[Federal Register Volume 87, Number 95 (Tuesday, May 17, 2022)]
[Rules and Regulations]
[Pages 30060-30092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10466]



[[Page 30059]]

Vol. 87

Tuesday,

No. 95

May 17, 2022

Part III





 Library of Congress





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U.S. Copyright Office





37 CFR Parts 201, 220, et al.





Copyright Claims Board: Active Proceedings and Evidence; Final Rule

Federal Register / Vol. 87 , No. 95 / Tuesday, May 17, 2022 / Rules 
and Regulations

[[Page 30060]]


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LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Parts 201, 220, 222, 224, 225, 226, 227, 228, 229, 230, 231, 
232, and 233

[Docket No. 2021-8]


Copyright Claims Board: Active Proceedings and Evidence

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Final rule; request for comments.

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SUMMARY: The U.S. Copyright Office is issuing a final rule establishing 
procedures governing active proceedings before the Copyright Claims 
Board and post-determination procedures. The final rule provides 
requirements regarding procedural practice, scheduling, conferences, 
discovery, written testimony, hearings, settlement, default and failure 
to prosecute, records, post-determination procedures, conduct of 
parties and limits on the number of claims that can be brought. The 
final rule also describes the procedures for ``smaller claims'' and 
solicits public comments on these regulations.

DATES: Effective June 16, 2022. Written comments must be received no 
later than 11:59 p.m. Eastern Time on November 14, 2022.

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's website 
at https://www.copyright.gov/rulemaking/case-act-implementation/active-proceedings/ proceedings/. If electronic submission of comments is not feasible due 
to lack of access to a computer or the internet, please contact the 
Copyright Office using the contact information below for special 
instructions.

FOR FURTHER INFORMATION CONTACT: Megan Efthimiadis, Assistant to the 
General Counsel, by email at <a href="/cdn-cgi/l/email-protection#1f727a796b5f7c706f666d7678776b31787069"><span class="__cf_email__" data-cfemail="caa7afacbe8aa9a5bab3b8a3ada2bee4ada5bc">[email protected]</span></a>, or by telephone at 
202-707-8350.

SUPPLEMENTARY INFORMATION:

I. Background

    The Copyright Alternative in Small-Claims Enforcement (``CASE'') 
Act of 2020 \1\ directs the Copyright Office (``Office'') to establish 
the Copyright Claims Board (``CCB''), an alternative forum to Federal 
court in which parties may seek resolution of copyright disputes that 
have a total monetary value of $30,000 or less.\2\ The CCB is designed 
to be accessible to pro se parties without formal legal training and 
others with little exposure to copyright law.\3\ The Office published a 
notification of inquiry (``NOI'') asking for public comments on the 
CCB's operations and procedures.\4\ A subsequent notice of proposed 
rulemaking (``NPRM'') proposed regulations to govern active proceedings 
before the CCB and post-determination review, including on the CCB's 
management of parties (i.e., joinder, dismissal, default, failure to 
prosecute, party conduct, and numerical limits on cases that parties 
may bring); management of proceedings (i.e., scheduling orders, 
amending pleadings, claim consolidation, settlement, hearings, 
``smaller'' claims, and records); evidence and discovery (i.e., written 
testimony, protective orders, interrogatories, requests for admission, 
document production, discovery disputes, and sanctions); and post-
determination rehearing and the Register's review.\5\
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    \1\ Public Law 116-260, sec. 212, 134 Stat. 1182, 2176 (2020).
    \2\ See, 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 (2013), https://www.copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf (``Copyright Small 
Claims''). 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.
    \3\ See, e.g., H.R. Rep. No. 116-252, at 18-20; S. Rep. No. 116-
105, at 7-8.
    \4\ 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.
    \5\ 86 FR 69890 (Dec. 8, 2021). The Office has also published 
separate notices and final rules implementing other aspects of the 
CASE Act. 86 FR 21990 (Apr. 26, 2021) (proposing regulations for 
expedited copyright registrations of works at issue in CCB 
proceedings, and a Freedom of Information Act (``FOIA'')-conforming 
amendment); 86 FR 49273 (Sept. 2, 2021) (proposing regulations for 
libraries and archives to opt out of CCB proceedings, and for 
parties to opt out of related class actions); 86 FR 53897 (Sept. 29, 
2021) (proposing regulations regarding initial stages of CCB 
proceedings); 86 FR 74394 (Dec. 30, 2021) (proposing regulations 
regarding party representation by law students and representation of 
business entities); 86 FR 46119 (Aug. 18, 2021) (final rule 
concerning expedited registration and technical update to FOIA 
regulations); 87 FR 12861 (Mar. 8, 2022) (partial final rule 
establishing regulations for designating agents for service of 
process); 87 FR 13171 (Mar. 9, 2022) (final rule establishing 
regulations concerning library and archives opt-outs and class 
actions); 87 FR 16989 (Mar. 25, 2022) (final rule establishing 
regulations for initiating proceedings and related procedures).
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    This final rule marks the completion of all regulations required 
for the CCB to begin operations, but the Office expects to exercise its 
regulatory authority to promulgate additional CASE Act regulations 
going forward as it deems necessary. As noted in its CASE Act NOI, the 
Office has deferred exercising its regulatory authority on certain 
topics until a later date.\6\ For topics that the Office has already 
addressed by regulation, it will be monitoring how those regulations 
are functioning as the CCB starts hearing claims, including, for 
example: Whether the limitations on proceedings should be adjusted; 
whether the discovery regulations strike the right balance between 
allowing necessary access to information and being too burdensome; and 
whether hearing attendance limitations should be eased. Further, as 
with its other services,\7\ the Office will periodically review and 
potentially adjust any CASE Act-related fees. Additionally, the CASE 
Act requires the Office to conduct a future study on the CCB's 
operations,\8\ which will likely prompt additional discussions 
regarding both regulatory and legislative changes. Finally, as further 
discussed below, the Office is soliciting additional public comments on 
its final regulations governing ``smaller claims.''
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    \6\ 86 FR 16156, 16165.
    \7\ See, e.g., 85 FR 9374 (Feb. 19, 2020) (final rule 
establishing adjusted fees for services).
    \8\ Public Law 116-260, sec. 212(d), 134 Stat. at 2199-2200.
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    The Copyright Alliance et al. urged the Office to ``consider 
adopting the CASE Act implementing regulations on an interim basis at 
this stage'' and postpone issuing final rules, or plan to publish 
another notice of inquiry seeking public comment on the efficacy of the 
rules after a year.\9\ While the Office declines to follow this 
suggestion, it understands the desire to provide additional feedback on 
whether the regulations are functioning as intended. The Office 
therefore encourages the public to provide any feedback regarding the 
CASE Act's regulations and operations at any time via the Office's ex 
parte meeting process,\10\ so that the Office has the opportunity to 
promptly address any unforeseen issues.
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    \9\ Copyright Alliance et al. Initial Comments at 9.
    \10\ Guidelines for ex parte meetings are available at https://www.copyright.gov/about/small-claims/related-rulemakings.html.

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[[Page 30061]]

II. Discussion of Final Rule

A. Overview

    The CASE Act's 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\ 
Congress acknowledged that ``federal court is effectively inaccessible 
to copyright owners seeking redress for claims of relatively low 
economic value, especially individual creators of limited resources,'' 
\12\ and sought to ensure ``that copyright interests without high 
expected damages have some mode of enforceability.'' \13\ The Office 
anticipates that many CCB parties will appear pro se (i.e., without an 
attorney). In establishing the procedures to govern CCB proceedings, 
the Office is always guided by the CASE Act's goal to improve access to 
justice in copyright disputes by providing a simpler, yet fair 
alternative to Federal litigation.
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    \11\ H.R. Rep. No. 116-252, at 17; see also S. Rep. No. 116-105, 
at 9-10.
    \12\ H.R. Rep. No. 116-252, at 19 (quoting Copyright Small 
Claims at 8).
    \13\ Id.
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    In response to the NPRM, the Office received comments that 
articulated specific suggestions on CCB practices and procedures.\14\ 
Commenters urged the Office to strike a proper balance between two 
vital goals: Minimizing the complexities of Federal litigation practice 
that can deter parties from bringing and defending copyright claims, 
while establishing procedural safeguards so that each participant can 
fairly develop and prosecute or defend its case.\15\ Some commenters 
voiced concerns that the proposed regulations might be both too complex 
in certain respects \16\ and too vague in others,\17\ either of which 
could create problems, particularly for pro se parties. As a result, 
the proposed regulations could put pro se parties at a disadvantage in 
proceedings against more sophisticated parties or representatives. The 
Office carefully reviewed the proposed rules with these comments in 
mind. As a result, the Office has made amendments to simplify the 
regulatory language while ensuring that sufficient procedural 
safeguards are in place to protect all parties.\18\
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    \14\ Comments in response to the NPRM are available at https://www.regulations.gov/document/COLC-2021-0007-0001/comment. References 
to comments responding to the NPRM are by party name (abbreviated 
where appropriate), followed by ``Initial NPRM Comments'' or ``Reply 
NPRM Comments,'' as appropriate.
    \15\ Amazon.com, Inc. (``Amazon'') Initial NPRM Comments at 2; 
Engine Initial NPRM Comments at 2.
    \16\ Authors Guild Initial NPRM Comments at 1-2; Anonymous I 
Initial NPRM Comments at 1; Anonymous II Initial NPRM Comments at 1; 
Copyright Alliance et al. Initial NPRM Comments at 8; H Smith 
Initial NPRM Comments; Engine Initial NPRM Comments at 5; Motion 
Picture Assoc., Inc. (``MPA'') & Recording Industry Assoc. of Am., 
Inc. (``RIAA'') Initial NPRM Comments at 2-3; Music Creators of N. 
Am. Reply NPRM Comments at 3; Science Fiction & Fantasy Writers of 
Am., Inc. (``SFWA'') Reply NPRM Comments at 2.
    \17\ Engine Initial NPRM Comments at 2, 5-6, 7-8; Public 
Knowledge Initial NPRM Comments at 3; Southlaw Ent. Initial NPRM 
Comments; Verizon Initial NPRM Comments at 1-2; SFWA Reply NPRM 
Comments at 2-5.
    \18\ See Authors Guild Initial NPRM Comments at 2.
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    Some commenters cautioned that the Office should minimize 
complexity not only in the regulatory language but also in the 
substance of the rules. The Copyright Alliance et al. contended that 
``the primary problem is not that the language used in the regulations 
is complex, but rather that the procedures set forth in the regulations 
are extremely complex.'' \19\ Similarly, the MPA and RIAA jointly 
commented that ``[c]omplex rules and procedures, and extensive 
discovery, are simply not necessary or appropriate for the type of 
cases that will be litigated in CCB, where the universe of relevant 
documents and information will typically be quite limited.'' \20\ Some 
individuals expressed concern that the complexity of the proposed 
regulations is contrary to the intended purpose of the CCB \21\ and may 
foreclose their ability to utilize it.\22\ These commenters urged the 
Office to simplify the process so that it is more accessible to 
individuals.\23\ The Authors Guild ``emphasize[d] the importance of 
keeping the CCB process simple and easily navigable for individual 
creators who often make a living juggling several jobs and lack the 
knowledge or resources to manage the demands of a complicated legal 
process,'' and feared that the ``proposed rule's complexity and the use 
of legalese undermines the very purpose of the CCB and will deter pro 
se parties from using the CCB.'' \24\
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    \19\ Copyright Alliance et al. Reply NPRM Comments at 7.
    \20\ MPA & RIAA Initial NPRM Comments at 3.
    \21\ H. Smith Initial NPRM Comments at 1; Anonymous I Initial 
NPRM Comments at 1.
    \22\ H. Smith Initial NPRM Comments at 1; Anonymous I Initial 
NPRM Comments at 1; Anonymous II Initial NPRM Comments at 1.
    \23\ H. Smith Initial NPRM Comments at 1; Anonymous I Initial 
NPRM Comments at 1; Anonymous II Initial NPRM Comments at 1.
    \24\ Authors Guild Initial NPRM Comments at 1.
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    The Office has addressed these concerns in the final rule, where 
possible. Some proposed procedures were simplified or eliminated, and 
the Office has revised the proposed rules in several respects to reduce 
the parties' procedural and knowledge burdens, as discussed below. 
However, CASE Act proceedings will still require sufficient information 
and evidence sharing to ensure just determinations. Proof in copyright 
cases is typically fact-dependent.\25\ Because the proceedings must be 
fundamentally fair to both claimants and respondents, all parties must 
have a reasonable opportunity to develop and submit the facts bearing 
on their claims and defenses. To provide a fair opportunity for 
presentation of the evidence, the procedures must allow for some degree 
of complexity in those situations where complexity is inherent in the 
factual context. Commenters also raised concerns about procedural 
complexities outside of the discovery process.\26\ The Office has 
sought to further streamline and simplify procedural requirements 
throughout the proceedings where appropriate, while seeking to ensure 
that the procedures will be fair to all parties and address the various 
situations that may occur.
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    \25\ See, e.g., Three Boys Music Corp. v. Bolton, 212 F.3d 477, 
481 (9th Cir. 2000) (``Absent direct evidence of copying, proof of 
infringement involves fact-based showings that the defendant had 
`access' to the plaintiff's work and that the two works are 
`substantially similar.' '') (quoting Smith v. Jackson, 84 F.3d 
1213, 1218 (9th Cir. 1996)); Peter Pan Fabrics, Inc. v. Martin 
Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960) (``The test for 
infringement of a copyright is of necessity vague. . . . Decisions 
must . . . inevitably be ad hoc.'').
    \26\ E.g., Authors Guild Initial NPRM Comments at 3 (commenting 
that allowing third-party intervention ``could add an additional 
level of complication that a pro se party likely will not have the 
legal knowledge or wherewithal to address in a response''); id. at 4 
(noting the Office should ``consider simplifying these rules 
[related to sanctions]''); Copyright Alliance et al. Initial NPRM 
Comments at 9 (encouraging the Office to ``focus on ways to scale 
back on the requirements''); MPA & RIAA Initial NPRM Comments at 4-5 
(``The NPRM's proposed rules for smaller claims are much too complex 
and allow much too much discovery''; proposing a smaller-claims 
system with ``no discovery or motion practice permitted'').
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    While most claims heard by the CCB will likely be fairly 
straightforward, the Office also must anticipate less straightforward 
claims and has promulgated regulations to accommodate both types. Even 
commenters asking for simpler rules recognized that certain 
circumstances would require more detailed regulations.\27\
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    \27\ E.g., Copyright Alliance et al. Initial NPRM Comments at 19 
(proposing new requirement that parties certify, after a proceeding 
is over, their return or disposal of any discovery material received 
from other parties); id. at 20 (urging the Office to add a provision 
giving parties an opportunity to object before CCB removes 
confidentiality designation from any material); id. at 23 (proposing 
that the Office add a procedure allowing parties to seek leave to 
submit additional testimony or evidence after a hearing on the 
merits); Copyright Alliance et al. Reply NPRM Comments at 8 (``We . 
. . strongly urge the Office to simplify the procedures proposed in 
the NPRM''); SFWA Reply NPRM Comments at 2 (commenting that ``many 
writers and other creators will almost certainly be bewildered by 
the CCB's rules and procedures''); id. at 6 (proposing that 
standardized interrogatories and document requests should be 
tailored ``for different media, formats, and kinds of publication. 
For example, publication has different meanings for different 
media.'').

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[[Page 30062]]

    In addition to the regulations themselves, the Office intends to 
take many steps to help parties manage the process with or without 
legal counsel. A CCB Handbook, which will be available on the CCB.gov 
website and written in easy-to-understand language, will be a primary 
resource for parties navigating all aspects of CCB proceedings. The CCB 
Handbook was described in the NPRM and the Office received no comments 
critical of the proposal. The Authors Guild urged the Office to 
``invest heavily in developing a clear and easy to use handbook,'' 
which ``should spell out in plain language all the procedures that a 
party would need to follow to bring or defend a claim in the CCB, so 
that parties to proceedings can refer just to the handbook without 
having to look up and understand the regulations.'' \28\ While the 
statute and regulations govern CCB proceedings as a legal matter, the 
Authors Guild's comment accurately sums up the Office's guiding purpose 
in developing a CCB Handbook that can serve as a more convenient guide 
for all parties.\29\ The CCB Handbook will be updated, as needed, based 
on interested parties' feedback.\30\ And as the regulations note, it 
will not override any existing statute or regulation.
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    \28\ Authors Guild Initial NPRM Comments at 2; see also 
Copyright Alliance et al. Initial NPRM Comments at 9-10 (urging 
Office to ``create a handbook for parties that is significantly less 
complex than the regulations, easy to understand, and easy to 
follow'').
    \29\ See also Copyright Alliance et al. Reply NPRM Comments at 7 
(anticipating the Handbook ``will be an invaluable tool for pro se 
parties'').
    \30\ See Authors Guild Initial NPRM Comments at 2 (recommending 
that the Handbook be developed with input from stakeholders who 
represent potential parties before the CCB).
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    Additional information on CCB.gov will provide details about each 
stage of a CCB proceeding. In addition, a user-friendly electronic 
filing system (``eCCB'') will simplify filings by walking the parties 
through each step of the claim, response, and counterclaim process, 
with prompts to help them fully present their positions, and by 
providing fillable forms for situations that may arise throughout the 
proceeding. Copyright Claims Attorneys and other CCB staff will be 
available to further guide parties through any difficulties that they 
encounter.

B. Management of Parties

1. Joinder and Intervention
    The CASE Act requires dismissal of a claim for the failure to join 
a necessary party.\31\ The NPRM proposed a process for parties to bring 
the failure to join a necessary party to the CCB's attention and for 
non-parties to seek to intervene in the claim.\32\ Except as noted 
below, the final rule makes no substantive revisions to what was 
proposed.
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    \31\ 17 U.S.C. 1506(f)(3)(A).
    \32\ 86 FR 69890, 69906 (proposed 37 CFR 222.13(a)-(b)).
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    The Authors Guild commented that requests for joinder, 
consolidation, and intervention could be too complicated for pro se 
parties to address.\33\ It opposed allowing intervention by third 
parties and suggested that, if a necessary party seeks to join a 
proceeding, ``the CCB should simply schedule a conference to advise the 
parties that a third party has requested to join, explain the 
consequences of a joinder, and get both parties' consent before 
allowing the joinder.'' \34\
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    \33\ Authors Guild Initial NPRM Comments at 2-3.
    \34\ Id. at 3.
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    The Office recognizes that concepts of joinder and necessary 
parties, as well as intervention, may be difficult for pro se parties 
to understand. The final rule simplifies the procedure for resolving a 
request to intervene by having such requests and any response filed via 
a simple form on eCCB. The CCB then may hold a conference to discuss 
the proposed intervention with the parties to the proceeding and the 
party seeking to intervene. If the party requesting intervention is 
found to be a ``necessary'' party, the claims will be dismissed if the 
parties do not consent to its addition or intervention.
2. Voluntary Withdrawal and Dismissal
    Parties may voluntarily dismiss their own claims or counterclaims 
without prejudice before a response is filed.\35\ Under the final rule, 
a claim or counterclaim cannot be voluntarily dismissed after a 
response, but the claimant or counterclaimant may request to withdraw 
the claim and the CCB will have discretion, with input from the 
parties, to dismiss the claim with or without prejudice. Factors to be 
considered by the CCB in exercising its discretion include the point in 
the proceedings at which the dismissal is requested and whether 
dismissal without prejudice is in the interests of justice.\36\ Several 
commenters expressed support for the proposed rule, which provided for 
this discretion.\37\ The Authors Guild suggested that ``[t]he proposed 
Handbook should explain what `with prejudice' and `without prejudice' 
mean in plain English.'' \38\ The Office agrees, and will include such 
explanations in the CCB Handbook.
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    \35\ 17 U.S.C. 1506(q)(1)-(2).
    \36\ 86 FR 69890, 69907 (proposed 37 CFR 222.16(b)). While the 
concept of ``the interests of justice'' is subjective and will vary 
based upon the circumstances of a particular request to withdraw a 
claim, the Office does not understand the term to include withdrawal 
of a claim because a claimant wishes to seek higher damages in 
Federal court after discovery has been completed in a CCB 
proceeding.
    \37\ See Sergey Vernyuk Initial NPRM Comments at 1 (``I agree 
with this approach because it avoids harassment where a claimant 
files a claim and then dismisses it once a defense is mounted, only 
to reassert it later.''); Am. Intell. Prop. L. Assoc. (``AIPLA'') 
Initial NPRM Comments at 1-2 (``Post-response voluntary dismissals 
should generally be with prejudice, to protect the interests of 
respondents and reduce the chance of abuse or gamesmanship. . . . 
[But] the CCB should retain discretion to permit voluntary dismissal 
without prejudice where it is in the interests of justice.''); SFWA 
Reply NPRM Comments at 2 (``SFWA supports the amount of 
discretionary judgment accorded to the CCB, particularly with regard 
to granting dismissals without prejudice.'').
    \38\ Authors Guild Initial NPRM Comments at 3.
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3. Default and Failure To Prosecute
a. Default Determinations
    The CASE Act provides that the CCB may enter a default 
determination if ``the respondent has failed to appear or has ceased 
participating in the proceeding.'' \39\ Under the proposed rule, 
respondents that do not respond to CCB deadlines will receive an 
opportunity to cure the first two times they miss a deadline without 
cause. After the third missed deadline, the CCB may proceed to a 
default judgment in its discretion without giving an opportunity to 
cure. This rule is designed to prevent respondents from taking 
advantage of the CCB proceedings to obtain what would amount to 
unlimited extensions of deadlines without seeking permission. Several 
commenters ``commend[ed] the Office for developing a default procedure 
that balances the interests of the parties.'' \40\ Commenters took 
different views about the CCB's discretion to commence default 
proceedings without providing the respondent another missed-deadline 
warning after a third missed deadline, and whether the CCB could 
consider defenses sua sponte on behalf of defaulted respondents, as 
discussed below.
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    \39\ 17 U.S.C. 1506(u).
    \40\ AIPLA Initial NPRM Comments at 2; see also Sergey Vernyuk 
Initial NPRM Comments at 1; Engine Initial NPRM Comments at 3; SFWA 
Reply NPRM Comments at 2.
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    Public Knowledge disapproved of the provision authorizing the CCB 
to begin default proceedings at its discretion

