty days after service 

was completed. Notwithstanding the 

above, unless the Board orders 

otherwise, 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. 

(2) How filing is made—in general. (i) 

A document is filed by submitting it 

electronically to the Board’s electronic 

filing system. 

(ii) A party who is not represented by 

counsel may be excused from the 

requirements set forth in 37 CFR 

222.5(e)(1) by submitting a statement to 

the Board certifying under penalty of 

perjury that the party is unable to use 

the Board’s electronic filing system or 

that doing so would cause an undue 

hardship. The party must submit this 

statement on a form obtained from the 

Board. A party who submits such a 

statement may, file a document by— 

(A) Email, to an email address as 

directed by the Board; 

(B) Mail, by placing it in an envelope 

addressed to Copyright Claims Board, 

Library of Congress, James Madison 

Memorial Building, 101 Independence 

Avenue SE, Washington, DC 20559– 

6000 or P.O. Box 71380, Washington, 

DC 20024–1380, with postage prepaid, 

and depositing it with the United States 

Postal Service or major commercial 

carrier, such as UPS or FedEx, for 

delivery; 

(C) Hand delivery by a private party 

between the hours of 8:30 a.m. and 5:00 

p.m. to the Copyright Office Public 

Information Office, Room LM–401 in 

the James Madison Memorial Building 

of the Library of Congress, in an 

envelope addressed as follows: 

Copyright Claims Board, U.S. Copyright 

Office, Library of Congress, James 

Madison Memorial Building, 101 

Independence Avenue SE, Washington, 

DC 20559; or, 

(D) Hand delivery by a commercial 

courier (excluding FedEx, UPS, and 

similar courier services); the envelope 

must be delivered to the Congressional 

Courier Acceptance Site (CCAS) located 

at Second and D Street NE, Washington, 

DC, addressed as follows: Copyright 

Claims Board, Library of Congress, 

James Madison Memorial Building, 101 

Independence Avenue SE, Washington, 

DC 20559–6000. 

(3) Certificate of service. (i) Except as 

provided in paragraph (e)(2) of this 

section, every document filed with the 

Board and required to be served upon 

all parties must be accompanied by a 

certificate of service signed by (or on 

behalf of) the party making the service. 

(ii) For any filing that occurs after the 

filing of a response, no certificate of 

service is required when a document is 

served by filing it with the Copyright 

Claims Board’s electronic filing system. 

§ 222.6 Waiver of service. 

(a) Content of waiver of service 

request. The request for waiver of 

service form shall: 

(1) Bear the name of the Copyright 

Claims Board; 

(2) Include on the first page and 

waiver page the caption identifying the 

parties and the docket number; 

(3) Be addressed to the respondent; 

(4) Contain the date of the request; 

(5) Notify the respondent that a legal 

proceeding has been commenced by the 

claimant(s) in the Board against the 

Respondent; 

(6) Advise that the form is not a 

summons or official notice from the 

Board; 

(7) Request that respondent waive 

formal service of summons by signing 

the enclosed waiver; 

(8) State that a waiver of personal 

service shall not constitute a waiver of 

the right to opt out of the proceeding. 

(9) Describe the effect of agreeing or 

declining to waive service; 

(10) Include a waiver of personal 

service provided by the Board for 

respondent to sign that includes: 

(i) An affirmation that the respondent 

is waiving service; 

(ii) An affirmation that waiving 

service does affect respondent’s ability 

to opt out of the proceeding; 

(iii) An affirmation that respondent 

understands the requirement to opt out 

within 60 days of receiving the request; 

(iv) The name, address, email address, 

and telephone number of the 

respondent; and 

(v) The typed, printed, or handwritten 

signature of the respondent, and if the 

signature is handwritten it shall be 

accompanied by a typed or printed 

name. 

(b) 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: 

(1) A completed waiver of personal 

service form provided on the Board’s 

website; 

(2) The documents described in 37 

CFR 222.3, including the initial notice 

and the claim; and 

(3) An envelope, with postage prepaid 

and addressed to the claimant. 

(c) 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 affect respondent’s 

ability to opt out of proceedings. 