[[Page 30063]]

without further warning notices after a respondent misses three 
deadlines without good cause.\41\ Copyright Alliance et al. disagreed 
with Public Knowledge and approved of the proposed rule, commenting 
that the CCB ``has to draw the line at some point and cannot continue 
to reward a party that makes a practice of ignoring deadlines with 
extension after extension.'' \42\ As the Office explained in the NPRM, 
``[t]his provision is aimed at encouraging timely participation and 
preventing respondents from repeatedly using the default provisions as 
a backdoor extension for deadlines.'' \43\ The final regulation spells 
out in greater detail the procedural steps leading up to a default 
determination and the steps taken after a request to vacate a default 
determination.
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    \41\ Public Knowledge Initial NPRM Comments at 3-4; see 86 FR 
69890, 69913 (proposed 37 CFR 227.1(d)).
    \42\ Copyright Alliance et al. Reply NPRM Comments at 10.
    \43\ 86 FR 69890, 69892.
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    Public Knowledge also argued that the CCB should not ``allow 
default judgments based merely on Claimant testimony,'' which it 
contended would be ``without any substantive evidence to support the 
claim,'' and with ``no opposing party to refute their testimony.'' \44\ 
Yet as Copyright Alliance et al. noted in reply, testimony is 
evidence.\45\ When a respondent fails to appear after multiple notices, 
or ceases to participate by missing multiple deadlines, the statute 
states that the CCB ``shall require the claimant to submit relevant 
evidence and other information in support of the claimant's claim and 
any asserted damages'' and determine whether that evidence supports a 
finding of default.\46\ Public Knowledge's position would leave the CCB 
powerless to fulfill that statutory authority. The implementing 
regulations provide extensive safeguards against defaults and give a 
respondent the opportunity to oppose the claimant's testimony upon 
default.
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    \44\ Public Knowledge Initial NPRM Comments at 4-5.
    \45\ Copyright Alliance et al. Reply NPRM Comments at 11 (citing 
proposed 37 CFR 227.2, 222.14(b)).
    \46\ 17 U.S.C. 1506(u)(1).
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    Engine suggested that the Office should ``require the CCB to 
consider common defenses (such as noninfringement, innocent 
infringement, fair use, and licensure) sua sponte in each case, 
including before entering a default judgment and awarding damages.'' 
\47\ In the default context, that comment is broadly consistent with 
the proposed rule that ``the Board shall consider whether the 
respondent has a meritorious defense.'' \48\ In contrast, Copyright 
Alliance et al. urged the CCB to refrain from invoking any defenses on 
behalf of defaulted respondents, stating, ``the Office must recognize a 
clear distinction between permitting CCAs [Copyright Claims Attorneys] 
to assist parties in properly articulating their own legal arguments 
versus allowing the Board or the CCAs to provide legal advice to the 
parties or invoke arguments and defenses on their behalf, essentially 
becoming advocates for one party.'' \49\ Copyright Alliance et al. 
further contended that the CASE Act provision regarding defaults ``does 
not include raising a defense that has not been properly raised by a 
respondent.'' \50\ However, the statute is not so absolute. Moreover, 
Federal courts are permitted to deny judgments in a plaintiff's favor 
on default when a meritorious defense is present,\51\ and the 
legislative history indicates that the CCB ``has both more statutory 
authority and a greater obligation to scrutinize the merits of a 
claim'' \52\ when default is sought. ``In cases where the respondent is 
absent, the Board is expected to carefully scrutinize the available 
evidence . . . and consider applicable affirmative defenses such as 
fair use, where warranted by the circumstances of the case.'' \53\ 
Furthermore, the statute requires that the CCB only issue relief after 
a default if the claimant's submissions ``are sufficient to support a 
finding in favor of the claimant under applicable law.'' \54\ By 
definition, if there is a clear defense to the case on the face of the 
submissions, there cannot be evidence sufficient to support a finding 
for the claimant. The Office is mindful that the CCB must maintain 
impartiality, as Copyright Alliance et al. insists,\55\ but that does 
not preclude it from requiring claimants to show that their claims can 
withstand relevant defenses present on the face of the claims. AIPLA 
proposed that, if the CCB determines that a defaulting respondent has a 
meritorious defense, the rules should permit the claimant to submit 
evidence relevant to the defense.\56\ The Office has implemented this 
suggestion and, under the final rule, before the CCB finds for a 
defaulting respondent, it will provide the claimant with a tentative 
ruling and an opportunity to address it, including through the 
submission of further evidence.
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    \47\ Engine Initial NPRM Comments at 4.
    \48\ 86 FR 69890, 69913 (proposed 37 CFR 227.3(a)).
    \49\ Copyright Alliance et al. Reply NPRM Comments at 9; see 
also MPA & RIAA Initial NPRM Comments at 8-9.
    \50\ Copyright Alliance et al. Reply NPRM Comments at 9-10 
(discussing 17 U.S.C. 1506(u)).
    \51\ See, e.g., Gunnells v. Teutul, 392 F. Supp. 3d 451, 453-54 
(S.D.N.Y. 2019) (noting that courts should look at whether there is 
a ``meritorious defense'' before granting default judgment and 
deciding that copyright claims appeared to be outside the statute of 
limitations); Pierson v. Gamer World News Entm't, Inc., Case No. CV 
18-10137-CJC (KSxx), 2019 WL 8064255, *3-4 (C.D. Cal. Sept. 20, 
2019) (denying default judgment and ordering plaintiff to show cause 
why copyright infringement claim should not be dismissed based on 
the doctrine of fair use).
    \52\ H.R. Rep. No. 116-252, at 24.
    \53\ Id. at 24-25.
    \54\ 17 U.S.C. 1506(u)(1).
    \55\ Copyright Alliance et al. Initial NPRM Comments at 14.
    \56\ AIPLA Initial NPRM Comments at 2 (discussing proposed 37 
CFR 222.7(3)(a)); see 86 FR 69890, 69913.
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b. Failure To Prosecute
    The Copyright Alliance et al. observed that the proposed 
regulations allow respondents to cure default after ``multiple missed 
deadlines,'' but have no equivalent provision for claimants to cure a 
failure to prosecute.\57\ The Office agrees that a similar procedure 
should be included for a claimant's failure to prosecute and has added 
this to the final rule.
---------------------------------------------------------------------------

    \57\ Copyright Alliance et al. Initial NPRM Comments at 16 
(discussing proposed 37 CFR 227.1(d), 228.2); see 86 FR 69890, 
69913-14.
---------------------------------------------------------------------------

4. Bad-Faith Conduct
    Parties and their representatives appearing before the CCB who 
engage in bad-faith conduct may be required to pay an award of 
reasonable costs and attorney's fees.\58\ Upon repeated bad-faith acts 
in CCB proceedings, parties and their representatives may be barred 
from participating in further proceedings for a year and have pending 
proceedings dismissed.\59\ The proposed rule set forth procedures for 
the CCB to address bad faith sua sponte or upon a party's allegations, 
providing opportunities for the accused to respond in writing and at a 
conference. Commenters supported the proposed regulation on bad-faith 
conduct. For instance, ``SFWA strongly supports the [Office's] proposed 
rules in section 232.3, which go a considerable way to protecting 
writers and legitimate publishers from being preyed upon by 
unscrupulous copyright trolls who file meritless claims and 
counterclaims falsely asserting that they represent the true owner of 
the copyright.'' \60\ Several commenters specifically approved the 
provision allowing the CCB to temporarily bar those who repeatedly

[[Page 30064]]

act in bad faith from participating in further proceedings.\61\
---------------------------------------------------------------------------

    \58\ 17 U.S.C. 1506(y)(2).
    \59\ Id. at 1506(y)(3).
    \60\ SFWA Reply NPRM Comments at 2-3; see also Verizon Initial 
NPRM Comments at 1 (``We commend the Office for their commitment to 
prevent abuse.'').
    \61\ Copyright Alliance et al. Initial NPRM Comments at 17-18 
(``This is an important mechanism for protecting claimants and 
respondents from attorneys whose previous history of bad-faith 
conduct might put them in jeopardy.''); Amazon Initial NPRM Comments 
at 3 (``Amazon supports the Proposed Rule. In particular, Amazon 
believes the Office's suggestion for a historical review of the 
accused party's past legal claims is crucial.''); SFWA Reply NPRM 
Comments at 3 (``SFWA also agrees with AIPLA on the proposal to bar 
attorneys who have engaged in bad-faith conduct from representing 
parties before the CCB for the specified time periods.''); see 86 FR 
69890, 69916-17 (proposed 37 CFR 232.4).
---------------------------------------------------------------------------

    The Copyright Alliance et al. proposed that the definition of 
``bad-faith conduct'' should be explicit that it encompasses any action 
taken in support of a claim, counterclaim, or defense.\62\ The Office 
adopts this suggestion in the final rule. The Office also adopts 
Copyright Alliance et al.'s proposal to add the term ``before the CCB'' 
to the final rule, to make clear that its penalties apply to those who 
repeatedly act in bad faith before the CCB, and not necessarily 
elsewhere.\63\ The Office also agrees with, and adopts, the Copyright 
Alliance et al.'s suggestion to clarify in the final rule that the 
penalties for repeated acts of bad faith may include a bar to not only 
``initiating proceedings,'' but also ``participating'' in any 
capacity.\64\
---------------------------------------------------------------------------

    \62\ Copyright Alliance et al. Initial NPRM Comments at 16; see 
also SFWA Reply NPRM Comments at 3 (approving Copyright Alliance et 
al.'s proposed definition of bad-faith conduct); see, e.g., Engine 
Initial NPRM Comments at 8 (``[I]t is important to recognize that a 
substantial portion of abusive intellectual property assertion 
occurs through demand letters that are sent before any complaint is 
filed.'').
    \63\ Copyright Alliance et al. Initial NPRM Comments at 18; see 
86 FR 69890, 69916 (proposed 37 CFR 232.4(a)).
    \64\ Copyright Alliance et al. Initial NPRM Comments at 18; see 
86 FR 69890, 69916 (proposed 37 CFR 232.4(d)).
---------------------------------------------------------------------------

    The Copyright Alliance et al. also commented that ``the regulations 
should clearly articulate what is necessary to constitute a showing of 
bad-faith conduct.'' \65\ The Office does not consider the suggestion 
practical, as it cannot now anticipate every form in which misconduct 
may manifest itself in a CCB proceeding, and the CCB's ability to 
respond to such misconduct should be in its discretion.\66\ Instead, 
the CCB Handbook will provide illustrative examples of bad-faith 
conduct to help participants avoid such conduct.
---------------------------------------------------------------------------

    \65\ Copyright Alliance et al. Initial NPRM Comments at 17.
    \66\ See generally Verizon Initial NPRM Comments at 1 
(anticipating that participants ``will inevitably seek creative ways 
to abuse the CCB processes'').
---------------------------------------------------------------------------

    The Copyright Alliance et al. urged that ``anyone accused of bad-
faith conduct before the CCB should be notified of such accusation and 
given an opportunity to explain and defend their actions before a 
finding of bad-faith conduct is officially made and recorded.'' \67\ 
The proposed rule (and the final regulation) expressly provides an 
opportunity for parties and representatives accused of bad-faith 
conduct to respond, whether the accusation comes from another party or 
the CCB on its own initiative.\68\ Copyright Alliance et al. expressed 
concern over whether that opportunity would be available if ``the 
proceeding does not mature into an active case before the Board, or the 
case has otherwise been dismissed.'' \69\ Whether before, during, or 
after an active proceeding, an accusation of bad faith will trigger an 
opportunity to respond.\70\
---------------------------------------------------------------------------

    \67\ Copyright Alliance et al. Initial NPRM Comments at 17.
    \68\ See 86 FR 69890, 69916 (proposed 37 CFR 232.3(b)).
    \69\ Copyright Alliance et al. Initial NPRM Comments at 17.
    \70\ See 86 FR at 69916 (proposed 37 CFR 232.3(b)-(c)).
---------------------------------------------------------------------------

    Amazon approved of the proposed regulation allowing the CCB to 
consider prior bad acts when assessing bad faith conduct and proposed 
that the rule should go further and mandate such consideration.\71\ The 
CCB will have the discretion to consider the relevant indicia of bad 
faith as it may arise. The Office does not believe it is appropriate to 
determine in advance what it must consider in any particular case.
---------------------------------------------------------------------------

    \71\ Amazon Initial NPRM Comments at 3-4 (referring to proposed 
37 CFR 232.4(c)); id. at add. at A-38.
---------------------------------------------------------------------------

    Verizon suggested that the penalty of barring a party or 
representative who has acted in bad faith from initiating claims for a 
year, ``while a good start, is not sufficient. Such a rule may send the 
wrong message that a party is free to act in bad faith at least once a 
year with no consequences.'' \72\ Verizon proposed stronger 
``consequences up to and including, a ban on all future participation 
at the CCB.'' \73\ The CASE Act prescribes the penalty available for a 
bad faith determination.\74\ Moreover, the Office does not agree that 
parties are ``free to act in bad faith at least once a year,'' because 
other penalties, including the awarding of attorney's fees, are 
available to the CCB to impose after even a single act of 
misconduct.\75\
---------------------------------------------------------------------------

    \72\ Verizon Initial NPRM Comments at 1-2.
    \73\ Id. at 2.
    \74\ 17 U.S.C. 1506(y)(3).
    \75\ Id. at 1506(y)(2).
---------------------------------------------------------------------------

    The NPRM included a request for comments on whether the Office 
should publish a list of bad-faith actors barred from CCB proceedings, 
but the proposed rule did not include such a list ``because the Office 
believes that such a list would be unduly harsh, especially for non-
attorneys.'' \76\ Several commenters advocated for this,\77\ but the 
Office remains wary of the impact of a public bad-faith list and does 
not consider it necessary at this time. The determinations of the CCB 
will be available to the public,\78\ and the eCCB will allow for 
searches of information about parties and attorneys appearing before 
the CCB, including any orders related to bad faith.
---------------------------------------------------------------------------

    \76\ 86 FR 69890, 69894.
    \77\ AIPLA Initial NPRM Comments at 2; Verizon Initial NPRM 
Comments at 2; SFWA Reply NPRM Comments at 3.
    \78\ 17 U.S.C. 1503(a)(1)(I), 1506(b).
---------------------------------------------------------------------------

    Finally, a few commenters raised specific concerns about the 
formatting and timing of filings raising or responding to assertions of 
bad faith.\79\ The Office addresses these comments in the final rule as 
part of a broader revision of the regulations addressing the procedures 
for filing requests before the CCB, discussed below. These revisions 
specify the formatting and timing of party submissions to establish 
consistency and streamline the proceedings.
---------------------------------------------------------------------------

    \79\ See Amazon Initial NPRM Comments at 3 n.8 (``the Office 
should clarify'' whether the page limit is for single- or double-
spaced filings); id. at add. at A-24; Authors Guild Initial NPRM 
Comments at 4 (recommending extending the timeline to respond).
---------------------------------------------------------------------------

C. Management of Proceedings

1. Limitations on Proceedings
    The Office is authorized to limit ``the permitted number of 
proceedings each year by the same claimant . . . in the interests of 
justice and the administration of the Copyright Claims Board.'' \80\ 
Congress explained that this power ``functions as both a docket 
management tool for the Board and as protection against abusive 
conduct.'' \81\ In the NPRM, the Office proposed limiting claimants to 
10 proceedings filed in any 12-month period, and to limit private 
attorneys or law firms representing claimants to 40 proceedings in any 
12-month period.\82\ The Office invited comments ``as to whether these 
limitations strike the proper balance between the interests of the 
parties and the efficient management of the CCB's work.'' \83\
---------------------------------------------------------------------------

    \80\ 17 U.S.C. 1504(g).
    \81\ H.R. Rep. No. 116-252, at 31; see 86 FR 69890, 69917 
(proposed 37 CFR 233.2(a)) (prescribing rules pertaining to maximum 
number of CCB proceedings filed by a party).
    \82\ 86 FR 69890, 69917 (proposed 37 CFR 233.2(a)).
    \83\ Id. at 69896.

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[[Page 30065]]

    Multiple commenters commended the proposed regulation. Engine 
commented, ``[w]e strongly support the Office's attention to trying to 
prevent abuse of the CCB process, and appreciate the proposal to cap 
the number of CCB proceedings that a party may bring in any twelve-
month period to ten cases. This rule, and the limit on private 
attorneys and law firms representing claimants in no more than forty 
CCB proceedings in any twelve-month period, are useful ideas to help 
curb abuse of the CCB.'' \84\ Verizon also expressed its support, 
stating, ``[w]e commend the Office for their commitment to prevent 
abuse,'' and cautioning that ``bad actors could circumvent the yearly 
case cap [through] multiple corporate structures designed to handle 
smaller batches of cases.'' \85\
---------------------------------------------------------------------------

    \84\ Engine Initial NPRM Comments at 7.
    \85\ Verizon Initial NPRM Comments at 1. The Office notes that 
under the final rule, actions taken to circumvent the limit may be 
subject to penalties as bad-faith conduct. See 86 FR 69890, 69917 
(proposed 37 CFR 233.2(b)).
---------------------------------------------------------------------------

    Some commenters supported the imposition of limitations, but 
disagreed with certain aspects of the Office's proposed rule. For 
example, while SFWA supported limitations on the number of actions each 
year, it took the position that it would be unfair to count cases where 
a respondent opted out.\86\ The Copyright Alliance et al. also argued 
that the limits should only apply to active proceedings.\87\
---------------------------------------------------------------------------

    \86\ SFWA Reply NPRM Comments at 3.
    \87\ Copyright Alliance et al. Initial NPRM Comments at 10. The 
Copyright Alliance et al. also suggested a higher limit should be 
applied to ``smaller claims.'' Id. The Office will not set a 
separate case filing limit for smaller claims at this time, but will 
monitor the CCB's experience with smaller claims to determine if any 
future changes are needed.
---------------------------------------------------------------------------

    The Office understands why commenters suggested that case limits be 
restricted only to active cases, but it finds the suggestion 
impractical. While active proceedings require more of the CCB's 
resources, every new claim requires the CCB's compliance review. This 
compliance review process requires several steps, including possible 
communication with the claimant before the claim is approved for 
service.\88\
---------------------------------------------------------------------------

    \88\ 37 CFR 224.1(c).
---------------------------------------------------------------------------

    Further, a limitation on the number of filed claims is more easily 
managed. At the time of filing, it is impossible to determine when or 
if the case may become active. Some cases may become active several 
months after they are filed. A limitation on only active proceedings 
would leave claimants and attorneys in limbo during this time regarding 
whether they have met their filing limit. By contrast, Copyright Claims 
Attorneys, parties, and representatives will be able to readily 
determine how many claims a party or attorney has filed in the 
preceding year by conducting a search on eCCB.
    To address commenters' concern that a claimant's limit may be 
exhausted without a single proceeding becoming active, the Office has 
raised the number of cases that may be filed by each claimant per year. 
The final rule raises the limit to 30 proceedings in a 12-month period. 
The Copyright Alliance et al. commented that, because respondents can 
opt out, the 10-proceeding limit could ``prevent a claimant that has 
never had a single case heard by the Board from bringing additional 
cases for the remainder of the year.'' \89\ Raising the limit will not 
eliminate that possibility, but it will create many more opportunities 
for claims to be resolved on the merits by CCB determinations.
---------------------------------------------------------------------------

    \89\ Copyright Alliance et al. Initial NPRM Comments at 10.
---------------------------------------------------------------------------

    Some commenters, while supporting the limits on a claimant's 
filings, challenged the authority of the Office to limit the number of 
cases filed by attorneys, as compared to claimants. The Copyright 
Alliance et al. argued that ``the Office lacks the authority to 
establish a limitation on the number of cases filed by attorneys.'' 
\90\ AIPLA commented that the limits on attorneys and law firms are 
``inappropriate'' because, among other reasons, they ``would impair 
claimants' ability to retain counsel of their choice.'' \91\ AIPLA 
proposed that the limit on counsel, if imposed, should be ``applied on 
a per-attorney, not per-firm, basis.'' \92\
---------------------------------------------------------------------------

    \90\ Id. at 11.
    \91\ AIPLA Initial NPRM Comments at 2.
    \92\ Id. at 3.
---------------------------------------------------------------------------

    Several sections of the CASE Act authorize the Office and the CCB 
to limit the number of claims both to avoid abusive conduct and to 
ensure the CCB can operate in a timely and efficient manner. For 
example, the Act provides the CCB the authority to dismiss claims if 
the number or complexity of the claims exceed what ``the Copyright 
Claims Board could reasonably administer.'' \93\ In another part of the 
Act, the Register is directed to issue regulations that will ``provide 
for the efficient administration of the Copyright Claims Board, and for 
the ability of the Copyright Claims Board to timely complete 
proceedings.'' \94\ The statute expressly contemplates that the 
Register will adopt ``mechanisms to prevent harassing or improper use 
of the Copyright Claims Board by any party'' \95\ and the CASE Act's 
legislative history notes the risk of abuse by vexatious claimants.\96\ 
In promulgating these rules, the Office has given this topic close 
attention.
---------------------------------------------------------------------------

    \93\ 17 U.S.C. 1506(f)(3)(C).
    \94\ Id. at 1510(a)(1).
    \95\ Id.
    \96\ See S. Rep. No. 116-105, at 8.
---------------------------------------------------------------------------

    The Office believes that these stated goals of the CASE Act are 
best served by imposing reasonable limits on the number of proceedings 
that both claimants and counsel may bring. These limits will minimize 
the potential for abusive behavior--which can occur either by a party 
or counsel--and will ensure that the CCB can manage and conduct its 
proceedings effectively. Thousands of copyright infringement lawsuits 
are filed in Federal court each year, with the 6,209 filed in 2018 
setting a new record.\97\ The Office expects that a portion of those 
litigation matters will instead be filed as claims in the CCB once it 
commences operations, and that copyright owners heretofore dissuaded 
from enforcement by the prohibitive costs of litigation will bring 
additional claims before the CCB.\98\ Permitting a handful of claimants 
or attorneys to monopolize the CCB's resources with multiple filings 
would deny others the equitable opportunity to advance claims. Setting 
limits promotes the ``efficient administration'' of the CCB,\99\ within 
the meaning of the statute, because it will maximize the number of 
claimants to whom the CCB can provide services. The Office is not 
persuaded otherwise by AIPLA's comment that limitations on counsel 
``would impair claimants' ability to retain counsel of their choice.'' 
\100\ The CCB is an extension, not a contraction, of available 
tribunals for certain copyright claims. The right to retain counsel 
does not confer a right for that chosen counsel to appear in every 
forum. The Office therefore does not believe the limitation impinges on 
the right to choose counsel. A claimant set on working with an attorney 
or law firm that has reached the annual maximum will be free to bring 
the claim instead in a Federal court or

[[Page 30066]]

wait until the attorney can file the case before the CCB at a future 
time.\101\
---------------------------------------------------------------------------

    \97\ U.S. Courts, Just the Facts: Intellectual Property Cases--
Patent, Copyright, and Trademark (Feb. 13, 2020), https://www.uscourts.gov/news/2020/02/13/just-facts-intellectual-property-cases-patent-copyright-and-trademark.
    \98\ See Copyright Small Claims at 8-9 (``[T]he number of 
infringement actions actually filed in federal court likely 
significantly underrepresents the number of cases that copyright 
owners would choose to bring if they were able.'').
    \99\ 17 U.S.C. 1510(a)(1).
    \100\ AIPLA Initial NPRM Comments at 2.
    \101\ The statute distinguishes ``an attorney'' who may 
represent a party from ``a law student'' who may do so instead. 17 
U.S.C. 1506(d). Accordingly, the limitation on parties and attorneys 
does not apply to law students, law clinics, or pro bono legal 
services organization with a connection to the participating law 
student's law school.
---------------------------------------------------------------------------

    AIPLA also raised a concern that ``enforcement of such a limit [on 
representatives] could unduly prejudice innocent claimants. . . . 
[C]laimants who pay the filing fee and file proceedings that count 
against their limit should not have their claims dismissed or rejected 
because a lawyer or firm exceeded its limit. Rather, the CCB could 
require withdrawal or substitution of counsel.'' \102\ The Office 
agrees, and articulates a procedure in the final regulation in which, 
if an attorney or law firm files a new claim that exceeds its limit, 
that attorney or law firm must withdraw. The CCB may then issue a stay 
of proceedings for 60 days to allow the claimant to find substitute 
counsel or proceed pro se, which may be extended for good cause. The 
final rule also provides that a claim that exceeds a claimant's limit 
will be dismissed without prejudice.
---------------------------------------------------------------------------

    \102\ AIPLA Initial NPRM Comments at 2.
---------------------------------------------------------------------------

    AIPLA commented that ``[a] firm with hundreds of attorneys should 
not be subject to the same limit as a sole practitioner,'' \103\ and 
Copyright Alliance et al. commented that the limit on attorneys and law 
firms ``fails to account for the variation in size from one firm to 
another (for example, an international law firm employing thousands of 
attorneys should be permitted to bring far more than 40 cases 
annually).'' \104\ After considering the comments regarding the 
proposed limitations, the Office has made adjustments in the final 
rule. The Office is increasing the limit on law firms to 80 filed 
proceedings in a 12-month period, while maintaining the limit of 40 per 
attorney.
---------------------------------------------------------------------------

    \103\ Id. at 3.
    \104\ Copyright Alliance et al. Initial NPRM Comments at 11.
---------------------------------------------------------------------------

    Finally, the Office understands that it may benefit from the 
experience of seeing how these limitations on parties, attorneys, and 
firms work in practice. Accordingly, the Office will review and revisit 
the propriety of all limitations set for the number of filings 
permitted by parties, attorneys, and firms as necessary after seeing 
the types of filings it receives and considering the CCB's workload.
2. Applicability of Federal Rules of Civil Procedure and Federal Rules 
of Evidence
    Some commenters criticized the proposed rule as too closely modeled 
on the Federal Rules of Civil Procedure and the Federal Rules of 
Evidence.\105\ SFWA asserted that ``it is imperative that the proposed 
rules grant more flexibility than the Federal Rules of Evidence and the 
Federal Rules of Civil Procedure, particularly in light of the number 
of non-lawyers who can be expected to represent themselves in CCB 
claims.'' \106\ This continues to be a goal of the Office as well. The 
Office drafted the CCB's procedures to be considerably more flexible, 
accessible, and permissive than in Federal court.\107\ The Office has 
reviewed the proposed rules in light of the comments about complexity 
and made further changes to tailor them to the needs of CCB parties, 
including removing all references to the Federal Rules of Civil 
Procedure and the Federal Rules of Evidence apart from stating that the 
CCB is not bound by those rules.
---------------------------------------------------------------------------

    \105\ MPA & RIAA Initial NPRM Comments at 2-3; Copyright 
Alliance et al. Initial NPRM Comments at 8, 9; Authors Guild Initial 
NPRM Comments at 2.
    \106\ SFWA Reply NPRM Comments at 4.
    \107\ See 86 FR 69890, 69890 (noting the Office's decision to 
not adopt Rules 19 and 20 of the Federal Rules of Civil Procedure).
---------------------------------------------------------------------------

3. Written Requests and Other Filings
    While the CASE Act generally prohibits the ``formal motion 
practice'' \108\ that is at the heart of Federal civil procedure,\109\ 
parties may ``make requests to the Copyright Claims Board to address 
case management and discovery issues.'' \110\ Commenters proposed that 
the CCB streamline and make the form of such requests more consistent. 
The Authors Guild advised against ``unnecessary formatting 
requirements, such as page limits, font, and indent sizes,'' and 
recommended word limits instead.\111\ Copyright Alliance et al. 
suggested that the Office ``focus on consistency,'' setting a single 
formatting requirement for all party submissions, with each limited to 
either 5, 10, or 15 pages, and with the timelines for submissions 
plainly set forth.\112\ In response to these comments, the Office has 
revised the regulations governing the formatting and timing of party 
submissions.
---------------------------------------------------------------------------

    \108\ 17 U.S.C. 1506(m).
    \109\ See Fed. R. Civ. P. 6, 11, 12, 25, 50, 56, 59, 60, 62.1.
    \110\ 17 U.S.C. 1506(m)(1).
    \111\ Authors Guild Initial NPRM Comments at 2.
    \112\ Copyright Alliance et al. Initial NPRM Comments at 9; see 
also Sergey Vernyuk Initial NPRM Comments at 2 (proposing consistent 
formatting requirements for documents prepared for submission to the 
CCB).
---------------------------------------------------------------------------

    The final rule streamlines written requests by the parties into 
three tiers, with the majority falling under the first two tiers, which 
simply require use of a fillable form on eCCB subject to a character 
limit. All requests in tier one will be subject to a 4,000 character 
limit with a 7-day response time, and all party requests in tier two 
will be submitted through a 10,000 character limit with a 14-day 
response time. Accordingly, participants in eCCB proceedings will not 
have to worry about page limits, fonts, formatting, or different 
response times for the majority of requests and responses. Tier three 
is for more substantial written submissions (for example, party 
statements), which will also be uploaded to eCCB. With respect to tier 
three submissions, the Office has made changes to standardize the 
formatting, page limits, and response times in the final rule, where 
possible.
4. Scheduling Order
    Under the proposed rule, requests to modify a proceeding's 
scheduling order could be made orally or by letter and an objecting 
party would have three days to file a response after service of a 
letter request. However, the rule was silent about the timing of a 
response to an oral request, and Copyright Alliance et al. requested 
clarification.\113\ When an oral request is made at a hearing or 
conference, any other party may respond orally at that time or request 
a reasonable amount of time to submit a written response. In the final 
rule, any written submissions related to modification of the scheduling 
order will fall into the fillable form tier system.
---------------------------------------------------------------------------

    \113\ Copyright Alliance et al. Initial NPRM Comments at 20 
(discussing proposed 37 CFR 225.1(b)).
---------------------------------------------------------------------------

5. Amending Claims and Counterclaims
    Under the proposed rule, amended claims or counterclaims would be 
subject to compliance review by a Copyright Claims Attorney, and 
amending a claim after service would be prohibited without leave of the 
CCB.\114\ The only comments to address this rule supported it.\115\ In 
the final rule, the

[[Page 30067]]

Office is also prohibiting amendments to claims during the opt-out 
period. The Office believes that allowing claim amendments during the 
opt-out period would require additional compliance review and service, 
and cause undue administrative difficulty, delay, and burdens on 
respondents.
---------------------------------------------------------------------------

    \114\ See 86 FR 69890, 69905 (proposed 37 CFR 222.11).
    \115\ Amazon Initial NPRM Comments at 6; SFWA Reply NPRM 
Comments at 4. Amazon proposed adding language to the regulation 
that would make explicit that a party may seek the CCB's leave for 
``amendments after the opt-out period has expired.'' Amazon Initial 
NPRM Comments at add. at A-4. The Office sees no need for revision 
because that was already the effect of the proposed regulation. See 
86 FR 69890, 69905 (proposed 37 CFR 222.11(d)).
---------------------------------------------------------------------------

    In the final rule, written submissions related to requests for 
leave to amend claims will fall into the fillable form tier system. The 
final rule also clarifies that a claim or counterclaim may be freely 
amended if it is found to be noncompliant as part of the Board's 
compliance review. However, if a request for leave to amend is granted, 
then the pleading may only be amended as identified in the request.
6. Consolidation and Severance
    The NPRM proposed that proceedings that involve the same parties or 
arise out of the same facts and circumstances may be consolidated for 
purposes of conducting discovery, submitting evidence, or holding 
hearings, but not for purposes of CCB determinations and any damages 
award.\116\ Regarding severance, the NPRM noted that in ordinary 
circumstances, Copyright Claims Attorneys likely will be able to 
identify during their compliance review instances where multiple claims 
involving disparate facts and circumstances have been asserted, and can 
require that the claimant separate out these unrelated claims.\117\ 
However, the Office also proposed a rule permitting the CCB to sever 
proceedings with respect to some or all parties, claims, and issues 
where it becomes evident that a proceeding includes distinct claims 
involving disparate facts and circumstances that would be inappropriate 
to resolve in a single proceeding.\118\
---------------------------------------------------------------------------

    \116\ 86 FR 69890, 69905-06 (proposed 37 CFR 222.12).
    \117\ Id. at 69897.
    \118\ Id.
---------------------------------------------------------------------------

    Commenters expressed concern about these provisions. The Authors 
Guild cautioned that pro se parties might not know how to respond to a 
request to sever or consolidate proceedings, and urged that claims be 
consolidated or severed only by authority of the CCB.\119\ AIPLA and 
SFWA expressed concerns about the impact that severance and 
consolidation would have on the CASE Act's caps on damages.\120\ In 
light of these comments and concerns expressed by commenters cautioning 
against perceived complexities in the proposed rules as a whole,\121\ 
and following a review of the statutory framework regarding 
consolidation and severance, the Office has concluded that the proposed 
rule is redundant in light of other provisions in the statute.
---------------------------------------------------------------------------

    \119\ Authors Guild Initial NPRM Comments at 3.
    \120\ AIPLA Initial NPRM Comments at 3; SFWA Reply NPRM Comments 
at 4. See 17 U.S.C. 1504(e)(1)(A)(ii) (caps on statutory damages for 
infringement claims per work infringed); id. at 1504(e)(1)(D) (cap 
on total damages per proceeding).
    \121\ See supra note 18.
---------------------------------------------------------------------------

    The CASE Act prohibits a claimant from combining more than one 
claim in a single proceeding unless all of the claims ``arise out of 
the same allegedly infringing activity or continuous course of 
infringing activities and do not, in the aggregate, result in the 
recovery of such claim or claims for damages that exceed the [CASE 
Act's monetary damages] limitations.'' \122\ Hence, a proceeding 
initiated by a claimant that includes multiple claims involving 
disparate facts and circumstances would not survive compliance review, 
and the claimant would be required to file separate proceedings for 
each of the claims. Because the statute already provides a mechanism to 
address the issues that the proposed rule on severance would have 
addressed, the final rule does not include such a provision.
---------------------------------------------------------------------------

    \122\ 17 U.S.C. 1504(c)(6).
---------------------------------------------------------------------------

    In contrast, the provision permitting consolidation will permit the 
CCB to achieve efficiencies in managing multiple proceedings filed by a 
claimant against the same respondent when those proceedings arise out 
of the same facts and circumstances. In such cases, the CCB may 
consolidate matters such as discovery, the submission of evidence, and 
hearings, while rendering separate determinations for each proceeding. 
Because consolidation only combines certain procedural steps and does 
not actually join the claims into a single proceeding, the existing 
caps on damages for each proceeding will continue to apply. The Office 
is mindful of the concern expressed by the Authors Guild that pro se 
parties may not know how to respond to a request to sever or 
consolidate proceedings \123\ and, consistent with the Authors Guild's 
recommendation, has retained the language reserving the authority to 
consolidate proceedings to the CCB.
---------------------------------------------------------------------------

    \123\ See Authors Guild Initial NPRM Comments at 3.
---------------------------------------------------------------------------

7. Settlement
    Commenters generally supported the proposed rule on settlement 
conferences,\124\ while proposing certain procedural and textual 
amendments. The NPRM requested comments concerning the role of the 
Copyright Claims Officer who presides over a settlement conference, 
specifically concerning that Officer's role in a final 
determination.\125\ AIPLA commented, ``parties are more likely to 
participate in settlement discussions if the Officer presiding over the 
settlement conference is not deciding the merits. We believe the 
Office's proposed structure, in which the Officer presiding over 
settlement discussions is recused from the final decision except to 
break a tie, is permitted under the plain language of the statute.'' 
\126\ Copyright Alliance et al. favored the proposal that the presiding 
settlement Officer would serve only as a tiebreaker in the final 
determination, adding that the ``Officer should be permitted to review 
the record and sit in on hearings, etc., but should not be permitted to 
actively participate in the discussions in any manner that might 
influence the independence of the remaining two Officers.'' \127\ The 
Office agrees, and the final rule incorporates the commenters' 
suggestions. The final rule provides for the recusal of the Officer who 
presides over a settlement conference unless required as a tiebreaker 
in the final determination.
---------------------------------------------------------------------------

    \124\ See SFWA Reply NPRM Comments at 5 (``[W]e believe the 
proposed rules are sensible and straightforward.''); AIPLA Initial 
NPRM Comments at 3 (``We commend the Office's desire to encourage 
voluntary settlement.'').
    \125\ 86 FR 69890, 69898.
    \126\ AIPLA Initial NPRM Comments at 3.
    \127\ Copyright Alliance et al. Initial NPRM Comments at 19.
---------------------------------------------------------------------------

    The proposed rule provided that the CCB ``shall encourage voluntary 
settlement between the parties of any claims or counterclaims,'' \128\ 
and the Office solicited comments ``on whether the CCB should be able 
to order a settlement conference where it sees a possible benefit to 
holding a conference even where one or more parties object.'' \129\ 
SFWA cautioned against ``mandating settlement conferences where there 
is extreme animosity or a significant power imbalance between 
parties.'' \130\ Verizon urged that the settlement process should ``be 
done on a fully voluntary and mutually agreeable basis,'' and ``urge[d] 
the Office to exercise caution regarding the notion of `encouraging' 
settlements to ensure the CCB process is not converted from an 
adjudicatory body into a settlement collection process.'' \131\ The 
legislative history is explicit that the CASE Act ``reflects an intent 
to encourage compromise and settlement'' and is

[[Page 30068]]

``designed to promote compromise.'' \132\ Indeed, AIPLA specifically 
``commend[ed] the Office's desire to encourage voluntary settlement.'' 
\133\ Nevertheless, mindful of commenters' concerns, the Office is 
modifying the rule's text to state that the CCB shall ``facilitate,'' 
and not ``encourage,'' settlement. This is consistent with the 
statutory text, under which facilitating settlement is one of the 
Copyright Claims Officers' express functions.\134\
---------------------------------------------------------------------------

    \128\ 86 FR 69890, 69907 (proposed 37 CFR 222.17(a)).
    \129\ Id. at 69898.
    \130\ SFWA Reply NPRM Comments at 5.
    \131\ Verizon Initial NPRM Comments at 2.
    \132\ H.R. Rep. No. 116-252, at 24.
    \133\ AIPLA Initial NPRM Comments at 3.
    \134\ 17 U.S.C. 1503(a)(1)(F), 1506(r)(1)(A); see also id. at 
1502(b)(3)(A)(iii) (requiring that one Copyright Claims Officer 
shall have experience in alternative dispute resolution).
---------------------------------------------------------------------------

    Under the proposed rule, before parties participate in a settlement 
conference, they are required to email their position statements to the 
presiding Copyright Claims Officer and, if the parties agree, the 
parties shall ``serve'' their statements on the other participating 
parties.\135\ Upon a suggestion by the Authors Guild,\136\ the Office 
changes the language of the provision from ``serve'' to ``send,'' to 
clarify that formal service is not required when the parties exchange 
settlement statements.
---------------------------------------------------------------------------

    \135\ 86 FR 69890, 69907-08 (proposed 37 CFR 222.17(d)).
    \136\ Authors Guild Initial NPRM Comments at 3.
---------------------------------------------------------------------------

8. Records and Publication
    The CCB's final determinations will be made available on a 
publicly-accessible website, and the statute directs the Office to 
establish regulations related to the publication of other records and 
information.\137\ As stated in the NPRM, the ``proposed rule seeks to 
balance public access with the confidentiality interests of the 
parties.'' \138\
---------------------------------------------------------------------------

    \137\ 17 U.S.C. 1506(t)(3).
    \138\ 86 FR 69899.
---------------------------------------------------------------------------

    The NPRM also noted that the CCB will generally create hearing 
transcripts through ``standard speech to text transcript technology 
that is available with the CCB's videoconferencing system,'' and 
invited comments on ``whether such informal raw transcripts, which may 
contain various errors, should be added to the official record.'' \139\ 
The Copyright Alliance et al. commented ``that hearing transcripts 
should not be made public as a part of the official record.'' \140\ 
Sergey Vernyuk favored making the transcripts available to promote 
transparency.\141\ At this time, the Office does not believe that 
publishing the uncorrected transcripts is advisable, given the 
potential for errors, although the parties will have the ability to 
request and pay for an official reporter. The Office may reevaluate 
this position over time based on further experience and review of the 
transcripts.
---------------------------------------------------------------------------

    \139\ Id.
    \140\ Copyright Alliance et al. Initial NPRM Comments at 22.
    \141\ Sergey Vernyuk Initial NPRM Comments at 1.
---------------------------------------------------------------------------

    The final rule limits attendance at hearings to the parties and 
their representatives, except with leave of the CCB.\142\ While Sergey 
Vernyuk proposed making hearings open to the public by default and 
``seal[ed]'' only with leave,\143\ the Office is concerned that the 
virtual nature of CCB proceedings may pose technological or security 
concerns if they are fully open to the public. The Office will consider 
reevaluating the issue in the future.
---------------------------------------------------------------------------

    \142\ 86 FR 69890, 69915 (proposed 37 CFR 229.1(c)).
    \143\ Sergey Vernyuk Initial NPRM Comments at 1.
---------------------------------------------------------------------------

D. Discovery and Evidence

    In the NPRM, the Office proposed a discovery process intended to be 
a streamlined, easy-to-use system that offered standardized discovery 
requests. Several commenters supported the Office's proposed system of 
standardized discovery. For example, AIPLA wrote that it ``believes 
that the proposed approach to written discovery is sound and supports 
the establishment of standard interrogatories and document requests. . 
. . These procedures will go a long way towards making discovery 
manageable for pro se claimants and respondents.'' \144\ Amazon, the 
Authors Guild, and SFWA all submitted similar comments supporting the 
Office's proposed use of limited, standardized discovery.\145\ Engine 
added that the ``CCB-issued interrogatories and document requests . . . 
go some way towards addressing our concerns about the early disclosure 
of relevant evidence and combatting discovery abuse.'' \146\
---------------------------------------------------------------------------

    \144\ AIPLA Initial NPRM Comments at 4.
    \145\ Amazon commented, ``[t]he Office's proposed mechanisms, 
including standardized discovery requests and limitations on the 
production of electronically stored information (`ESI'), will 
promote an efficient and inexpensive discovery process in CCB 
proceedings. . . . Amazon strongly supports the use of CCB-issued 
interrogatories and document requests, and limited requests for 
admissions.'' Amazon Initial NPRM Comments at 4 (footnote omitted). 
The Authors Guild, ``applaud[ed] the use of standard forms for 
discovery requests'' and ``strongly agree[d] with the use of 
standard interrogatories and standard document requests.'' Authors 
Guild Initial NPRM Comments at 4. SFWA ``strongly approve[d] of 
standardized interrogatories and RFPs.'' SFWA Reply NPRM Comments at 
6.
    \146\ Engine Initial NPRM Comments at 5.
---------------------------------------------------------------------------