(d) Timing of completing waiver. The 

respondent has 30 days from the date on 

which the request was sent to return the 

waiver form. 

§ 222.7 Response. 

(a) Filing a response. A respondent 

who does not opt out within 60 days 

after receiving the initial notice shall 

begin participation before the Board by 

submitting a response through the 

electronic filing system using the 

response form provided by the Board, 

and serving the response form in the 

manner set forth in 37 CFR 222.5(d). 

Except as provided in this paragraph, to 

submit the response, the respondent 

must be a registered user of the 

electronic filing system. A respondent 

who is unable to use the electronic 


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filing system and submits the 

certification provided for in 37 CFR 

222.5(e)(2)(ii) may file a response by 

using printed forms and alternate 

submission instructions provided by the 

Board. 

(b) Content of response. The response 

shall include: 

(1) A caption identifying the parties 

and the docket number assigned by the 

Board; 

(2) The name, address, phone number, 

and email of each respondent filing the 

response; 

(3) A short statement, if applicable, 

disputing any facts asserted in the 

claim; 

(4) For claims 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 

Respondent believes there was no 

copyright infringement, including 

whether any exceptions and limitations 

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

that are implicated; 

(5) For 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 believes there was 

copyright infringement; 

(6) For claims 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 respondent 

believes the identified words do not 

constitute misrepresentation; 

(7) Any counterclaims; and 

(8) A certification under penalty of 

perjury that the information provided in 

the response is accurate and truthful to 

the best of the certifying party’s 

knowledge. The certification shall 

include the typed, printed, or 

handwritten signature of the 

respondent(s), and if the signature is 

handwritten it shall be accompanied by 

a typed or printed name. 

(c) Additional matter. The respondent 

may also include, as attachments to or 

files that accompany the Response: 

(1) A copy of the certificate of 

copyright registration 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, 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, 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) Timing of response. The 

respondent has 30 days from the 

issuance of the scheduling order to 

submit a response. If the respondent 

waived service, the respondent has an 

additional 30 days to submit the 

response. 

(e) Failure to file response. A failure 

to file a response within the required 

timeframe will constitute a default 

under 17 U.S.C. 1506(u), and the Board 

will begin proceedings in accordance 

with 37 CFR 227. 

§ 222.8 Counterclaim. 

(a) Asserting a counterclaim. Any 

party can assert a counterclaim falling 

under the jurisdiction of the Board 

that— 

(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 the electronic filing system 

using the response form or counterclaim 

form provided by the Board, and serving 

the counterclaim as provided in § 222.5. 

Except as otherwise provided in this 

paragraph, to submit the counterclaim, 

the respondent must be a registered user 

of the electronic filing system. A 

respondent who is unable to use the 

electronic filing system and submits the 

certification provided for in 37 CFR 

222.5(e)(2)(ii) may submit a 

counterclaim by using printed forms 

and alternate submission instructions 

provided by the Board. 

(c) Content of counterclaim. The 

counterclaim shall include: 

(1) The name of the party 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; 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. 

(3) For a counterclaim asserted under 

paragraph (b)(2)(i) of this section— 

(i) Whether 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 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 has 

been submitted but a registration has 

not yet issued, the service request 

number (SR number) and registration 

application date; and 

(E) The work’s 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 statement describing the facts 

relating to the alleged infringement, 

including, to the extent known: 

(A) Which exclusive rights as set forth 

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

(B) The beginning date of the alleged 

infringement; 

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

organization(s) alleged to have infringed 

the work; 

(D) The nature of the alleged 

infringement; 

(E) Whether the alleged infringement 

has continued up to the date the claim 

was filed, or, if it has not, the date 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 

subsection 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 counterclaim asserted under 

paragraph (b)(2)(ii) of this section— 

(i) The name of the party who is 

asserting that the counterclaimant has 

infringed a copyright; 

(ii) The following information for 

each work alleged to have been 


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infringed, if that information is known 

to the counterclaimant: 

(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’s category, as set forth 

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: 