    Some commenters considered the scope of discovery too broad under 
the proposed regulations. MPA and RIAA commented that, if the CASE Act 
is ``implemented without significant cabining, the discovery rules for 
CCB would result in significant burdens for litigants to propound, 
respond to, and dispute discovery, overwhelming the amount in dispute, 
undermining the effectiveness of the system, and leading both potential 
claimants and respondents to opt out.'' \147\ Copyright Alliance et al. 
stated that ``the discovery process should be limited by requiring that 
all discovery requests, including requests for production of documents, 
be: (i) Narrowly targeted; (ii) highly likely to result in the 
production of evidence that is directly relevant to the claims and 
defenses; and (iii) serve the goal of efficient resolution of the case 
in light of the nature of the claims and defenses and the amount in 
dispute.'' \148\
---------------------------------------------------------------------------

    \147\ MPA & RIAA Initial NPRM Comments at 5.
    \148\ Copyright Alliance et al. Initial NPRM Comments at 15.
---------------------------------------------------------------------------

    The Office has carefully reviewed its proposed regulations with 
these comments in mind. It has made changes to the regulations 
regarding interrogatories and document requests to ensure that the 
scope of allowed discovery is not overly extensive. The Office believes 
that the final rule provides for a discovery process that is properly 
tailored to assist in resolving claims before the CCB, and is 
substantially narrower than what the Federal rules allow. In addition, 
on a case-by-case basis, parties will need to show good cause to 
conduct additional discovery. Moreover, a party concerned that the 
scope of discovery is too broad may raise the issue during the pre-
discovery conference held in each case, identifying any of the standard 
requests that may be overly burdensome or not relevant.
    When the Office proposed a small-claims system for copyright, it 
suggested that ``the parties likely will not have access to extensive 
discovery and will instead be limited to presenting the most critical 
evidence. Cases will be developed using abbreviated procedures, in 
shorter time frames, in order to simplify and speed the process.'' 
\149\ The Office believes that the proposed regulations serve this 
vision. It has endeavored to establish a process that, while 
streamlined, is also just.\150\ Commenters generally recognized this 
important balance, and as stated above,

[[Page 30069]]

supported the idea of standardized discovery.\151\
---------------------------------------------------------------------------

    \149\ Copyright Small Claims at 103.
    \150\ As the Office previously stated, ``[a]ny system to 
adjudicate small claims must grapple with the nature and amount of 
discovery to be permitted. . . . [T]he broad availability of 
discovery and related frustration of discovery-related disputes are 
significant factors in the timing and expense of federal litigation. 
At the same time, it is difficult to resolve a dispute fairly 
without access to relevant information.'' Id. at 124.
    \151\ See, e.g., Engine Initial NPRM Comments at 6 (``efforts to 
streamline the discovery process . . . [should] not come at the 
expense of parties gaining access to the information they need to 
make their case'').
---------------------------------------------------------------------------

    Standardized discovery has the key benefit of reducing the burden 
on parties to develop their own discovery requests, particularly for 
those parties appearing pro se. At the same time, it must be broad 
enough to capture common issues that will arise in the majority of 
proceedings. But that does not mean that all such requests are 
appropriate for every claim, and additional limitations on the scope of 
discovery may be called for in some circumstances. Where this is the 
case, a party should bring this to the CCB's attention in a conference.
    The Authors Guild requested that the CCB notify parties that they 
have a duty to update information they provide in response to 
interrogatories and to disclose responsive documents no longer in their 
possession.\152\ As currently drafted, the regulation both imposes a 
duty to update and obligates parties ``to preserve all material 
documents.'' \153\ These duties will be addressed in the CCB Handbook 
and in the parties' pre- and post-discovery conferences.
---------------------------------------------------------------------------

    \152\ Authors Guild Initial NPRM Comments at 4 (discussing 
proposed 37 CFR 225.2(f) & 225.4(f)(4)).
    \153\ 86 FR 69890, 69912 (proposed 37 CFR 225.4(f)(5)).
---------------------------------------------------------------------------

    The Authors Guild also suggested that the CCB ``should give 
reminders for deadlines.'' \154\ The Office considers the request 
impracticable for discovery-related deadlines that will be triggered by 
exchanges between the parties outside of eCCB, but is working to have 
eCCB send out email reminders related to certain deadlines that require 
a filing.
---------------------------------------------------------------------------

    \154\ Authors Guild Initial NPRM Comments at 3.
---------------------------------------------------------------------------

    AIPLA noted that it ``supports the requirement that parties meet 
and confer regarding [discovery] disputes, before raising the issue 
with the CCB,'' but warned that the requirement should not become a 
means for parties ``to avoid disputes by failing to meet and confer.'' 
\155\ A party's failure to confer will not prevent the CCB from 
addressing discovery disputes when needed. The final rule provides that 
parties whose reasonable efforts to confer are frustrated can explain 
the steps taken to resolve the dispute before seeking CCB assistance 
when requesting a conference.
---------------------------------------------------------------------------

    \155\ AIPLA Initial NPRM Comments at 4 (discussing proposed 37 
CFR 225.5(a)); see 86 FR 69890, 69912.
---------------------------------------------------------------------------

    The proposed rule required parties to certify discovery responses, 
and the final rule clarifies the scope of certification. The producing 
party must certify that interrogatory responses are accurate and 
truthful, and that documents produced are genuine and unaltered, to the 
best of that party's knowledge. The Authors Guild asked the Office to 
provide the specific wording of the required certification in the CCB 
Handbook and on CCB forms.\156\ The Office agrees, and plans on 
providing certification language in the CCB Handbook. The Office also 
intends to create forms for responding to standard interrogatories, and 
expects to include the certification.
---------------------------------------------------------------------------

    \156\ Authors Guild Initial NPRM Comments at 4.
---------------------------------------------------------------------------

    Amazon supported the certification requirement and suggested 
further requiring parties to certify that they have reviewed the CCB's 
standard protective order, and that any materials they designate as 
confidential fit the protective order's definition of ``confidential.'' 
\157\ To keep the required certification easy to use and understand by 
all parties, the Office is not inclined to make it more complicated or 
include a reference to protective orders that will only be present in 
certain cases.\158\ However, the Office notes that protective order 
violations may constitute bad-faith conduct.
---------------------------------------------------------------------------

    \157\ Amazon Initial NPRM Comments at 4, add. at A-15.
    \158\ See 86 FR 69890, 69908 (proposed 37 CFR 222.18(a)) (noting 
that protective orders only apply ``[a]t the request of any 
party'').
---------------------------------------------------------------------------

    As noted above, in response to the comments received, the Office 
has conducted a complete review of all of the discovery regulations to 
ensure they are narrowly tailored and to make them more understandable 
to the general public. Specific changes that have been adopted are 
discussed below. Guidance will also be available to the parties through 
the Copyright Claims Attorneys, and the CCB Handbook will have detailed 
easy-to-understand instructions about the discovery process.
1. Protective Orders
    The Office is incorporating commenters' amendments to the proposed 
rule on protective orders. Amazon proposed that the categories of 
discovery material subject to designation as ``confidential'' should 
include advertising plans not previously disclosed to the public.\159\ 
Amazon also proposed a regulatory revision specifying that parties 
``must'' (rather than ``are expected to'') attempt to resolve disputes 
over confidentiality designations before bringing such disputes to the 
CCB.\160\ The Office understands the benefits of having parties first 
discuss these issues directly before engaging with the CCB. At the same 
time, the Office is sensitive to the expertise imbalance that could 
occur when, for example, one party is represented and one party is pro 
se. The Copyright Alliance et al. urged that the proposed rule, which 
allowed the CCB to unilaterally de-designate materials labeled 
``confidential,'' should provide the affected party a chance to object 
beforehand.\161\ The final rule makes each of these requested 
amendments, and the CCB will be tasked with ensuring that the 
protective order procedures are not misused when one party is pro se.
---------------------------------------------------------------------------

    \159\ Amazon Initial NPRM Comments at 4 n.19, add. at A-12.
    \160\ Id. at add. at A-13.
    \161\ Copyright Alliance et al. Initial NPRM Comments at 20.
---------------------------------------------------------------------------

2. Interrogatories
    As noted above, commenters generally favored the CCB's use of 
standard form interrogatories.\162\ SFWA proposed that the 
interrogatories ``should be standardized for different media, formats, 
and kinds of publication.'' \163\ The Office does not believe that 
multiple versions of standardized interrogatory requests are required 
at this time, but will consider the adoption of different versions in 
the future. Under the final rule, parties that require media-specific 
discovery may request it under the process for additional discovery.
---------------------------------------------------------------------------

    \162\ See AIPLA Initial NPRM Comments at 4; Amazon Initial NPRM 
Comments at 4; Authors Guild Initial NPRM Comments at 4; Engine 
Initial NPRM Comments at 5; SFWA Reply NPRM Comments at 6.
    \163\ SFWA Reply NPRM Comments at 6.
---------------------------------------------------------------------------

    Engine raised a concern that the language in the standard 
interrogatories, as summarized in the proposed regulation, might be 
``difficult enough to parse[ ] for attorneys'' and ``unclear for pro se 
parties who are encountering the discovery process for the first 
time.'' \164\ The Office has reviewed the proposed rule and made some 
simplifying revisions. Further, the Office notes that the rule 
describes the interrogatory categories, but does not include their 
final text. The actual interrogatory forms will adopt easy-to-
understand language, and the Office intends to provide instructional 
materials, e.g., through the CCB Handbook, to guide the parties.
---------------------------------------------------------------------------

    \164\ Engine Initial NPRM Comments at 5.
---------------------------------------------------------------------------

    Engine also commented that section 512(f) misrepresentation claims 
are likely to require more and different interrogatories than a 
standard CCB misrepresentation discovery would provide, and, in 
particular, ``[t]he CCB-

[[Page 30070]]

issued interrogatories for [section] 512(f) cases, as they are 
currently phrased, are unlikely to capture the full range of evidence 
that a claimant would need to prove subjective bad faith.'' \165\ It 
proposed ``eliminating the good cause requirement for an initial number 
of additional discovery requests in [section] 512(f) claims.'' \166\ 
The Office does not agree that this exception to the standard discovery 
rules is necessary. If a party asserting or responding to a section 
512(f) claim believes that it needs additional information that is not 
captured by the standard misrepresentation interrogatories, it may make 
a request to propound further interrogatories under the provisions 
pertaining to additional discovery.
---------------------------------------------------------------------------

    \165\ Id. at 6-7.
    \166\ Id. at 7.
---------------------------------------------------------------------------

    Sergey Vernyuk requested a definition or further explanation of 
which documents count as ``material.'' \167\ A ``material'' document is 
one that could be used to prove or disprove a fact that is in dispute 
in a proceeding and may have influence on the outcome of the 
proceeding. As the universe of ``material'' documents is unlimited, 
rather than put forward any sort of list in the regulations, the Office 
intends to provide guidance to pro se parties and provide examples in 
the CCB Handbook.
---------------------------------------------------------------------------

    \167\ Sergey Vernyuk Initial NPRM Comments at 2.
---------------------------------------------------------------------------

    Finally, SFWA also proposed that the Office make the 
interrogatories ``available for comment separately so that individual 
creator groups can fine tune them for maximum clarity.'' \168\ The 
Office appreciates the interest and will welcome feedback once the 
forms are final and publicly available, but finds that an additional 
round of public comment would be impractical as the CCB is due to 
commence operations shortly.
---------------------------------------------------------------------------

    \168\ SFWA Reply NPRM Comments at 6.
---------------------------------------------------------------------------

3. Requests for Admission
    The CASE Act specifically refers to ``written requests for 
admission, as provided in regulations established by the Register of 
Copyrights.'' \169\ This is a standard form of discovery in Federal 
civil litigation.\170\ The NPRM proposed limiting parties to ten 
requests for admission, with compound requests barred.\171\ Some 
commenters, however, strongly advocated for eliminating them from CCB 
proceedings entirely.\172\
---------------------------------------------------------------------------

    \169\ 17 U.S.C. 1506(n).
    \170\ See Fed. R. Civ. P. 36.
    \171\ 86 FR 69890, 69911 (proposed 37 CFR 225.3(a)-(b)).
    \172\ See Authors Guild Initial NPRM Comments at 4; Copyright 
Alliance et al. Initial NPRM Comments at 15; MPA & RIAA Initial NPRM 
Comments at 6-7.
---------------------------------------------------------------------------

    MPA and RIAA commented that requests for admission (``RFAs'') are 
``prone to use of tendentious language by both the propounder of the 
RFA as well as the responding party, resulting in semantic battles 
between sophisticated attorneys that are unlikely to advance the 
adjudication of a copyright small-claims matter. . . . Drafting and 
responding to RFAs would consume significant time, and likely for 
little benefit.'' \173\ The MPA and RIAA also voiced ``serious doubts 
that many pro se litigants, either claimants or respondents, would be 
able to engage in meaningful exchange of RFAs and responses--or engage 
in motion practice to resolve potential disputes about them.'' \174\ 
The Authors Guild opined that requests for admission ``could prove to 
be a trap for pro se parties litigating against sophisticated 
parties.'' \175\ Likewise, Copyright Alliance et al. opposed the use of 
requests for admission on grounds of the complexity and burden.\176\
---------------------------------------------------------------------------

    \173\ MPA & RIAA Initial NPRM Comments at 6.
    \174\ Id. at 6-7.
    \175\ Authors Guild Initial NPRM Comments at 4.
    \176\ Copyright Alliance et al. Initial NPRM Comments at 15.
---------------------------------------------------------------------------

    Some commenters did not object to the use of requests for admission 
in CCB discovery, and one strongly supported including them on a 
limited basis. Sergey Vernyuk agreed with the Office's decision not to 
provide standard forms, leaving the content of the requests up to the 
parties.\177\ AIPLA considered the Office's proposed ten-request limit 
``reasonable,'' \178\ and Amazon ``strongly support[ed] . . . limited 
requests for admission.'' \179\
---------------------------------------------------------------------------

    \177\ Sergey Vernyuk Initial NPRM Comments at 1 (citing 86 FR 
69890, 69900).
    \178\ AIPLA Initial NPRM Comments at 4.
    \179\ Amazon Initial NPRM Comments at 4.
---------------------------------------------------------------------------

    The Office finds the comments requesting the elimination of 
requests for admission persuasive and believes that the elimination 
from the ordinary case would significantly streamline discovery without 
substantially affecting parties' ability to develop the facts. The 
final rule classifies requests for admission as a form of additional 
discovery that the CCB may allow ``on a limited basis'' and ``for good 
cause shown.'' \180\ They will not be available as ``of right,'' and 
requesting parties must provide the specific RFAs they seek to propound 
and show good cause for each. These restrictions are consistent with 
suggestions by the commenters who opposed the use of RFAs.\181\
---------------------------------------------------------------------------

    \180\ 17 U.S.C. 1506(n)(1).
    \181\ See MPA & RIAA Initial NPRM Comments at 7; Copyright 
Alliance et al. Initial NPRM Comments at 15.
---------------------------------------------------------------------------

4. Production of Documents
    Some commenters, including some who approved of the CCB-issued 
standardized discovery requests,\182\ contended that specific document 
requests described in the proposed rule are too broad. The NPRM 
proposed requiring parties responding to infringement claims or 
counterclaims to produce ``documents related to'' revenues, profits, 
and deductible expenses ``directly related to the sale or use of the 
allegedly infringing material.'' \183\ To ``safeguard against overbroad 
and potentially irrelevant discovery related to this type of financial 
information,'' Amazon suggested that infringement respondents instead 
should be required to produce only ``documents sufficient to show'' 
those matters, arguing that the NPRM version of the request ``may 
result in unintended and burdensome discovery.'' \184\ The Office 
agrees that this is a reasonable limitation and the final rule reflects 
the change.
---------------------------------------------------------------------------

    \182\ See Amazon Initial NPRM Comments at 4 (supporting 
standardized interrogatories and document requests).
    \183\ 86 FR 69890, 69911 (proposed 37 CFR 225.4(c)(5)).
    \184\ Amazon Initial NPRM Comments at 5, add. at A-22.
---------------------------------------------------------------------------

    Some commenters proposed excluding certain categories of documents 
from the standardized requests. These proposals have not been adopted 
in the final rule. For example, Copyright Alliance et al. commented 
that ``a party should not be entitled to discovery related to past 
licensing fees assessed by a copyright owner.'' \185\ The Office 
believes that a copyright owner's licensing practices, and the 
licensing history of the infringed work and similar works, may be 
relevant to determining damages. Discovery of such relevant evidence 
should not be categorically excluded.
---------------------------------------------------------------------------

    \185\ Copyright Alliance et al. Initial NPRM Comments at 15 n.6; 
see also MPA & RIAA Initial NPRM Comments at 5 (stating that 
discovery ``should not extend to other transactions in which either 
party may have engaged, even if they are similar to the case at 
bar'').
---------------------------------------------------------------------------

    For misrepresentation claims, Amazon recommended that respondents 
should be required to produce only ``documents sufficient to show'' the 
truth or falsity of representations made in the notification or 
counter-notification, rather than all ``[d]ocuments pertaining to'' 
those matters, which could ``result in

[[Page 30071]]

overbroad, irrelevant, and burdensome discovery.'' \186\ The Office 
believes the proposed change could be read to permit a respondent to 
produce only exculpatory documents ``sufficient to show'' that its 
statements were true, while withholding documents that support the 
misrepresentation claim. However, to limit the universe of potentially 
responsive documents, the Office revises the rule to ``[d]ocuments 
directly pertaining to'' truth or falsity.
---------------------------------------------------------------------------

    \186\ Amazon Initial NPRM Comments at 5, add. at A-23; 86 FR 
69890, 69911 (proposed 37 CFR 225.4(e)(2)).
---------------------------------------------------------------------------

    ``[T]o make clear that parties are permitted to withhold privileged 
documents,'' Copyright Alliance et al. proposed that the Office should 
revise the proposed rule on the standard production of documents by 
excluding documents ``privileged or protected from disclosure.'' \187\ 
The Office is concerned that introducing such legal terminology may 
prove counter-productive, especially when dealing with pro se parties, 
but the Office recognizes the importance of the attorney-client 
privilege. The final rule specifies that confidential communications 
between a party and its counsel reflecting or seeking legal advice 
related to the merits of the proceeding shall be considered privileged 
categorically and need not be produced. Parties seeking to withhold 
other types of documents must first seek and receive leave of the CCB.
---------------------------------------------------------------------------

    \187\ Copyright Alliance et al. Initial NPRM Comments at 22 
(discussing proposed 37 CFR 225.4(a)).
---------------------------------------------------------------------------

    MPA and RIAA contended that two provisions in the proposed rule 
(requiring production of ``[a]ll documents related to damages'' and 
``[a]ll other documents of which the party is reasonably aware that 
conflict with the party's claims or defenses'') ``seem to encompass 
large volumes of documents that are not directly related to the dispute 
itself.'' \188\ While the Office considers both categories of documents 
relevant, it also recognizes that other categories in the proposed rule 
cover the same subject matter.\189\ Thus, it is removing the broad 
category ``[a]ll documents related to damages'' from the final rule and 
narrowing the other request by adding the phrase ``in the proceeding'' 
to the request for documents that conflict with the party's claims or 
defenses.
---------------------------------------------------------------------------

    \188\ MPA & RIAA Initial NPRM Comments at 6; 86 FR 69890, 69911 
(proposed 37 CFR 225.4(a)(2)-(3)).
    \189\ See 86 FR 69890, 69911 (proposed 37 CFR 225.4(b)(7), 
(c)(5)).
---------------------------------------------------------------------------

    Commenters raised concerns about the scope of a party's obligation 
to search for responsive documents and electronically stored 
information (e.g., email) to produce in discovery, with Amazon stating 
that such searches should not be of the documents of any of the party's 
agents, employees, representatives, or others acting on the party's 
behalf without limitation, but rather those whom the party reasonably 
believes would or should have responsive documents.\190\ In the final 
rule, the Office has limited the files that must be searched to files 
in the party's possession or under their control, to the files of any 
of the party's agents, employees, representatives, or others acting on 
the party's behalf ``who the party reasonably believes may have 
responsive documents.''
---------------------------------------------------------------------------

    \190\ Amazon Initial NPRM Comments at 4-5, add. at A-23 
(discussing proposed 37 CFR 225.4(f)(1)-(2)), MPA & RIAA Initial 
NPRM Comments at 6 (discussing proposed 37 CFR 225.4(f)(2)); see 86 
FR at 66911-12 (proposed 37 CFR 225.4(f)(1)-(2)).
---------------------------------------------------------------------------

    The Office disagrees with Amazon's suggestion that the rule should 
state that ``parties are not required to run custodial email searches 
to locate responsive documents.'' \191\ If a party reasonably believes 
that responsive documents are in its possession or under its control, 
including in emails and computer files, it must conduct a reasonable 
search. For that reason, the Office also disagrees with MPA and RIAA's 
position that ``[s]earches for responsive documents should be limited 
to the responding party itself,'' and should not reach the files of its 
``agents, employees, representatives, or others acting on the party's 
behalf.'' \192\ If a third party's files are under the party's control, 
they are not inaccessible, and the efficient resolution of CCB claims 
will require reasonable searches for the limited universe of documents 
subject to production. The final rule also establishes an explicit 
reasonable investigation standard for discovery responses.
---------------------------------------------------------------------------

    \191\ Amazon Initial NPRM Comments at 4-5, add. at A-23.
    \192\ MPA & RIAA Initial NPRM Comments at 6 (discussing proposed 
37 CFR 225.4(f)(2)); see also 86 FR 69890, 66912 (proposed 37 CFR 
225.4(f)(2)).
---------------------------------------------------------------------------