(A) Any exclusive rights as set forth 

in 17 U.S.C. 106 that may be implicated; 

(B) The beginning and ending dates of 

the activities at issue; 

(C) Whether the activities at issue 

have continued to the date the claim 

was filed; 

(D) The name(s) of the person(s) 

involved in the activities at issue; 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 any exceptions and limitations 

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

are implicated; 

(5) For a counterclaim asserted under 

paragraph (b)(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; 

(iv) 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; and 

(D) A description of the counter 

notification; 

(v) The words in the notification or 

counter notification that allegedly 

constituted a misrepresentation; 

(vi) An explanation of why the 

identified words allegedly constituted a 

misrepresentation; and 

(vii) An explanation of how the 

alleged misrepresentation caused harm 

to the counterclaimant(s); 

(6) A statement describing the harm 

suffered by the counterclaimant(s) as a 

result of the alleged activity. For claims 

of infringement, this statement may 

include a description of the profits 

attributable to the alleged infringement 

received by the counterclaimant(s) 

against whom the counterclaim is 

asserted. 

(7) A statement describing the 

relationship between the initial claim 

and the counterclaim; and 

(8) A certification under penalty of 

perjury that the information provided in 

the counterclaim is accurate and 

truthful to the best of the certifying 

party’s knowledge. The certification 

shall include the typed, printed, or 

handwritten signature of the 

counterclaimant(s), and if the signature 

is handwritten it shall be accompanied 

by a typed or printed name. 

(d) Additional matter. The 

counterclaimant may also include, as 

attachments to or files that accompany 

the counterclaim: 

(1) A copy of the certificate of 

copyright registration 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, 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, 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 

at the time of the response unless the 

Board, for good cause, permits a 

counterclaim to be asserted at a 

subsequent time. 

§ 222.9 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 in 

accordance with 37 CFR part 224, a 

claimant against whom a counterclaim 

has been asserted (‘‘counterclaim 

respondent’’) shall serve a response to 

the counterclaim in the manner set forth 

in 37 CFR 222.5(d) and shall file the 

response to the counterclaim with the 

Board in the manner set forth in 37 CFR 

222.5(e). 

(b) Content of response to a 

counterclaim. The response to a 

counterclaim shall include: 

(1) A caption identifying the parties 

and the docket number; 

(2) The name, address, phone number, 

and email address of each counterclaim 

respondent filing the response; 

(3) A short statement, if applicable, 

disputing any facts asserted in the 

counterclaim; 

(4) 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; 

(5) 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; 

(6) 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 

(7) A certification under penalty of 

perjury that the information provided in 

the response to the counterclaim is 

accurate and truthful to the best of the 

certifying party’s knowledge. The 

certification shall include the typed, 

printed, or handwritten signature of the 

Counterclaim Respondent(s), and if the 

signature is handwritten it shall be 

accompanied by a typed or printed 

name. 

(c) Additional matter. The 

counterclaim respondent may also 

include, as attachments to or files that 

accompany the counterclaim response: 

(1) A copy of the certificate of 

copyright registration 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, 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, 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 


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(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 

required timeframe will constitute a 

default under 17 U.S.C. 1506(u), and the 

Board will begin proceedings in 

accordance with 37 CFR 227. 

PART 223—OPT-OUT PROVISIONS 

■ 5. The authority citation for part 223 

continues to read as follows: 

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

■ 6. Revise § 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 Board 

pursuant to 17 U.S.C. 1506(i) following 

the procedures set forth in this 

regulation. A respondent’s opt out will 

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; 

(i) The respondent’s name; 

(ii) The respondent’s address; 

(2) The respondent’s affirmation that 

the respondent will not appear before 

the Board with respect to the claim 

served by the claimant; 

(3) A certification under penalty of 

perjury that the individual completing 

the notification is the respondent 

identified in the claim served by the 

claimant; and 

(4) The typed, printed, or handwritten 

signature of the respondent, and if the 

signature is handwritten, it shall be 

accompanied by a typed or printed 

name. 

(c) Process of opting out. Upon being 

properly served with a notice and claim, 

a respondent may complete the opt-out 

process by— 

(1) Completing and submitting the 

online opt-out notification form 

identified in the initial notice and 

second notice and made available on the 

Board’s website. An online opt-out is 

not complete unless a confirmation code 

provided with the initial notice or 

second notice is included in the 

submission; or, 

(2) Completing the paper opt-out 

notification form included with the 

initial notice and second notice and 

delivering it to the Board, by one of the 

methods described in 37 CFR 

222.5(e)(ii)(A) through (D). 

(d) 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 completed by 

midnight 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. 

(e) One opt-out per respondent. In 

claims involving multiple respondents, 

each respondent who elects to opt out 

must separately complete the opt-out 

process. 

(f) Confirmation of opt-out. When a 

respondent has completed the opt-out 

process, the Board will notify all parties 

to the proceeding. 

(g) Effect of opt-out on refiled claims. 

If the claimant attempts to refile a claim 

against the same respondent(s), covering 

the same acts and the same theories of 

recovery after the respondent’s initial 

opt-out notification, the Board will 

apply the prior opt-out election and 

dismiss the claim. 

(h) Effect of opt-out on unrelated 

claims. The respondent’s opt-out for a 

particular claim will not be construed as 

an opt-out for claims involving different 

acts or different theories of recovery. 

■ 7. 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 Board, a 

Copyright Claims Attorney shall review 

the claim for compliance 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 will 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 

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(e); 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) 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 or of the allegations asserted or 

other statements made in the claim or 

counterclaim. 

(e) 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 

contradicted by information provided 

elsewhere in the materials or in the 

Board’s records. The Copyright Claims 

Attorney will 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 review of the claim 

under 37 CFR 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 Copyright Claims 

Board that the Board dismiss the claim 

and shall set forth the basis for that 

conclusion. 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Proposed Rules 53913 

(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 suggestion 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. 

Dated: September 15, 2021. 

Kevin R. Amer, 

Acting General Counsel and Associate 

Register of Copyrights. 

[FR Doc. 2021–20303 Filed 9–28–21; 8:45 am] 

BILLING CODE 1410–30–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 13 

RIN 2900–AR11 

Fiduciary Bond 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) proposes to amend its 

regulations that govern fiduciary 

activities. More specifically, the 

proposed amendments would revise 

specific procedures to exempt a VAappointed fiduciary who is also serving 

as a court-appointed fiduciary from 

posting multiple bonds and to also 

exempt a VA-appointed fiduciary that is 

also a State agency with existing, Statemandated liability insurance or a 

blanket bond from having to obtain an 

additional bond payable to the Secretary 

of Veterans Affairs. 

DATES: Comments must be received by 

VA on or before November 29, 2021. 

ADDRESSES: Comments may be 

submitted through 

www.Regulations.gov. Comments 

should indicate that they are submitted 

in response to RIN 2900–AR11— 

Fiduciary Bond. Comments received 

will be available at www.regulations.gov 

for public viewing, inspection or copies. 

FOR FURTHER INFORMATION CONTACT: 

David Klusman, Lead Program Analyst, 

Pension and Fiduciary Service (21PF), 

Veterans Benefits Administration, 

Department of Veterans Affairs, 810 

Vermont Ave. NW, Washington, DC 

20420; (202) 632–8863. (This is not a 

toll-free number). 

SUPPLEMENTARY INFORMATION: VA 

administers a fiduciary program for 

beneficiaries who, as a result of injury, 

disease, the infirmities of advanced age, 

or being less than 18 years of age, 

cannot manage their own VA benefits. 

Under this program, VA oversees these 

vulnerable beneficiaries, and appoints 

and oversees fiduciaries who manage 

these beneficiaries’ benefits. VA’s 

current statutory authority for this 

program is in 38 U.S.C. chapters 55 and 

61. 

VA is authorized to issue payments to 

and supervise fiduciaries acting on 

behalf of beneficiaries under 38 U.S.C. 