    The Copyright Alliance et al. noted that the proposed rule, which 
set out a baseline expectation for manual searches of electronically 
stored information ``that are easily accomplished by a layperson,'' 
\193\ appeared to prohibit parties from conducting more extensive 
searches.\194\ The Office never intended its rule to prohibit parties 
who want to conduct such searches from doing so. Adopting Copyright 
Alliance et al.'s suggestion, the Office revises the rule to provide 
that such searches ``need not,'' rather than ``shall not,'' exceed that 
baseline. The Copyright Alliance et al. further noted that the proposed 
rule treats document productions that ``include large amounts of 
irrelevant or duplicative material,'' \195\ commonly referred to as 
``document dumps,'' \196\ as acts of ``per se `bad faith.' '' \197\ 
Copyright Alliance et al. suggested that the CCB should retain the 
discretion to make determinations of bad faith ``in light of all 
relevant context.'' \198\ The Office agrees, and the final rule 
modifies the proposed regulation by providing that such voluminous 
productions ``may,'' rather than ``shall,'' constitute bad-faith 
conduct.
---------------------------------------------------------------------------

    \193\ 86 FR at 66912 (proposed 37 CFR 225.4(f)(2)(i)).
    \194\ Copyright Alliance et al. Initial NPRM Comments at 21-22.
    \195\ 86 FR 69890, 66912 (proposed 37 CFR 225.4(f)(3)).
    \196\ See id. at 66901.
    \197\ Copyright Alliance et al. Initial NPRM Comments at 16.
    \198\ Id.
---------------------------------------------------------------------------

5. Depositions
    Depositions will not be permitted in CCB proceedings. Testimony is 
primarily submitted in written form and oral testimony is presented 
only at a hearing conducted before the CCB.\199\ Commenters asked the 
Office to make the prohibition of depositions explicit \200\ and the 
final rule does so.
---------------------------------------------------------------------------

    \199\ 17 U.S.C. 1506(o)(2), (p).
    \200\ MPA & RIAA Initial NPRM Comments at 7; Copyright Alliance 
et al. Initial NPRM Comments at 15; cf. Amazon Initial NPRM Comments 
at 5-6, add. at A-15 (noting that ``depositions are generally not 
permitted in small claims courts around the country and are a costly 
discovery tool'' and requesting that the Office clarify that they 
only are permitted ``upon a showing of good cause'').
---------------------------------------------------------------------------

6. Expert Disclosure
    The statute provides that ``in exceptional cases,'' the CCB may 
permit ``expert witness testimony . . . for good cause shown.'' \201\ 
The proposed rule adds that ``[t]he use of expert witnesses in 
proceedings before the Board is highly disfavored and requests shall be 
rarely granted'' and provides that the CCB will grant a request ``only 
in exceptional circumstances and upon a showing that the case cannot 
fairly proceed without the use of the expert.'' \202\ Some commenters 
proposed requiring parties to disclose any intent to use an expert 
witness at an early stage in the proceeding, whether in the claim or 
before the response.\203\ If adopted, the proposal would let parties 
weigh the costs of retaining rebuttal experts at a

[[Page 30072]]

stage when opting out or voluntarily dismissing would still be viable 
alternatives. However, the Office considers the proposed requirement 
impractical. The CCB will rarely, if ever, allow expert testimony. In 
all likelihood, parties will rarely request it, considering the typical 
costs of experts compared to the maximum damages recoverable.\204\ 
Moreover, a party often will not know if it needs an expert until it 
sees the other side's evidence. Accordingly, although expert testimony 
will rarely be allowed, the intention to request it need not be 
disclosed at the beginning of CCB proceedings.
---------------------------------------------------------------------------

    \201\ 17 U.S.C. 1506(o)(2).
    \202\ 86 FR 69890, 69909 (proposed 37 CFR 225.1(e)).
    \203\ MPA & RIAA Initial NPRM Comments at 7-8; Copyright 
Alliance et al. Initial NPRM Comments at 21.
    \204\ See generally Fharmacy Records v. Nassar, 729 F. Supp. 2d 
865, 874, 879 (E.D. Mich. 2010) (awarding defendant costs of $10,325 
for expert musicologist and $18,142.57 for computer forensics expert 
in copyright case), aff'd, 465 F. App'x 448 (6th Cir. 2012).
---------------------------------------------------------------------------

7. Written Testimony
    Commenters requested that the CCB provide parties with 
``instructions about how to draft written testimony and what should be 
included.'' \205\ The Office intends to provide such guidance in the 
CCB Handbook, and takes note of the specific topics that commenters 
suggested for inclusion.
---------------------------------------------------------------------------

    \205\ Copyright Alliance et al. Initial NPRM Comments at 22; see 
also Authors Guild Initial NPRM Comments at 3 (``The proposed 
Handbook should explain exactly what should be provided in the 
written testimony, including documentary evidence and witness and 
party statements, in addition to providing lists of topics, sample 
documents, and forms.'').
---------------------------------------------------------------------------

    The Office is making two changes to the proposed regulations on 
written testimony to make the process more accessible to pro se 
parties. First, parties are provided 15 additional days (45 total) to 
file response testimony and 7 additional days (21 total) to file reply 
testimony.\206\ Second, the Office is streamlining the proposed 
regulations by omitting certain provisions regarding witness 
sponsorship of documentary evidence,\207\ as these are overly 
burdensome and other regulatory provisions suffice to ensure 
authentication.\208\ The Office will also be creating forms that will 
make the submission of materials with party statements easier.
---------------------------------------------------------------------------

    \206\ See 86 FR 69890, 69906 (proposed 37 CFR 222.14(a)).
    \207\ See id. (proposed 37 CFR 222.14(b)(1)(ii), (b)(2)(iv)).
    \208\ See id. at 69909 (proposed 37 CFR 225.1(a)(1)).
---------------------------------------------------------------------------

E. Hearings

    Noting that the statute appears to require virtual hearings, 
although permitting ``alternative arrangements'' for submission of 
physical or other nontestimonial evidence that cannot be presented 
virtually,\209\ the Office solicited comments on whether the statute 
can be read to allow an in-person hearing when all parties request it 
and can attend.\210\ Two commenters opined that the statute does not 
appear to permit such hearings, beyond the limited situations it 
specifically describes.\211\ Another commenter ``agree[d] with the 
Office's proposal that in-person hearings be permitted if requested by 
all parties,'' but did not cite any statutory authority for this 
position.\212\ The final rule provides for virtual proceedings, except 
as expressly described in the statute. Recognizing that the CCB is a 
new tribunal which has not yet held a hearing, the Office does not take 
a position at this time regarding whether, in exceptional 
circumstances, additional in-person proceedings may be permissible.
---------------------------------------------------------------------------

    \209\ 17 U.S.C. 1506(c)(2).
    \210\ 86 FR 69890, 69902-03.
    \211\ Copyright Alliance et al. Initial NPRM Comments at 22; 
SFWA Reply NPRM Comments at 6.
    \212\ AIPLA Initial NPRM Comments at 4.
---------------------------------------------------------------------------

    The proposed rule stated that ``[c]onferences may be held by one or 
more Officers.'' \213\ At the same time, the Office solicited comments 
in the NPRM on whether it is authorized to have Copyright Claims 
Attorneys conduct non-substantive hearings to streamline the 
proceedings.\214\ Two comments addressed the point. AIPLA commented 
that it believes such a procedure is permissible, and added, ``[a]ll 
parties should retain the right to have any given conference held by an 
Officer.'' \215\ The Copyright Alliance et al. commented ``that there 
should be a presumption that those conferences will be held by 
Officers, however Copyright Claims Attorneys should be permitted to 
hold those conferences if deemed necessary to ensure that proceedings 
are `streamlined.' '' \216\
---------------------------------------------------------------------------

    \213\ 86 FR 69890, 69905 (proposed 37 CFR 222.10(b)(2), (b)(8), 
(c)).
    \214\ Id. at 69896.
    \215\ AIPLA Initial NPRM Comments at 3.
    \216\ Copyright Alliance et al. Initial NPRM Comments at 18.
---------------------------------------------------------------------------

    The Office makes no changes to the final rule with respect to this 
subject. It concludes that the statute clearly describes the duties of 
the Copyright Claims Officers and those of the Copyright Claims 
Attorneys.\217\ Among other duties, Officers shall: (1) Determine the 
claims and defenses asserted by the parties; (2) rule on ``scheduling, 
discovery, evidentiary, and other matters''; (3) conduct hearings and 
conferences; and (4) make damage awards.\218\ At the same time, the 
CASE Act authorizes the Attorneys ``[t]o provide assistance to the 
Copyright Claims Officers in the administration of the duties of those 
Officers under'' the statute and ``[t]o provide assistance to members 
of the public with respect to the procedures and requirements of the 
[CCB].'' \219\ The Office is of the view that 17 U.S.C. 1503(a)(2)(A) 
and (B) provide flexibility as to how the Attorneys may assist the 
Officers and communicate with the public, including parties, regarding 
the ``procedures and requirements'' of the CCB. For example, the 
Attorneys may communicate with the parties regarding administrative, 
scheduling, or logistical matters, allowing such nonsubstantive matters 
to be resolved more quickly. If the Attorney's communication with the 
parties reveals an unresolved substantive issue or dispute, the issue 
will be referred to an Officer and a conference may be scheduled.
---------------------------------------------------------------------------

    \217\ 17 U.S.C. 1503(a)(1), (a)(2).
    \218\ Id. at 1503(a)(1)(A), (C), (E), (G)(i).
    \219\ Id. at 1503(a)(2)(A)-(B).
---------------------------------------------------------------------------

    The proposed regulation would have barred post-hearing submissions 
of additional testimony or evidence ``unless at the Board's specific 
request.'' \220\ The Copyright Alliance et al. proposed allowing such 
submissions with leave of the CCB.\221\ The Office agrees and adopts 
the proposed amendment.
---------------------------------------------------------------------------

    \220\ 86 FR 69890, 69907 (proposed 37 CFR 222.15(f)).
    \221\ Copyright Alliance et al. Initial NPRM Comments at 23.
---------------------------------------------------------------------------

    The Authors Guild argued against requiring pro se parties to 
conduct direct or cross examinations of testifying witnesses and 
suggested that the CCB conduct the questioning of witnesses 
instead.\222\ The Office notes that no parties are required to ask 
questions of witnesses, but it does not think parties should be denied 
this option just because they appear pro se. As described earlier, the 
Office envisions that any questioning of witnesses during hearings will 
be significantly less formal than in Federal court proceedings. Pro se 
parties will not be expected to master, or indeed have any familiarity 
with, evidentiary rules concerning the questioning of witnesses. 
Officers also will take an active role in managing hearings and will 
have the ability to ask their own questions of witnesses to ensure that 
testimony is fully developed.
---------------------------------------------------------------------------

    \222\ Authors Guild Initial NPRM Comments at 3.
---------------------------------------------------------------------------

    The Copyright Alliance et al. criticized the proposed rule's 
references to direct examination, cross-examination, redirect 
examination, and witness impeachment as inappropriately reliant on 
Federal

[[Page 30073]]

procedures and too procedurally complex for pro se parties.\223\ The 
Office is modifying the final rule to clarify that CCB hearings will 
not mirror Federal courtroom practices and procedures. For example, 
questioning during hearings will be significantly less formal and 
regimented than Federal hearings and trials. The CCB Handbook will also 
greatly help CCB participants through the process. In addition, unlike 
in Federal court, Copyright Claims Officers will guide participants 
through the process of a hearing, including how to submit witness 
testimony. The final rule therefore provides, using less legal jargon, 
that parties may ask questions of witnesses, and eliminates the 
provision on formal objections to evidence during a hearing. Due to the 
CCB proceeding's nature and the likelihood that there may be pro se 
participants on one or both sides, the Office does not believe that 
such a process is necessary and might be disruptive to proceedings or 
allow represented participants to take advantage of pro se 
participants.
---------------------------------------------------------------------------

    \223\ Copyright Alliance et al. Initial NPRM Comments at 8.
---------------------------------------------------------------------------

    AIPLA commented, ``[a]bsent justification, parties should not be 
permitted in CCB proceedings to rely on documents in their case-in-
chief that they failed to produce during discovery. Even if not 
produced in discovery, such documents should be permitted in rebuttal, 
consistent with federal district court practice.'' \224\ The comment is 
generally consistent with the proposed rule.\225\ However, to 
streamline the procedures, minimize legalese, and accommodate parties 
who may not be familiar with formal rules of evidence, the Office is 
modifying the final rule to provide in more direct terms that exhibits 
not submitted in written testimony may not be used at a hearing without 
leave of the CCB.
---------------------------------------------------------------------------

    \224\ AIPLA Initial NPRM Comments at 4.
    \225\ See 86 FR 69890, 69909 (proposed rule 37 CFR 222.19(e)) 
(``Exhibits not submitted as part of written testimony may be shown 
to a witness on cross-examination or redirect examination only for 
the purposes of impeachment or rehabilitation. Copies of such 
exhibits must be distributed to the Board and other parties before 
being shown, unless the Board directs otherwise.'').
---------------------------------------------------------------------------

F. Post-Determination Review

    The proposed rule included procedures related to the two levels of 
review of final CCB determinations described in the statute: 
Reconsideration by the CCB and review by the Register of 
Copyrights.\226\ The Office received no comments related to requests 
for reconsideration, and implements those regulations in the form 
proposed in the NPRM.
---------------------------------------------------------------------------

    \226\ Id. at 69915 (proposed 37 CFR pts. 230, 231); see 17 
U.S.C. 1506(w)-(x).
---------------------------------------------------------------------------

    The statute provides that a party may request review by the 
Register of Copyrights if the CCB denies that party's request for 
reconsideration.\227\ It does not expressly state whether the non-
requesting party, if it loses the reconsideration request, may request 
the Register's review.\228\ The NPRM did not provide a process for the 
non-requesting party to seek the Register's review after 
reconsideration. The Office invited comment on this issue.\229\
---------------------------------------------------------------------------

    \227\ 17 U.S.C. 1506(x).
    \228\ Id.; see also 86 FR 69890, 69903.
    \229\ 86 FR 69890, 69903.
---------------------------------------------------------------------------

    Two commenters responded.\230\ AIPLA approved of not allowing such 
review, stating, ``[o]ne purpose of the Act is to provide a simple and 
speedy process. . . . [P]ost-determination proceedings should be kept 
to a minimum. The best way to give effect to the statute as written, 
while keeping post-determination proceedings to a minimum, is to 
restrict the Register's review to a party losing a request for 
reconsideration.'' \231\ On the other hand, Sergey Vernyuk questioned 
the fairness in denying the ability to seek the Register's review to a 
party who initially received a favorable determination only to have it 
reversed on reconsideration.\232\ He proposed that a non-requesting 
party that loses on reconsideration could seek reconsideration itself, 
``and if that second reconsideration request is denied . . . then at 
that point both parties had sought reconsideration and can thus seek 
the Register's review.'' \233\
---------------------------------------------------------------------------

    \230\ Sergey Vernyuk Initial NPRM Comments at 2; AIPLA Initial 
NPRM Comments at 5.
    \231\ AIPLA Initial NPRM Comments at 5.
    \232\ Sergey Vernyuk Initial NPRM Comments at 2.
    \233\ Id.
---------------------------------------------------------------------------

    The Office agrees that it would be unfair if a party who had 
initially prevailed, but subsequently finds itself on the losing side 
after a request for reconsideration, had no recourse. Under the 
statute, the CCB's determination after granting reconsideration 
constitutes an ``amended final determination.'' \234\ The Office 
concludes that the party that opposed the initial request for 
reconsideration may request reconsideration or amendment by the CCB of 
the amended final determination.\235\ If that party is unsuccessful 
before the CCB, it may then request review by the Register.
---------------------------------------------------------------------------

    \234\ 17 U.S.C. 1506(w).
    \235\ Cf. id. at 1506(x) (providing that when the Register 
reviews a final determination and remands it to the CCB for 
reconsideration ``and for issuance of an amended final 
determination. Such amended final determination shall not be subject 
to further consideration or review'' by the CCB or the Register).
---------------------------------------------------------------------------

    AIPLA further commented that ``the proposed filing fee of $300 is 
appropriate for Register review. The amount is both affordable and high 
enough to discourage prolonging proceedings.'' \236\ There were no 
contrary comments. The Office is maintaining the proposed fee.
---------------------------------------------------------------------------

    \236\ AIPLA Initial NPRM Comments at 5.
---------------------------------------------------------------------------

G. Additional Considerations

1. Data Collection
    Engine recommended that the Office collect and make available data 
sets, in a transparent and anonymized fashion, including statistics on 
the number of cases filed, defaulting respondents, opt-outs, waivers of 
service of process, ``how often defaulting respondents later try to 
correct their default and either opt-out or participate,'' and ``the 
type and amount of damages awards made.'' \237\ Engine asserted that 
collecting data could assist the Office in developing procedures that 
are fair to all parties and that prevent abuse, including enabling the 
Office to identify which, if any, categories of respondents may be 
misusing the default process.\238\ As one of the four overarching goals 
in Copyright Office's recently released Strategic Plan 2022-2026, the 
Office intends to ``enhance the development and use of data as an 
evidentiary foundation for policymaking and to improve measurements of 
organizational performance, and will make more data easily accessible 
to both internal and external audiences.'' \239\ Consistent with this 
goal, the CCB will be tracking data relevant to its operations 
internally and, while the scope of that data collection is still 
undetermined, the Office will ultimately issue a public report on the 
CCB that will likely include data related to its operations.
---------------------------------------------------------------------------

    \237\ Engine Initial NPRM Comments at 8.
    \238\ Id. at 5.
    \239\ U.S. Copyright Office, Strategic Plan 2022-2026, 9 (Jan. 
2022), https://www.copyright.gov/reports/strategic-plan/USCO-strategic2022-2026.pdf.
---------------------------------------------------------------------------

2. Other Issues
    The Copyright Alliance et al. pointed out that the proposed 
regulation inconsistently referred to ``attorneys'' as either included 
in, or distinct from, ``parties.'' \240\ The Office has clarified 
references in the final rule, made other modest revisions for the 
purpose of

[[Page 30074]]

clarity, and corrected typographical errors.
---------------------------------------------------------------------------

    \240\ Copyright Alliance et al. Initial NPRM Comments at 18. 
Under the CASE Act, ``party'' is defined to mean both a party and a 
party's attorney, as applicable. .'' 17 U.S.C. 1501(3).
---------------------------------------------------------------------------

H. Smaller Claims

    The CASE Act provides that the Register shall establish regulations 
to provide for the determination of ``smaller claims,'' i.e., claims in 
which total damages sought do not exceed $5,000.\241\ Such smaller 
claims must be determined by not fewer than one Copyright Claims 
Officer.\242\ The Office issued proposed rules governing smaller claims 
in its NPRM, including provisions limiting discovery to ``standard 
interrogatories, requests for admission, and the standard production of 
document requests provided by the CCB,'' prohibiting expert testimony, 
and prohibiting hearings.\243\ The Office also asked for comments 
addressing whether the proposed rule struck ``a proper balance between 
streamlining the [CCB's] process while providing the procedural 
protections available to other claims before the CCB.'' \244\
---------------------------------------------------------------------------

    \241\ 17 U.S.C. 1506(z).
    \242\ Id.
    \243\ 86 FR 69890, 69898-99, 69912-13 (Dec. 8, 2021).
    \244\ Id. at 69898-99.
---------------------------------------------------------------------------

    SFWA supported the proposed rule.\245\ MPA and RIAA and the 
Copyright Alliance et al. advocated for further streamlined procedures, 
especially for eliminating standard discovery in smaller claims 
proceedings.\246\ MPA and RIAA stated that ``permitting even the 
standard types of discovery in these `smaller' cases is too much; the 
costs involved with propounding, responding to, and potentially 
disputing discovery matters through motion practice, would quickly 
exceed the maximum $5,000 in dispute.'' \247\ The Copyright Alliance et 
al. suggested that ``[e]liminating discovery would make the [smaller] 
claims process much more attractive to claimants seeking damages awards 
of less than $5,000 and to respondents who would be much more amenable 
to participating in the small claims process (and not opting out) if 
there was no discovery.'' \248\ The Copyright Alliance et al., however, 
would allow for discovery in smaller claims proceedings ``upon a 
showing of good cause or where the CCB [O]fficers need to ask questions 
to complete the record and make a determination,'' though it would 
limit this discovery to ``only a few specific items that are relevant, 
probative, and likely to impact the outcome of the case.'' \249\
---------------------------------------------------------------------------

    \245\ SFWA Reply NPRM Comments at 5.
    \246\ MPA & RIAA Initial NPRM Comments at 3-5; Copyright 
Alliance et al. Initial NPRM Comments at 12-13.
    \247\ MPA & RIAA Initial NPRM Comments at 4.
    \248\ Copyright Alliance et al. Initial NPRM Comments at 12.
    \249\ Id. at 12.
---------------------------------------------------------------------------

    On review, the Office agrees that a more expedited and less formal 
process is appropriate for smaller claims. The final rule streamlines 
the smaller claims process by using written submissions and informal 
conferences to minimize party burdens and by allowing the presiding 
Officer to take a more active role in case management. Discovery will 
be significantly limited, if allowed at all. The extent of any 
discovery will typically be addressed at an initial conference, which 
will take the place of the pre-discovery conference held in non-smaller 
claims proceedings. The smaller claims proceeding will also allow for a 
party position statement, a merits conference to discuss the evidence 
and the issues presented, a tentative finding of facts by the presiding 
Officer, the opportunity for parties to respond to those findings, and 
a final determination. Additional details about these steps are 
provided below.
    The initial conference will allow a presiding Officer to discuss 
the claims and defenses with the parties and to determine whether any 
discovery beyond the evidence appended to the claim and response should 
be required. Consistent with the Copyright Alliance et al.'s 
suggestion,\250\ any request for the production of information or 
documents that the presiding Officer may approve will be narrowly 
tailored to the issues raised in the proceeding and highly likely to 
lead to production of relevant evidence. In addition, the presiding 
Officer will ensure that such request will not result in an undue 
burden on any party. Parties will provide the requested evidence to 
each other, along with any additional evidence they intend to use to 
support their claims and defenses.
---------------------------------------------------------------------------