5502. In 2004, Congress amended 38 

U.S.C. chapters 55 and 61 to add new 

provisions which, among other things, 

authorize VA to conduct specific 

investigations regarding the fitness of 

individuals to serve as fiduciaries and 

reissue certain benefits misused by 

fiduciaries. In relevant part, the law 

provides that any certification of a 

person as a fiduciary shall be made on 

the basis of ‘‘the furnishing of any bond 

that may be required by the Secretary.’’ 

38 U.S.C. 5507(a)(3). On its face, this 

statutory language provides VA with 

authority to decide whether to require a 

bond. 

Under certain circumstances, if a 

fiduciary misuses benefits, the law 

requires that the Secretary pay the 

beneficiary an amount equal to the 

amount of benefits that were misused. 

38 U.S.C. 6107. In 2018, VA amended 

its fiduciary program regulations to 

implement current law. Fiduciary 

Activities, 83 FR 32716 (July 13, 2018). 

As stated above, in some cases, 

fiduciaries are required to obtain a 

surety bond in order to protect the 

beneficiaries’ benefits. However, there is 

conflicting information in VA 

regulations pertaining to bond 

requirements for fiduciaries. 

Specifically, 38 CFR 14.709 provides 

that VA’s general policy is to require a 

surety bond that follows State laws and 

court rules from a court-appointed 

individual fiduciary. Further, the 

regulation indicates approved 

alternative methods to a corporate 

surety bond and authorizes the 

acceptance of a lesser degree of 

protection of funds under certain 

circumstances. However, 38 CFR 

13.230, which was promulgated in 2018 

when VA amended its fiduciary 

program regulations, requires that any 

bond furnished by a fiduciary ‘‘[c]ontain 

a statement that the bond is payable to 

the Secretary of Veterans Affairs.’’ 38 

CFR 13.230(d)(3)(ii). VA’s final rule that 

amended 38 CFR part 13 went into 

effect on August 13, 2018. 83 FR 32716. 

When it was promulgated, VA explicitly 

stated that ‘‘[w]e intend to issue uniform 

rules for all VA-appointed fiduciaries, 

such as allowable fees, surety bond 

requirements and appropriate 

investments, to include fiduciaries who 

also serve as court-appointed guardians 

for beneficiaries.’’ Id. at 32727. The rule 

noted that ‘‘VA’s fiduciary regulations 

will result in a gradual discontinuance 

of the current practice of recognizing a 

court-appointed guardian or fiduciary 

for purposes of receiving VA benefits on 

behalf of a VA beneficiary’’ and that, 

‘‘VA will establish a national standard 

for appointing and overseeing 

fiduciaries.’’ Id. at 32735. VA noted in 

the final rule that, ‘‘[b]ased on our 

experience in administering the 

program, the risks of not requiring all 

fiduciaries, with the [general] exception 

of spouses, to furnish a surety bond 

significantly outweigh any burden on a 

prospective fiduciary.’’ Id. at 32727. VA 

set forth a number of factors that weigh 

in favor of requiring a bond: (1) It serves 

as a screening tool for VA to use in 

confirming qualification for 

appointment—in other words, if a 

fiduciary cannot obtain a bond because 

the bonding company considers the risk 

of fund exploitation too high, VA will 

not appoint the prospective fiduciary; 

(2) it is consistent with VA’s oversight 

obligations, which include deterring 

fiduciary misuse of benefits; and (3) it 

puts a fiduciary on notice that he or she 

is liable to a third party for any payment 

on the bond. Id. With the 2018 

amendment, VA also promulgated 

additional bond requirements under 

§ 13.230(d) in order to protect a 

beneficiary’s interests if a fiduciary 

misuses funds, including a requirement 

that the bond be payable to the 

Secretary. More recently, in January 

2021, Congress enacted Public Law 116– 

315, which amended 38 U.S.C. 6107(b), 

to require VA to reissue misused funds 

to all beneficiaries, regardless of 

whether VA negligence was involved. 

Under current § 13.410(c), VA must 

attempt to recoup any misused benefits, 

either from the surety company or, if no 

bond is in place, from the fiduciary 

directly. VA then must reissue any 

recouped benefits to the beneficiary’s 

fiduciary successor to the extent they 


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