    \250\ See id. (stating that discovery, when permitted, ``should 
be limited to only a few specific items that are relevant, 
probative, and likely to impact the outcome of the case'').
---------------------------------------------------------------------------

    After the exchange of evidence between the parties, each party 
shall file the evidence it wishes the presiding Officer to consider and 
may submit a written statement outlining its position, as well as 
statements from witnesses. These written statements are the only 
submissions allowed--no responsive statements will be permitted. 
Further, parties may not submit expert testimony for consideration. The 
presiding Officer will then hold a merits conference, at which the 
parties and the Officer will fully discuss the claims, counterclaims, 
defenses, and evidence. Each party will have an opportunity to respond 
to the evidence and any other submissions provided by the other party. 
The Officer may also hear from and question any witnesses present at 
the conference. After this, the Officer will issue preliminary findings 
of fact to which each party will have an opportunity to respond. The 
Officer will have the discretion to hold another conference, if 
necessary. After considering any responses to the preliminary findings 
of fact, the Officer will issue a final determination.
    In addition to these important changes, the final rule clarifies 
procedures related to the timing of the smaller claims election, 
requesting a smaller claims proceeding, and the content of the initial 
and second notice in a smaller claims proceeding. The Copyright 
Alliance et al. sought clarification about the consequences of a 
smaller claims respondent filing a counterclaim for damages above the 
smaller claims limit.\251\ Under the final rule, a counterclaim for 
damages above the smaller claims limit is not permitted. A respondent 
who is not content with a counterclaim limited to $5,000 may decline to 
use the smaller claims track and either use the standard proceeding by 
bringing a separate claim against the original claimant or bring the 
claim to Federal court.
---------------------------------------------------------------------------

    \251\ Id. at 20.
---------------------------------------------------------------------------

    Further, the rule makes clear that a claimant may change its 
election from proceeding as a smaller claim proceeding to a standard 
proceeding (or from a standard proceeding to a smaller claim 
proceeding) before service of the initial notice. If the claimant makes 
such an election, it must request an updated initial notice before 
serving the notice on a respondent.\252\
---------------------------------------------------------------------------

    \252\ The Copyright Alliance et al. stated that ``section 
1506(q) of the Copyright Act gives the claimant the ability to 
change its mind, dismiss the claim without prejudice, and refile the 
claim under the procedures for standard small claims if it decides 
that discovery is necessary.'' Id. at 12. The Office disagrees with 
any suggestion that 17 U.S.C. 1506(q) provides an independent basis 
for a claimant to voluntarily dismiss a claim after a respondent 
files a response. Section 1506(q) only allows a claimant to 
voluntarily dismiss a claim before a respondent files a response. 
See 17 U.S.C. 1506(q). Section 222.17(c) of the regulations governs 
voluntary dismissal of claims after a response is filed and only 
allows for voluntary dismissal without prejudice when either the CCB 
determines that such dismissal would be in the interests of justice 
or if the parties agree in writing.
---------------------------------------------------------------------------

    Finally, the final rule clarifies that when a claimant elects a 
smaller claims proceeding, the initial notice and second notice to the 
respondent will differ in some respects from the notices issued with 
standard claims. Smaller claims notices will indicate that the

[[Page 30075]]

claim is a smaller claim and provide a brief explanation of the 
procedural differences between smaller claims and standard claims. 
While the Office intended to provide such information under its 
authority to ``[i]nclude any additional information'' in the initial or 
second notices,\253\ it makes sense to make this requirement explicit 
in its regulations.
---------------------------------------------------------------------------

    \253\ 37 CFR 222.3(a)(16), 222.4(a)(16).
---------------------------------------------------------------------------

    The Office believes that its updated, streamlined procedure for 
smaller claims substantially addresses commenters' concerns, will 
provide a clear alternative to both the CCB's standard proceeding and 
to Federal litigation, and will ultimately incentivize claimants to use 
the CCB's smaller claims procedures where appropriate. While this 
updated rule is a logical outgrowth of the NOI, NPRM, and public 
comments, the Office is offering the public the opportunity to submit 
additional comments on the smaller claims final regulations so it can 
determine whether they strike the proper balance between streamlining 
the smaller claims process and providing sufficient procedural 
protections to all parties.

List of Subjects

37 CFR Part 201

    Copyright, General provisions.

37 CFR Part 220

    Claims, Copyright, General.

37 CFR Parts 222, 224, and 225 Through 233

    Claims, Copyright.

Final Regulations

    For the reasons stated in the preamble, the U.S. Copyright Office 
amends chapter II, subchapters A and B, of title 37 Code of Federal 
Regulations, to read as follows:

Subchapter A--Copyright Office and Procedures

PART 201--GENERAL PROVISIONS

0
1. The general authority citation for part 201 continues to read as 
follows:

    Authority: 17 U.S.C. 702.
* * * * *

0
2. In Sec.  201.3, in table 4 to paragraph (g), add paragraph (g)(3) to 
read as follows:


Sec.  201.3  Fees for registration, recordation, and related services, 
special services, and services performed by the Licensing Section and 
the Copyright Claims Board.

* * * * *
    (g) * * *

                        Table 4 to Paragraph (g)
------------------------------------------------------------------------
                 Copyright claims board fees                    Fees ($)
------------------------------------------------------------------------
 
                                * * * * *
(3) Filing fee for review of a final CCB determination by the        300
 Register....................................................
------------------------------------------------------------------------

Subchapter B--Copyright Claims Board and Procedures

0
3. Revise part 220 to read as follows:

PART 220--

GENERAL PROVISIONS
Sec.
220.1 Definitions.
220.2 Authority and functions.
220.3 Copyright Claims Board Handbook.
220.4 Timing.
220.5 Requests, responses, and written submissions.

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


Sec.  220.1  Definitions.

    For purposes of this subchapter:
    (a) Active proceeding denotes a claim in which the claimant has 
filed proof of service and the respondent has not, within the sixty day 
opt-out period, submitted an opt-out notice to the Copyright Claims 
Board (Board).
    (b) Authorized representative means a person, other than legal 
counsel, who is authorized under this subchapter to represent a party 
before the Board.
    (c) Bad-faith conduct occurs when a party pursues a claim, 
counterclaim, or defense for a harassing or other improper purpose, or 
without a reasonable basis in law or fact. Such conduct includes any 
actions taken in support of a claim, counterclaim, or defense and may 
occur at any point during a proceeding before the Board, including 
before a proceeding becomes an active proceeding.
    (d) Default determination is a final determination issued as part 
of the default procedures set forth in 17 U.S.C. 1506(u) when the 
respondent does not participate in those procedures.
    (e) Final determination is a decision that concludes an active 
proceeding before the Board and is binding only on the participating 
parties. A final determination generally assesses the merits of the 
claims in the proceeding, except when issued to dismiss a claimant's 
claims for failure to prosecute.
    (f) Initial notice means the notice described in 17 U.S.C. 1506(g) 
that is served on a respondent in a Board proceeding along with the 
claim.
    (g) Second notice means the notice of a proceeding sent by the 
Board as described in 17 U.S.C. 1506(h).
    (h) Standard interrogatories are written questions provided by the 
Board that a party in an active proceeding must answer as part of 
discovery.
    (i) Standard requests for the production of documents are written 
requests provided by the Board requiring a party to provide documents, 
other information, or tangible evidence as part of discovery in an 
active proceeding.


Sec.  220.2   Authority and functions.

    The Copyright Claims Board (Board) is an alternative forum to 
Federal court in which parties may voluntarily seek to resolve certain 
copyright-related claims regarding any category of copyrighted work, as 
provided in chapter 15 of title 17 of the United States Code. The 
Board's proceedings are governed by title 17 of the United States Code 
and the regulations in this subchapter.


Sec.  220.3   Copyright Claims Board Handbook.

    The Copyright Claims Board may issue a handbook explaining the 
Board's practices and procedures. The handbook may be viewed on, 
downloaded from, or printed from the Board's website. The handbook will 
not override any existing statute or regulation.


Sec.  220.4   Timing.

    When the start or end date for calculating any deadline set forth 
in this subchapter falls on a weekend or a Federal holiday, the start 
or end date shall be extended to the next Federal workday. Any document 
subject to a deadline must be either submitted to the Board's 
electronic filing system (eCCB) by 11:59 p.m. Eastern Time on the date 
of the deadline or dispatched by the date of the deadline.


Sec.  220.5   Requests, responses, and written submissions.

    (a) Requests and responses submitted through fillable form. Unless 
this subchapter provides otherwise or the Board orders otherwise, 
documents listed under this subsection shall be submitted through a 
fillable form on eCCB and shall comply with the following requirements:
    (1) Tier one requests and responses. Requests and responses to 
requests which are identified under this subsection shall be filed 
through the fillable form on eCCB and be limited to 4,000 characters. 
Any party may submit a response to a request identified in this 
subsection within seven days of the filing of the request. The Board 
may deny such a request before the time to

[[Page 30076]]

submit a response expires, but the Board will not grant a request 
before the time to submit a response expires, unless the request is 
consented to by all parties. There shall be no replies from a party 
that submits a request, absent leave of the Board. Tier one requests 
and responses shall include:
    (i) Requests to amend a scheduling order and responses to such 
requests under Sec.  222.11(d)(2) of this subchapter;
    (ii) Requests for a general conference or discovery conference 
(those not involving a dispute) and responses to such requests under 
Sec.  222.11(c), Sec.  225.1(c), or Sec.  226.4(g) of this subchapter;
    (iii) Statements as to damages under Sec.  222.15(b)(3) of this 
subchapter;
    (iv) Requests for a hearing under Sec.  222.16(c) of this 
subchapter;
    (v) Requests to withdraw claims or counterclaims under Sec.  222.17 
of this subchapter;
    (vi) Requests for a settlement conference and responses to such 
requests under Sec.  222.18(b)(2) of this subchapter;
    (vii) Requests to stay proceedings for settlement discussions or 
requests to extend the stay of proceedings for settlement discussions, 
and responses to such requests, under Sec.  222.18(f) of this 
subchapter;
    (viii) Joint requests for a dismissal under Sec.  222.18(g) of this 
subchapter;
    (ix) Requests for the standard protective order under Sec.  
222.19(a) of this subchapter;
    (x) Requests to remove a confidentiality designation and responses 
to such requests under Sec.  222.19(a)(5) of this subchapter;
    (xi) Requests for a custom protective order under Sec.  222.19(b) 
of this subchapter;
    (xii) Requests to use not previously submitted evidence at a 
hearing and responses to such requests under Sec.  222.20(d) of this 
subchapter;
    (xiii) Requests to modify the discovery schedule and responses to 
such requests under Sec.  225.1(b) of this subchapter;
    (xiv) Requests to withhold additional documents as privileged and 
responses to such requests under Sec.  225.3(g) of this subchapter;
    (xv) Requests to issue a notice regarding a missed deadline or 
requirement and responses to such requests under Sec.  227.1(a) or 
Sec.  228.2(a) of this subchapter;
    (xvi) Responses to a Board-issued notice regarding a missed 
deadline in the default context under Sec.  227.1(c) of this 
subchapter;
    (xvii) Responses to a Board-issued notice regarding a missed 
deadline in the failure to prosecute context under Sec.  228.2(c)(2) of 
this subchapter;
    (xviii) Requests to designate an official reporter for a hearing 
and responses to such requests under Sec.  229.1(d) of this subchapter;
    (xix) Requests to withdraw representation under Sec.  232.5 of this 
subchapter; and
    (xx) Requests not otherwise covered under Sec.  220.5(d).
    (2) Tier two requests and responses. Requests and responses to 
requests which are identified under this subsection shall be filed 
through the fillable form on eCCB and be limited to 10,000 characters, 
not including any permitted attachments. Any party may file a response 
within 14 days of the filing of the request or the order to show cause. 
The Board may deny a request before the time to submit a response 
expires, but the Board will not grant a request before the time to 
submit a response expires, unless the request is consented to by all 
parties. There shall be no replies from a party that submits a request, 
absent leave of the Board. Tier two requests and responses shall 
include:
    (i) Requests to amend pleadings and responses to such requests 
under Sec.  222.12(d)(2) of this subchapter;
    (ii) Requests to consolidate and responses to such requests under 
Sec.  222.13(c) of this subchapter;
    (iii) Requests to intervene by a third party and responses to such 
requests under Sec.  222.14(c) of this subchapter;
    (iv) Requests to dismiss for unsuitability and responses to such 
requests under Sec.  224.2(c) of this subchapter;
    (v) Requests for additional discovery under Sec.  225.4(a)(4) of 
this subchapter. Such requests must enter each specific additional 
discovery request (e.g., the specific interrogatories, document 
requests or requests for admission sought) within the fillable form;
    (vi) Responses to requests for additional discovery under Sec.  
225.4(a)(4) of this subchapter;
    (vii) Requests to serve requests for admission and responses to 
requests to serve requests for admission under Sec.  225.4(c) of this 
subchapter;
    (viii) Requests to be able to present an expert witness and 
responses to such requests under Sec.  225.4(b)(2) of this subchapter;
    (ix) Requests for a conference to resolve a discovery dispute under 
Sec.  225.5(b) of this subchapter. Such requests must attach any 
inadequate interrogatory responses or inadequate request for admission 
responses and may attach communications related to the discovery 
dispute or documents specifically discussed in the request related to 
the inadequacy of the document production;
    (x) Responses to requests for a conference to resolve a discovery 
dispute under Sec.  225.5(b) of this subchapter. Such responses may 
attach communications related to the discovery dispute or produced 
documents specifically pertinent to the dispute;
    (xi) Requests for sanctions and responses to such requests under 
Sec.  225.5(e)(1) of this subchapter;
    (xii) Requests for a third-party to attend a hearing and responses 
to such requests under Sec.  229.1(c) of this subchapter;
    (xiii) Responses to an order to show cause regarding bad-faith 
conduct under Sec.  232.3(b)(1) of this subchapter;
    (xiv) Requests for a conference related to alleged bad-faith 
conduct and responses to such requests under Sec.  232.3(b)(2) of this 
subchapter;
    (xv) Responses to an order to show cause regarding a pattern of 
bad-faith conduct under Sec.  232.4(b)(1) of this subchapter; and
    (xvi) Requests for a conference related to a pattern of alleged 
bad-faith conduct and responses to such requests under Sec.  
232.4(b)(2) of this subchapter.
    (b) Tier three: Uploaded written submissions. (1) Unless the Board 
orders otherwise, written submissions not identified as tier one or 
tier two requests and responses under this section shall be uploaded to 
eCCB (with the exception of settlement statements under Sec.  222.18(d) 
of this subchapter), shall comply with the applicable page limitations 
and response times set forth in this subchapter for such documents, and 
shall--
    (i) Include a title;
    (ii) Include a caption;
    (iii) Be typewritten;
    (iv) Be double-spaced, except for headings, footnotes, or block 
quotations, which may be single-spaced;
    (v) Be in 12-point type or larger; and
    (vi) Include the typed or handwritten signature of the party 
submitting the document.
    (2) Documents considered tier three submissions shall include:
    (i) Direct party statements and response party statements under 
Sec.  222.15(b)(3) of this subchapter;
    (ii) Reply party statements under Sec.  222.15(c)(3) of this 
subchapter;
    (iii) Settlement position statements under Sec.  222.18(d) of this 
subchapter;
    (iv) Requests to reconsider determinations to dismiss for 
unsuitability and responses to such requests under Sec.  224.2(b)(2) of 
this subchapter;

[[Page 30077]]

    (v) Smaller claims position statements under Sec.  226.4(d)(2)(ii) 
of this subchapter;
    (vi) Responses to smaller claims Board-proposed findings of fact 
under Sec.  226.4(e)(1);
    (vii) Claimant written direct party statement in support of default 
under Sec.  227.2(a) of this subchapter;
    (viii) Claimant response to Board determination after default that 
evidence is insufficient to find for claimant under Sec.  227.3(a)(2) 
of this subchapter;
    (ix) Response to notice of proposed default determination under 
Sec.  227.4(a) of this subchapter;
    (x) Requests to vacate a default determination and responses to 
such requests under Sec.  227.5(c) of this subchapter;
    (xi) Request to vacate a dismissal for failure to prosecute and 
responses to such requests under Sec.  228.2(e) of this subchapter;
    (xii) Requests for reconsideration under Sec.  230.2 of this 
subchapter;
    (xiii) Responses to requests for reconsideration under Sec.  230.3 
of this subchapter;
    (xiv) Requests for review by the Register of Copyrights under Sec.  
231.2 of this subchapter; and
    (xv) Responses to requests for review by the Register of Copyrights 
under Sec.  231.3 of this subchapter.
    (c) Replies. Other than written testimony submitted pursuant to 
Sec.  222.15 of this subchapter, replies to any responses to requests 
or written submissions shall not be permitted, unless otherwise 
provided for in this subchapter or permitted by the Board.
    (d) Other requests and responses. Any requests to the Board not 
specified in this part can be submitted by filing a request not 
otherwise covered under paragraph (a)(1) of this section. Depending on 
the nature of the request, the Board shall advise the parties whether 
the request is permitted and, if so, if and by when the response must 
be filed.

PART 222--PROCEEDINGS

0
4. The authority citation for part 222 continues to read as follows:

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


0
5. Add Sec.  222.1 to read as follows:


Sec.  222.1   Applicability of the Federal Rules of Civil Procedure and 
Federal Rules of Evidence.

    The rules of procedure and evidence governing proceedings before 
the Copyright Claims Board (Board) are set forth in this subchapter. 
The Board is not bound by the Federal Rules of Civil Procedure or the 
Federal Rules of Evidence.

0
6. In Sec.  222.3:
0
a. In paragraph (a)(15), remove ``and'';
0
b. Redesignate paragraph (a)(16) as paragraph (a)(17); and
0
c. Add a new paragraph (a)(16).
    The adition reads as follows:


Sec.  222.3  Initial notice.

    (a) * * *
    (16) In the case of a proceeding in which the claimant has 
requested under Sec.  222.2(c)(1) that the proceeding be conducted as a 
smaller claim under 37 CFR part 226, include a statement that the 
proceeding shall be conducted as a smaller claim and a brief 
explanation of the differences between smaller claims proceedings and 
other proceedings before the Board; and
* * * * *

0
7. Amend Sec.  222.4 as follows:
0
a. In paragraph (a)(15), remove ``and'';
0
b. Redesignate paragraph (a)(16) as paragraph (a)(17); and
0
c. Add a new paragraph (a)(16).
    The addition reads as follows:


Sec.  222.4   Second notice.

    (a) * * *
    (16) In the case of a proceeding in which the claimant has 
requested under Sec.  222.2(c)(1) that the proceeding be conducted as a 
smaller claim under 37 CFR part 226, include a statement that the 
proceeding shall be conducted as a smaller claim and a brief 
explanation of the differences between smaller claims proceedings and 
other proceedings before the Board; and
* * * * *

0
8. Amend Sec.  222.8 by revising paragraph (f) to read as follows:


Sec.  222.8   Response.

* * * * *
    (f) Failure to file response. A failure to file a response within 
the required timeframe may constitute a default 17 U.S.C. 1506(u), and 
the Board may begin proceedings in accordance with part 227 of this 
subchapter.

0
9. Amend Sec.  222.10 by revising paragraph (d) to read as follows:


Sec.  222.8   Response to counterclaim.

* * * * *
    (d) Failure to file counterclaim response. A failure to file a 
counterclaim response within the timeframe required by this section may 
constitute a default under 17 U.S.C. 1506(u), and the Board may begin 
default proceedings under part 227 of this subchapter.

0
10. Add Sec. Sec.  222.11 through 222.20 to read as follows:
Sec.
* * * * *
222.11 Scheduling order.
222.12 Amending pleadings.
222.13 Consolidation.
222.14 Additional parties.
222.15 Written testimony on the merits.
222.16 Hearings.
222.17 Withdrawal of claims; dismissal.
222.18 Settlement.
222.19 Protective orders; personally identifiable information.
222.20 Evidence.


Sec.  222.11   Scheduling order.

    (a) Timing. Upon receipt of the second payment of the filing fee 
set forth in Sec.  201.3(g) of this subchapter and after completion of 
the 14-day period specified in the Board's order pursuant to Sec.  
222.7, the Board shall issue an initial scheduling order through eCCB, 
subject to Sec.  222.7(b)(1).
    (b) Content of initial scheduling order. The scheduling order shall 
include the dates or deadlines for:
    (1) Filing of a response to the claim by the respondent;
    (2) A pre-discovery conference with a Copyright Claims Officer 
(Officer) to discuss case management, including discovery, and the 
possibility of resolving the claims and any counterclaims through 
settlement;
    (3) Service of responses to standard interrogatories;
    (4) Service of documents in response to standard requests for the 
production of documents;
    (5) Requests for leave to seek additional discovery;
    (6) Close of discovery;
    (7) A post-discovery conference with an Officer to discuss further 
case management, including the possibility of resolving the claims and 
any counterclaims through settlement; and
    (8) Filing of each party's written testimony and responses, 
pursuant to Sec.  222.15.
    (c) Conferences. In addition to those identified in paragraph (b) 
of this section, the Board may hold additional conferences, at its own 
election or at the request of any party. Requests for a conference and 
any responses thereto shall follow the procedures set forth in Sec.  
220.5(a)(1) of this subchapter. All conferences shall be held 
virtually.
    (d) Amended scheduling order. The Board may amend the initial 
scheduling order--
    (1) Upon the clearance of a counterclaim by a Copyright Claims 
Attorney pursuant to Sec.  224.1(c)(1) of this subchapter, to add a 
deadline for the service of a response by a claimant to a counterclaim 
and to amend other previously scheduled dates in the prior scheduling 
order;

[[Page 30078]]

    (2) Upon request of one or more of the parties to an active 
proceeding submitted through eCCB. Requests to amend the scheduling 
order and any responses thereto shall follow the procedures set forth 
in Sec.  220.5(a)(1) of this subchapter;
    (3) As necessary to adjust the schedule for conferences or hearings 
or the staying of the proceeding;
    (4) As necessary to facilitate settlement pursuant to Sec.  222.18; 
or
    (5) Upon its own initiative in the interests of maintaining orderly 
administration of the Board's docket.


Sec.  222.12   Amending pleadings.

    (a) Amendments before service. A claimant who has been notified 
pursuant to Sec.  224.1(c)(2) of this subchapter that a claim does not 
comply with the applicable statutory and regulatory requirements may 
freely amend any part of the claim as part of an amended claim filed 
under 17 U.S.C. 1506(f)(1)(B). A claimant who has been notified 
pursuant to Sec.  224.1(c)(1) of this subchapter that a claim has been 
found to comply with the applicable statutory and regulatory 
requirements may freely amend the claim once as a matter of course 
prior to service. Any claim that is amended shall be submitted for 
compliance review under Sec.  224.1(a) of this subchapter.
    (b) Amendments during the opt-out period. A claimant may not amend 
a claim during the opt-out period for any respondent.
    (c) Amendment of counterclaim before response. A counterclaimant 
may freely amend its counterclaim once as a matter of course prior to 
filing of the response to the counterclaim. The filing of any amended 
counterclaim shall suspend the time for responding to the counterclaim 
and the counterclaim shall be submitted for compliance review under 
Sec.  224.1(a) of this subchapter. A counterclaimant who has been 
notified pursuant to Sec.  224.1(c)(2) of this subchapter that a 
counterclaim does not comply with the applicable statutory and 
regulatory requirements may amend any part of the counterclaim as part 
of an amended counterclaim filed under 17 U.S.C. 1506(f)(2). The 
counterclaim respondent shall file a response to the amended 
counterclaim within 30 days following compliance review approval of the 
amended counterclaim.
    (d) All other amendments. In all other cases, a party may amend its 
pleading only with the Board's leave. If the Board grants leave, any 
amendment shall be submitted for a compliance review under Sec.  
224.1(a) of this subchapter.
    (1) Time to respond. Unless the Board orders otherwise or as 
otherwise covered by this subchapter, any required response to an 
amended pleading must be made within the time remaining to respond to 
the original pleading or within 30 days after the Board's notification 
that the amended pleading is compliant, whichever is later.
    (2) Procedure for request for leave to amend. The party seeking 
leave to amend must submit a request to the Board setting forth the 
reasons why an amended pleading is appropriate. Requests for leave to 
amend and any responses thereto shall follow the procedures set forth 
in Sec.  220.5(a)(2) of this subchapter.
    (3) Standard for granting leave to amend. In determining whether to 
grant leave to amend a pleading, the Board shall grant leave if justice 
so requires after considering whether any other party will be 
prejudiced if the amendment is permitted (including the impact the 
amendment might have on a respondent's right to opt out of the 
proceeding), whether the proceedings will be unduly delayed if the 
amendment is permitted, and whether the basis for the amendment 
reasonably should have been known to the amending party before the 
pleading was served or during the time period specified in paragraph 
(a) of this section, along with any other relevant considerations. If 
leave is granted, it shall only be granted regarding the specific 
amendments described in the request.


Sec.  222.13   Consolidation.

    (a) Consolidation. If a claimant has multiple active proceedings 
against the same respondent or that arise out of the same facts and 
circumstances, the Board may consolidate the proceedings for purposes 
of conducting discovery, submitting evidence to the Board, or holding 
hearings. Consolidated proceedings shall remain separate for purposes 
of Board determinations and any damages awards.
    (b) Timing. The Board may consolidate proceedings at any time upon 
its own authority or following consideration of a request by any party, 
with reasonable notice and opportunity to be heard provided to all 
affected parties.
    (c) Procedure. The party seeking consolidation must submit a 
request to the Board setting forth the reasons for the request, 
requesting a conference with the Board and the parties from each 
affected case, and providing the Board with the docket numbers for each 
affected proceeding. Requests for consolidation and any responses 
thereto shall follow the procedures set forth in Sec.  220.5(a)(2) of 
this subchapter.
    (d) Standard for granting request. In determining whether to grant 
a request to consolidate, the Board shall balance the need for and 
benefits of consolidation with the timeliness of the request and 
whether any undue prejudice has resulted from the delay in making the 
request.


Sec.  222.14  Additional parties.

    (a) When applicable. A necessary party is a person or entity whose 
absence would prevent the Board from according complete relief among 
existing parties, or who claims an interest related to the subject of 
the proceeding such that reaching a determination in the proceeding may 
impair or impede that person's or entity's ability to protect that 
interest as a practical matter, or in whose absence an existing party 
would be subject to a substantial risk of incurring double, multiple, 
or inconsistent obligations because of that interest.
    (b) Failure to join a necessary party. At any time, any party who 
believes in good faith that a necessary party has not been joined, and 
therefore the case is unsuitable for Board proceedings, may file a 
request according to the procedures set forth in Sec. Sec.  220.5(a)(2) 
and 224.2(c) of this subchapter. Any party opposing the request may 
file a response according to the procedures set forth in Sec. Sec.  
220.5(a)(2) and 224.2(c). If the Board determines that a necessary 
party has not been joined, it shall dismiss the proceeding without 
prejudice as unsuitable for CCB proceedings pursuant to Sec.  224.2.
    (c) Intervention of a necessary party. At any time, a third party 
seeking to intervene on the ground(s)s that it is a necessary party may 
file a request setting forth the reasons for the request and requesting 
a conference with the Board. Requests to intervene and any responses 
thereto shall follow the procedures set forth in Sec.  220.5(a)(2) of 
this subchapter. After evaluating the parties' submissions, the Board 
may hold a conference between the parties to the proceeding and the 
intervening party to address the request.
    (d) Board determination. (1) If the Board determines that the 
intervening party is not a necessary party, it shall deny the request 
and resume the proceeding, unless all parties agree that the party 
should be joined.
    (2) If the Board determines that the intervening party is a 
necessary party, it shall--
    (i) Permit the intervening party to join the proceeding, if no 
party indicated

[[Page 30079]]

that it opposed the request to intervene; or
    (ii) Dismiss the proceeding without prejudice, if any party 
indicated that it opposed the request to intervene.


Sec.  222.15  Written testimony on the merits.

    (a) Timing. After the close of discovery and by the times specified 
within the scheduling order, any party asserting a claim or 
counterclaim shall file written direct testimony in support of that 
claim or counterclaim. Any party responding to a claim or counterclaim 
shall file written response testimony within 45 days following the date 
of service of written direct testimony. Any party who asserted a claim 
or counterclaim may file written reply testimony within 21 days 
following the date of service of written response testimony. All 
written testimony shall be uploaded to eCCB.
    (b) Direct and response testimony. Written direct and response 
testimony shall consist of documentary evidence and a party statement, 
and may include witness statements.
    (1) Documentary evidence. (i) Documentary evidence must be 
accompanied by a statement that lists each submitted document and 
provides a brief description of each document and how it bears on a 
claim or counterclaim; and
    (ii) Direct or response documentary evidence shall only include 
documents that were served on opposing parties pursuant to the 
scheduling order, absent leave from the Board, which shall be granted 
only for good cause.
    (2) Witness statements. A witness statement must--
    (i) Be sworn under penalty of perjury by the witness;
    (ii) Be detailed as to the substance of the witness's knowledge and 
must be organized into numbered paragraphs; and
    (iii) Contain only factual information based on the witness's 
personal knowledge and may not contain legal argument.
    (3) Party statement. A party statement--
    (i) Shall set forth the party's position as to the key facts and 
damages, as well as any position as to the law;
    (ii) Need not have a table of contents or authorities;
    (iii) Shall be limited to 12 pages, other than any optional table 
of contents or authorities, and shall meet the requirements set forth 
in Sec.  220.5(b) of this subchapter;
    (iv) For a claimant or counterclaimant seeking damages for 
copyright infringement, shall include a statement as to whether the 
party is electing to seek statutory damages or actual damages and any 
profits. Alternatively, at any stage of the proceedings, either before 
or after the submission of written testimony, a claimant or 
counterclaimant may submit a statement following the procedures set 
forth in Sec.  220.5(a)(1) of this subchapter indicating the election 
of the form of damages. This election may be changed at any time up 
until final determination by the Board; and
    (v) For a respondent or counterclaim respondent, may include a 
statement as to whether, if found liable on a claim or counterclaim, 
the party would voluntarily agree to an order to cease or mitigate any 
unlawful activity. Such an election must be made, or changed if made 
earlier, no later than the filing of the respondent's or counterclaim 
respondent's party statement, or at a hearing if one is ordered by the 
Board. Such an election may be considered in appropriate cases by the 
Board in determining an amount of damages, if any, pursuant to 17 
U.S.C. 1504. Such a statement will not be considered by the Board in 
any way in making its determination as to liability, and shall be 
considered only as to damages.
    (c) Reply testimony. Written reply testimony must be limited to 
addressing or rebutting specific evidence set forth in written response 
testimony. Written reply testimony may consist of documentary evidence, 
witness statements, and a party statement as set forth in this 
paragraph (c).
    (1) Documentary evidence. In addition to the requirements of 
paragraph (b)(1) of this section, documentary evidence presented by a 
party as part of written reply testimony must be limited to documentary 
evidence required to contradict or rebut specific evidence that was 
presented in an opposing party's written response testimony and shall 
not include any documentary evidence previously presented as part of 
the submitting party's direct testimony.
    (2) Witness statements. In addition to the requirements of 
paragraph (b)(2) of this section, a reply witness statement must be 
limited to facts not previously included in that witness's prior 
statement, and must be limited to facts that contradict or rebut 
specific evidence that was presented in an opposing party's written 
response testimony.
    (3) Party statement. A party statement in reply must be limited to 
rebutting or addressing an opposing party's written response testimony 
and may not include any discussion of the facts, the law, or damages 
that was included in that party's direct party statement. A reply party 
statement shall meet the requirements set forth in Sec.  220.5(b) of 
this subchapter and must be limited to seven pages.
    (d) Certification. All written testimony submitted to the Board 
must include a certification by the party submitting such testimony 
that it is accurate and truthful.
    (e) Request for hearing. Any party may include in a party statement 
a request for a hearing on the merits before the Board, consistent with 
Sec.  222.16.
    (f) No additional filing. Following filing of any written reply 
testimony, no further written testimony or evidence may be submitted to 
the Board, unless at the specific request of the Board or with the 
Board's leave, or as appropriate at a hearing on the merits ordered by 
the Board.


Sec.  222.16  Hearings.

    (a) Timing. In any action, the Board may hold a hearing following 
submission of each party's written direct, response, and reply 
testimony if it determines that such a hearing is appropriate or 
advisable. The Board may decide to hold a hearing on its own initiative 
or after consideration of a request for a hearing from any party.
    (b) Virtual hearings. All hearings shall be held virtually and may 
be recorded as deemed necessary by the Board.
    (c) Requesting a hearing. A request for a hearing on the merits of 
a case may be included in a party statement, pursuant to Sec.  
222.15(e), but may also be submitted following the procedures set forth 
in Sec.  220.5(a)(1) of this subchapter no later than 7 days after the 
date by which reply testimony may be submitted under Sec.  222.15(a). 
The Board, in its sole discretion, shall choose whether to hold a 
hearing, and may elect to hold a hearing absent a request from a party.
    (d) Content of request. Any request in a party statement for a 
hearing on the merits of a case shall consist of a short statement 
providing the reasons why the party believes the request should be 
granted.
    (e) Scheduling order. When the Board determines that a hearing on 
the merits of a case is appropriate, it will issue an amended 
scheduling order setting forth the date of the hearing and deadlines 
for any additional evidence requested by the Board or for a pre-hearing 
conference, if applicable.
    (f) Close of evidence. Following a hearing on the merits of a case, 
no additional written testimony or evidence may be submitted to the 
Board unless at the Board's specific request or with leave of the Board 
for good cause shown.

[[Page 30080]]

Sec.  222.17  Withdrawal of claims; dismissal.

    (a) General. A party may request to withdraw its own claim or 
counterclaim by filing a written request with the Board seeking 
withdrawal, and therefore dismissal. Such written request shall consist 
of a brief statement seeking dismissal and shall follow the procedures 
set forth in Sec.  220.5(a)(1) of this subchapter.
    (b) Withdrawal before a response. If the written request is 
received before a response to the claim or counterclaim is filed with 
the Board, the Board shall dismiss the claim or counterclaim without 
prejudice, unless all parties agree in a written stipulation filed with 
the Board that the claim or counterclaim shall be dismissed with 
prejudice.
    (c) Withdrawal after a response. If the written request is received 
after a response to the claim or counterclaim is filed with the Board, 
the Board shall issue a final determination dismissing the claim or 
counterclaim with prejudice, unless the Board determines in the 
interests of justice that such dismissal shall be without prejudice or 
all parties agree in a written stipulation filed with the Board that 
the claim or counterclaim shall be dismissed without prejudice.
    (d) Effect of dismissal. Dismissal of a claim or counterclaim under 
this section will not affect remaining claims or counterclaims in the 
proceeding.


Sec.  222.18  Settlement.

    (a) General. The Board shall facilitate voluntary settlement 
between the parties of any claims or counterclaims. The appropriateness 
of a settlement conference, at a minimum, shall be raised by the Board 
at the pre-discovery and post-discovery conferences set forth in Sec.  
222.11(b).
    (b) Requesting a settlement conference--(1) Timing. At any point in 
an active proceeding, some or all of the parties may jointly request a 
conference with an Officer to facilitate settlement discussions.
    (2) Form and content of request. The request can be made orally at 
any Board conference or it can be made in writing. If made in writing, 
the request shall consist of a brief statement requesting a settlement 
conference and indicating which parties join in the request. Parties 
may also include a request to stay the proceedings while settlement 
discussions are ongoing. Granting a request for a stay shall be at the 
Board's discretion. Requests for a settlement conference and any 
responses thereto shall follow the procedures set forth in Sec.  
220.5(a)(1) of this subchapter.
    (c) Scheduling settlement conference. If the request for a 
settlement conference, and any request for a stay, is jointly made 
among the parties, or if no party files a response within seven days of 
the date of service of the request, the Board shall schedule a 
settlement conference with all parties subject to the request. If one 
or more parties files a response, upon consideration of the objections 
and whether any claims or counterclaims may be resolved with only the 
consenting parties in attendance, the Board may schedule a conference 
with some or all parties.
    (d) Settlement proceedings. Three days prior to a settlement 
conference, each party participating in the conference shall submit a 
position statement to the presiding Officer by email and, when there is 
agreement among the parties, send such statement to the other 
participating parties outside of eCCB. The position statement shall not 
exceed five pages, and shall attach no more than 20 pages of exhibits, 
absent leave of the presiding Officer, although leave shall not be 
necessary should the page limit be exceeded due to an exhibit being a 
necessary agreement or contract. Settlement statements shall meet the 
requirements set forth in Sec.  220.5(b) of this subchapter, but shall 
not be filed on eCCB. The statement must set forth:
    (1) A brief overview of the facts and contentions;
    (2) The relief sought, including the amount of damages, if any;
    (3) Whether or to what extent the alleged wrongful conduct is 
currently taking place; and
    (4) Any prior attempts at resolution, including any offers or 
counteroffers made to the other party.
    (e) Recusal of presiding Officer. The Officer presiding over the 
settlement conference shall not participate in rendering a 
determination in the proceeding, unless the other Officers cannot reach 
a consensus as to the determination. The presiding Officer may review 
the record and attend any hearing that is held but shall not actively 
participate in the hearing or any substantive discussion among the 
Officers concerning the proceeding or the determination, except that 
such discussions may be allowed once it is known that the other 
Officers cannot reach a consensus as to the determination.
    (f) Stay of proceeding. To provide the parties with an opportunity 
to pursue settlement and negotiate any resulting settlement agreement, 
the Board in its discretion may stay the proceeding for a period of 30 
days concurrently with an order scheduling a settlement conference, at 
the time of or following the settlement conference, or at the request 
of the parties. The parties may request an extension of the stay in 
good faith to facilitate ongoing settlement discussions. Requests to 
stay or extend a stay of the proceeding and any responses thereto shall 
follow the procedures set forth in Sec.  220.5(a)(1) of this 
subchapter. If a settlement has not been reached at the time the stay, 
or any extension thereof, has expired, the Board shall issue an amended 
scheduling order to govern the remainder of the proceeding.
    (g) Settlement agreement. If some or all parties reach a 
settlement, such parties may submit to the Board a joint request to 
dismiss some or all of the claims and counterclaims. The parties may 
include a request that the Board adopt some or all of the terms of the 
settlement in its final determination. Joint requests for dismissal 
shall follow the procedures set forth in Sec.  220.5(a)(1) of this 
subchapter.
    (h) Effect of settlement agreement. Upon receipt of a joint request 
to dismiss claims due to settlement, the Board shall dismiss the claims 
or counterclaims contemplated by the agreement with prejudice, unless 
the parties have included in their request that the claims or 
counterclaims shall be dismissed without prejudice. If the parties have 
requested that the Board adopt some or all of the terms of the 
settlement in its final determination, the Board may issue a final 
determination incorporating such terms unless the Board finds them 
clearly unconscionable.


Sec.  222.19   Protective orders; personally identifiable information.

    (a) Standard protective order. At the request of any party, the 
Board's standard protective order, as described in this section, shall 
govern all discovery material exchanged during the proceeding to 
protect against improper use or disclosure. Requests for a standard 
protective order shall follow the procedures set forth in Sec.  
220.5(a)(1) of this subchapter.
    (1) Standard of use. Discovery material received from another party 
may be used only in connection with the proceeding, and all copies must 
be returned or disposed of within 30 days of a determination or 
dismissal, or within 30 days of the exhaustion of the time for any 
review or appeal of the Board's final determination, whichever is 
later.
    (2) Confidentiality. Discovery material may be designated as 
``confidential'' only if the party reasonably and in good faith 
believes that it consists of:

[[Page 30081]]

    (i) Bona fide confidential financial information previously not 
disclosed to the public;
    (ii) Bona fide confidential and non-obvious business plans, product 
development information, or advertising or marketing plans previously 
not disclosed to the public;
    (iii) Any information of a truly personal or intimate nature 
regarding any individual not known by the public; or
    (iv) Any other category of information that the Board grants leave 
to designate as ``confidential.''
    (3) Case-by-case basis. Parties must make confidentiality 
determinations on a document-by-document basis and shall not designate 
as ``confidential'' all discovery material produced in bulk.
    (4) Submitting confidential information. Confidential discovery 
materials, or references to or discussions of confidential discovery 
materials in other documents, may be submitted to the Board by either 
filing them under seal or redacting the confidential document. If filed 
under seal, the confidential document must be accompanied by a redacted 
copy that may be included in the public record.
    (5) Determination of confidentiality by the Board. After notice and 
an opportunity for the designating party to respond, the Board in its 
discretion may remove a confidentiality designation from any material 
on its own initiative or upon consideration of a request from a party. 
Parties must attempt to resolve disputes over confidentiality 
designations before bringing such disputes to the Board. Requests to 
remove a confidentiality designation and any responses thereto shall 
follow the procedures set forth in Sec.  220.5(a)(1) of this 
subchapter.
    (b) Custom protective orders. Custom protective orders negotiated 
by the parties are disfavored. The parties may request that the Board 
enter a custom protective order that has been negotiated by the parties 
and that may provide for additional protections for highly sensitive 
materials. Such a request must be accompanied by a stipulation between 
the parties that explains the need for such a custom protective order 
and shall follow the procedures set forth in Sec.  220.5(a)(1) of this 
subchapter. The custom protective order must be attached as an exhibit 
to the request. The Board may in its discretion decide whether to grant 
the parties' request for a custom protective order.
    (c) Personally identifiable information. Regardless of whether 
discovery material has been designated as ``confidential,'' parties 
must redact social security numbers, taxpayer identification numbers, 
birth dates, health information protected by law, the names of any 
individuals known to be minors, and financial account numbers from any 
public filings.
    (d) Violations of protective order. Violations of a protective 
order may constitute bad-faith conduct pursuant to Sec.  232.3 of this 
subchapter.


Sec.  222.20   Evidence.

    (a) Admissibility. All evidence that is relevant and not unduly 
repetitious or privileged shall be admissible. Evidence which has 
authentication or credibility issues will have its weight discounted 
accordingly. The Board reserves the right to discount evidence or not 
admit evidence with serious credibility issues entirely, or to request 
clarification from a party.
    (b) Examination of witnesses. All witnesses testifying at a hearing 
before the Board shall be required to take an oath or affirmation 
before testifying. At a hearing, any member of the Board may administer 
oaths and affirmations, ask questions of any witness, and each party 
shall have the opportunity to ask questions of each witness and the 
other parties. The Board shall manage the conduct of the hearing and 
may limit the number of witnesses or scope of questioning.
    (c) Exhibits in hearing--(1) Submission. Unless they are 
specifically excluded by the Board's own initiative or due to the 
Board's ruling on an objection raised by a party, all documents 
submitted by the parties through their statements submitted under Sec.  
222.15 shall be deemed admitted and marked as exhibits in the same 
order as presented through the documentary evidence a party submitted 
with the party statement. To the extent additional documents are 
allowed by the Board at a hearing on the merits, such evidence may also 
be presented as exhibits to all parties and marked by the presenting 
party starting with the next number after the exhibits attached to the 
party's document statement.
    (2) Summary exhibits. The contents of voluminous documentary 
evidence which cannot be conveniently examined at the hearing may be 
presented in the form of a chart, summary, or calculation. Absent leave 
of the Board, evidence supporting the summary exhibit must have been 
produced to the other parties in discovery and admitted as exhibits, 
and the summary exhibit must be disclosed to the other parties in the 
proceeding at least seven days before the hearing.
    (d) New exhibits for use in cross-examination or redirect 
examination. Exhibits not submitted as part of written testimony may 
not be used at a hearing without leave of the Board. Leave to use such 
exhibits may be requested before or during the hearing. Requests to use 
an exhibit not submitted as part of written testimony and any responses 
thereto shall follow the procedures set forth in Sec.  220.5(a)(1) of 
this subchapter.

PART 224--REVIEW OF CLAIMS BY OFFICERS AND ATTORNEYS

0
11. The authority citation for part 224 continues to read as follows:

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

0
12. Amend Sec.  224.2 by revising paragraphs (b) and (c) to read as 
follows:


Sec.  224.2  Dismissal for unsuitability.

* * * * *
    (b) Dismissal by the Board for unsuitability. (1) If, upon 
recommendation by a Copyright Claims Attorney as set forth in paragraph 
(a) of this section or at any other time in the proceeding upon the 
request of a party or on its own initiative, the Board determines that 
a claim or counterclaim should be dismissed for unsuitability under 17 
U.S.C. 1506(f)(3), the Board shall issue an order stating its intention 
to dismiss the claim without prejudice.
    (2) Within 30 days following issuance of an order under paragraph 
(b) of this section, the claimant or counterclaimant may request that 
the Board reconsider its determination of unsuitability. If the 
proceeding is active, the respondent or counterclaim respondent may 
file a response within 30 days following filing of the claimant's 
request. A request or response made under this paragraph shall not 
exceed 7 pages and shall meet the requirements set forth in Sec.  
220.5(b) of this subchapter.
    (3) Following the expiration of the time for the respondent or 
counterclaim respondent to submit a response, the Board shall render 
its final decision whether to dismiss the claim for unsuitability.
    (c) Request by a party to dismiss a claim or counterclaim for 
unsuitability. At any time, any party who believes that a claim or 
counterclaim is unsuitable for determination by the Board may file a 
request that shall not exceed five pages providing the basis for such 
belief. An opposing party may file a response within 14 days setting 
forth the basis for such opposition to the request. A request or 
response made under this paragraph shall meet the requirements set 
forth in Sec.  220.5(a)(2) of this subchapter.

[[Page 30082]]


0
13. Part 225 is added to read as follows:

PART 225--DISCOVERY

Sec.
225.1 General practices.
225.2 Standard interrogatories.
225.3 Standard requests for the production of documents.
225.4 Additional discovery.
225.5 Disputes and sanctions.

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


Sec.  225.1  General practices.

    (a) Standard discovery practice. Except as otherwise provided in 
this section, discovery in proceedings before the Copyright Claims 
Board (Board) shall be limited to the methods set forth in this part 
and shall use the standard forms provided on the Board's website. 
Discovery responses and documents shall be served on the other parties 
in accordance with Sec.  222.5(e) of this subchapter and shall not be 
filed with the Board unless as part of written testimony or as needed 
in support of other filings.
    (1) Certifications. All discovery material exchanged among the 
parties must include a certification by the party submitting such 
material.
    (i) For responses to interrogatories or any requests for admission 
permitted by the Board, the certification shall affirm that the 
responses are accurate and truthful to the best of the submitting 
party's knowledge.
    (ii) For the production of documents, the certification shall 
affirm that the produced documents are genuine and unaltered to the 
best of the producing party's knowledge.
    (2) Form of requests to Board. Requests to the Board related to 
discovery may be raised to the Board during a conference or by written 
request, as set forth in this section.
    (3) Reasonable investigation. Parties shall make a reasonable 
investigation under the circumstances to adequately respond to 
discovery requests.
    (b) Timing of discovery. The exchange of discovery material shall 
take place at the times and within the deadlines specified by the 
scheduling order. The Board may modify the discovery deadlines set 
forth in the scheduling order at the request of any party upon a 
showing of good cause or on its own initiative. Such requests may be 
made orally during a conference with the Board or by written request. 
Written requests for modification of a discovery deadline and any 
responses thereto shall follow the procedures set forth in Sec.  
220.5(a)(1) of this subchapter.
    (c) Conferences. The Board shall hold a pre-discovery conference 
and a post-discovery conference, as set forth in Sec.  222.11(b) of 
this subchapter. The Board may hold additional conferences to manage 
discovery and resolve any disputes, at its own election or at the 
request of any party. Requests for a discovery conference not involving 
a dispute and any responses thereto shall follow the procedures set 
forth in Sec.  220.5(a)(1) of this subchapter. Requests for a discovery 
conference involving a dispute and any responses thereto shall follow 
the procedures set forth in Sec.  220.5(a)(2). Such conferences may be 
held by one or more Copyright Claims Officers. Conferences shall be 
held virtually.
    (d) Documents. As used in this part, the term ``document'' shall 
refer to any tangible piece of information--including writings, 
drawings, graphs, charts, photographs, sound recordings, images, and 
other data or data compilations--stored in any medium from which 
information can be obtained either directly or, if necessary, after 
translation by the responding party into a reasonably usable form, 
whether in written or electronic form, an object, or otherwise. The 
Board shall read this definition broadly so that there is a 
comprehensive production of materials by each side needed to fairly 
decide matters before the Board, so long as that production can be 
easily accomplished by a layperson.


Sec.  225.2   Standard interrogatories.

    (a) General. Parties in an active proceeding shall use the set of 
standard interrogatories provided on the Board's website. Standard 
interrogatories shall consist of information pertaining to:
    (1) The identity of witnesses whom the parties plan to use in the 
proceeding, including contact information for the witnesses, if known, 
and a brief description of the subject matter on which they may 
testify;
    (2) The identity of any other individuals who may have material 
information related to the claims or defenses, including contact 
information for the individuals, if known;
    (3) Any agreement or other relationship between the parties 
relevant to the claim;
    (4) Any harm suffered or damages sought; and
    (5) Any materially responsive documents that the party is aware 
exist or once existed, but are not in the possession of that party.
    (b) For a party asserting infringement. In addition to paragraph 
(a) of this section, the standard interrogatories for a party asserting 
an infringement claim or responding to a claim for non-infringement 
shall consist of information pertaining to:
    (1) The allegedly infringed work's copyright registration, to the 
extent such information differs from or adds to information provided in 
the claim;
    (2) For works requiring copyright formalities, the extent the 
allegedly infringed work complied with such copyright formalities;
    (3) The party's ownership of the copyright in the allegedly 
infringed work;
    (4) Publication of the allegedly infringed work;
    (5) The creation date and creation process for the allegedly 
infringed work, including whether the work is a joint or derivative 
work or was created through employment or subject to an agreement;
    (6) Where the allegedly infringed work is a derivative work, the 
preexisting elements in the work, including ownership of those 
preexisting elements, and rights to use those preexisting elements;
    (7) A description of how the party believes the alleged infringer 
gained access to the allegedly infringed work;
    (8) The basis for the party's belief that the opposing party's 
activities constitute infringement of the allegedly infringed work;
    (9) The discovery of the opposing party's alleged infringement by 
the party;
    (10) A description of any harm suffered and, to the extent known, a 
calculation of the damages requested by the party as a result of the 
alleged infringement; and
    (11) Any attempts by the party to cause the infringement to be 
ceased or mitigated prior to bringing the claim.
    (c) For a party asserting non-infringement. In addition to the 
information in paragraph (a) of this section, the standard 
interrogatories for a party responding to an infringement claim or 
asserting a claim for non-infringement shall consist of information 
pertaining to:
    (1) The party's ownership of the copyright in the allegedly 
infringing material;
    (2) The dissemination history of the allegedly infringing material;
    (3) The creation date and creation process for the allegedly 
infringing material, including whether any allegedly infringing work is 
a joint or derivative work or was created through employment or subject 
to an agreement;
    (4) Where the allegedly infringing material is a derivative work, 
the preexisting elements in the work, including ownership of those 
preexisting elements, and rights to use those preexisting elements;

[[Page 30083]]

    (5) Any information indicating that the party alleging infringement 
does not own a copyright in the allegedly infringed work;
    (6) All defenses to infringement asserted by the party and a 
detailed basis for those defenses. Defenses listed in timely answers 
and timely updated answers to the standard interrogatories shall be 
considered by the Board and will not require an amendment of the 
response to an infringement claim or an amendment of a claim for non-
infringement;
    (7) The basis for any other reasons the party believes that its 
actions do not constitute infringement;
    (8) Any continued use or dissemination of the allegedly infringing 
material; and
    (9) For a party responding to infringement claims or counterclaims, 
the revenues and profits the party has received that are directly 
related to the sale or use of the allegedly infringing material, as 
well as the deductible expenses directly related to that sale or use, 
and any elements of profit for that sale or use that the party believes 
are attributable to factors other than the copyrighted work.
    (d) For a party asserting misrepresentation. In addition to the 
information in paragraph (a) of this section, the standard 
interrogatories for a party asserting a claim of misrepresentation 
under 17 U.S.C. 512(f) shall consist of information pertaining to:
    (1) The notification or counter notification that allegedly 
contained a misrepresentation;
    (2) The identity of the internet service provider to which the 
notification or counter notification was sent;
    (3) Identification and a description of any communications with the 
internet service provider, the parties, or others related to the 
notification or counter notification at issue;
    (4) The basis for the party's belief that the notification or 
counter notification included a misrepresentation; and
    (5) The harm, including a description and calculation of damages, 
caused by the alleged misrepresentation.
    (e) For a party responding to misrepresentation claims. In addition 
to the information in paragraph (a) of this section, the standard 
interrogatories for a party responding to a claim of misrepresentation 
under 17 U.S.C. 512(f) shall consist of information pertaining to:
    (1) All defenses asserted to the misrepresentation claim and the 
basis for those assertions. Defenses listed in timely answers and 
timely updated answers to the standard interrogatories shall be 
considered by the Board and will not require an amendment of the 
response;
    (2) The basis for any other reasons the party believes that its 
statement did not constitute a misrepresentation; and
    (3) Identification and a description of any communications with the 
internet service provider, the parties, or others related to the 
notification or counter notification at issue.
    (f) Duty to update. A party has an obligation to update its 
interrogatory responses and serve updated responses on the other 
parties as soon as practicable after the discovery of new or updated 
information.


Sec.  225.3  Standard requests for the production of documents.

    (a) General. Parties in an active proceeding shall use the relevant 
set of standard requests for the production of documents provided on 
the Board's website. Standard requests for the production of documents 
shall include copies of:
    (1) All documents the party is likely to use in support of its 
claims or defenses;
    (2) All other documents of which the party is reasonably aware that 
conflict with the party's claims or defenses in the proceeding;
    (3) All documents referred to in, or that were used in preparing, 
any of the party's responses to standard interrogatories; and
    (b) For a party asserting infringement. In addition to the 
information in paragraph (a) of this section, the standard requests for 
the production of documents for a party asserting an infringement claim 
or responding to a claim for non-infringement shall include copies of:
    (1) The work claimed to be infringed, its copyright registration, 
and all correspondence with the Copyright Office regarding that 
registration;
    (2) The allegedly infringing material, if reasonably available;
    (3) Where the allegedly infringed work is a derivative work, 
documents showing the preexisting works used and related to ownership 
of and rights to use those preexisting elements;
    (4) Documents related to the allegedly infringing material, 
including communications about the allegedly infringing material;
    (5) Documents showing or negating the ownership or rights of the 
party claiming infringement in the works at issue, including agreements 
showing the ownership or transfer or rights in the works;
    (6) Documents sufficient to show the damages suffered by the party 
as a result of the alleged infringement; and
    (7) Documents showing attempts by the party to cause the cessation 
or mitigation of infringement prior to bringing the claim.
    (c) For a party asserting non-infringement. In addition to the 
information in paragraph (a) of this section, the standard requests for 
the production of documents for a party responding to an infringement 
claim or asserting a claim for non-infringement shall include copies 
of:
    (1) The allegedly infringing material;
    (2) Documents related to the allegedly infringed work, including 
communications regarding the allegedly infringed work;
    (3) Documents related to the creation of the allegedly infringing 
material, including documents showing or negating rights to use the 
allegedly infringing material; and
    (4) For a party responding to infringement claims or counterclaims, 
documents sufficient to show the revenues and profits the party has 
received directly related to the sale or use of the allegedly 
infringing material, as well as the deductible expenses directly 
related to that sale or use, and the elements of profit for that sale 
or use that the party believes are attributable to factors other than 
the copyrighted work.
    (d) For a party asserting misrepresentation. In addition to the 
information in paragraph (a) of this section, the standard requests for 
the production of documents for a party asserting a claim of 
misrepresentation under 17 U.S.C. 512(f) shall include copies of:
    (1) The notification or counter notification at issue;
    (2) Communications with the internet service provider concerning 
the notification or counter notification at issue;
    (3) Documents directly pertaining to the truth or falsity of any 
representations made in the notification or counter notification; and
    (4) Documents sufficient to show the damages suffered by the party 
as a result of the alleged misrepresentation.
    (e) For party responding to misrepresentation claims. In addition 
to the information in paragraph (a) of this section, the standard 
requests for the production of documents for a party responding to a 
claim of misrepresentation under 17 U.S.C. 512(f) shall include copies 
of:
    (1) Communications with the internet service provider concerning 
the notification or counter notification at issue; and
    (2) Documents directly pertaining to the truth or falsity of any

[[Page 30084]]

representations made in the notification or counter notification.
    (f) Document searches and productions--(1) General. Each party 
shall have an obligation to conduct a reasonable search for any 
responsive documents of any files in its possession or under its 
control, including the files of any of the party's agents, employees, 
representatives, or others acting on the party's behalf who the party 
reasonably believes may have responsive documents.
    (2) Electronically stored information. Documents responsive to the 
standard requests for the production of documents, or any additional 
requests permitted by the Board, including electronically stored 
information (ESI), including emails and computer files. A reasonable 
search under the circumstances shall include the ESI of the party and 
the party's agents, employees, representatives, or others acting on the 
party's behalf who the party reasonably believes may have responsive 
documents, except that--
    (i) ESI searches need not exceed manual searches that are easily 
accomplished by a layperson; and
    (ii) Parties need not conduct searches that would reasonably 
require the assistance of third parties, such as a document vendor that 
the party would have to hire to assist with or accomplish document 
collection or storage.
    (3) Voluminous productions. Responses to document requests that 
include large amounts of irrelevant or duplicative material are 
prohibited and may constitute bad-faith conduct.
    (4) Duty to update. A party has an obligation to preserve all 
material documents and to update its production of documents by 
providing to the other parties any documents it later finds responsive 
to the Board's standard requests for the production of documents or any 
other document requests allowed by the Board as soon as practicable 
after the discovery of such documents.
    (g) Privileged documents. Confidential communications with external 
counsel or in-house counsel reflecting or seeking legal advice related 
to the merits of the proceeding shall be considered privileged and need 
not be produced or logged. Parties must seek leave of the Board to 
withhold additional documents as privileged by filing a request with 
the Board. Requests to withhold additional documents as privileged and 
any responses thereto shall follow the procedures set forth in Sec.  
220.5(a)(1) of this subchapter.


Sec.  225.4   Additional discovery.

    (a) Requests for additional discovery. Any party may request 
additional discovery within the deadlines set forth in the scheduling 
order.
    (1) Allowable discovery. Except for the standard discovery provided 
in this part, any additional discovery requested must be narrowly 
tailored to the issues at hand, not covered by the standard discovery 
set forth in this part, highly likely to lead to the production of 
information relevant to the core issues of the matter, and not result 
in an undue burden on the party responding to the request.
    (2) Standard for additional discovery. The Board will grant a 
request for additional discovery upon a showing of good cause. In 
considering a request for additional discovery, the Board shall balance 
the needs and circumstances of the case against the burden of 
additional discovery on any party, along with the amount in dispute and 
the overall goal of efficient resolution of the proceeding.
    (3) Consent from parties. Prior to filing a request for additional 
discovery, the requesting party should make reasonable efforts to 
secure the consent of, or a compromise with, the other party regarding 
the proposed additional discovery request.
    (4) Form of request. Requests for additional discovery and any 
responses thereto shall follow the procedures set forth in Sec.  
220.5(a)(2) of this subchapter. Unless otherwise specified in this 
section, a request for additional discovery must--
    (i) Specifically indicate the type of additional discovery 
requested and the information sought, including the specific requests 
themselves;
    (ii) Set forth in detail the need for the request; and
    (iii) Indicate whether the other parties consent or object to the 
request.
    (b) Requests for expert witnesses. An expert witness may be used in 
a proceeding only with leave of the Board. The use of expert witnesses 
in proceedings before the Board is highly disfavored and requests shall 
be rarely granted.
    (1) Standard for permitting expert witnesses. The Board shall grant 
a request by a party to introduce an expert witness only in exceptional 
circumstances and upon a showing that the case cannot fairly proceed 
without the use of the expert. In considering a request for an expert 
witness, the Board shall balance the needs and circumstances of the 
case, and whether the request is made by one party or jointly among the 
parties, against the burden that permitting the expert testimony would 
impose on any other party, the costs to the opposing party of retaining 
a rebuttal witness, the amount in dispute, and the overall goal of 
efficient resolution of the proceeding. If the Board grants a request 
by a party to introduce an expert witness, an opposing party shall have 
the opportunity to introduce a rebuttal expert witness as a matter of 
course within an appropriate amount of time set by the Board. The Board 
will set a schedule for the service of the expert report and any 
rebuttal report and will adjust the dates in the existing scheduling 
order as needed.
    (2) Form of request. Requests for an expert witness and any 
responses thereto shall follow the procedures set forth in Sec.  
220.5(a)(2) of this subchapter. The request must specifically indicate 
the topics of the expert's proposed testimony, the name of the proposed 
expert, and the anticipated cost of retaining the expert, and must set 
forth the basis and justifications for the request, and indicate 
whether the other parties consent or object to the request.
    (3) Form of expert testimony. Any expert testimony permitted by the 
Board shall be submitted along with the offering party's written direct 
or response testimony in the form of an expert statement. An expert 
statement must--
    (i) Be sworn under penalty of perjury by the expert witness;
    (ii) Be organized into numbered paragraphs;
    (iii) Be detailed as to the substance of the expert's opinion and 
the basis and reasons therefor;
    (iv) Disclose the facts or data considered by the expert witness in 
forming the expert witness's opinions;
    (v) Describe the expert witness's qualifications, including a list 
of all publications authored and speaking engagements in the previous 
10 years;
    (vi) Include a list of all other cases in which the expert witness 
testified as an expert at trial or by deposition during the previous 
four years; and
    (vii) Include a statement of the compensation to be paid for the 
study and testimony in the case.
    (4) Unauthorized expert testimony. Any expert testimony that is 
introduced in any way without the Board's express permission shall be 
stricken by the Board and shall not be considered in the Board's 
determination.
    (c) Requests for admission. Requests for admission may be served in 
a proceeding only with leave of the Board. Requests for admission are 
disfavored and requests to serve requests for admission may only be 
granted at the Board's discretion upon a showing of good cause. A 
request to serve requests

[[Page 30085]]

for admission, and any responses, shall follow the procedures set forth 
in paragraph (a) of this section.
    (1) Subject matter. Requests for admission may pertain to:
    (i) Facts, the application of law to fact, or opinions about 
either; and
    (ii) The genuineness of any described documents, a copy of which 
must be attached to the request for admission.
    (2) Form of requests for admission. Each matter must be separately 
stated in a request for admission in a numbered paragraph. Compound 
requests for admission shall not be permitted.
    (3) Responses to requests for admission. A response to a request 
for admission must be served by the time specified by the Board. A 
matter admitted is conclusively established unless the Board, on 
request and for good cause shown, permits the admission to be withdrawn 
or amended. If a matter is not admitted, the answer must specifically 
deny it or state in detail why the responding party cannot truthfully 
admit or deny it. A denial must fairly respond to the substance of the 
matter, and when good faith requires that a party qualify an answer or 
deny only part of a matter, the answer must specify the part admitted 
and qualify or deny the rest. The responding party may assert lack of 
knowledge or information as a reason for failing to admit or deny only 
if the party states that it has made reasonable investigation and that 
the information it knows or can readily obtain is insufficient to 
enable it to admit or deny.
    (4) Failure to respond. A matter is not automatically admitted if a 
party fails to respond to a request for admission within the required 
timeframe. However, the Board may deem it admitted in the Board's 
discretion subject to the Board's power to apply adverse inferences to 
discovery violations under 17 U.S.C. 1506(n)(3) according to the 
procedures set forth in Sec.  225.5.
    (d) Depositions. Depositions shall not be permitted in proceedings 
before the Board.


Sec.  225.5   Disputes and sanctions.

    (a) Obligation to attempt resolution. Parties shall attempt in good 
faith to resolve any discovery disputes without the involvement of the 
Board. A party must confer with an opposing party in an attempt to 
reach a resolution prior to raising any discovery dispute with the 
Board.
    (b) Request for conference to resolve dispute. If an attempt to 
resolve a discovery dispute fails, the party seeking discovery may file 
a request for a conference with the Board. Requests for conference to 
resolve a discovery dispute and any responses thereto shall follow the 
procedures set forth in Sec.  220.5(a)(2) of this subchapter. The 
request may attach communications related to the discovery dispute or 
documents specifically discussed in the request related to the 
inadequacy of the document production and shall:
    (1) Describe the dispute;
    (2) State that party's position with respect to the dispute;
    (3) Explain the attempts made to resolve the dispute without the 
involvement of the Board; and
    (4) Attach any inadequate interrogatory responses or inadequate 
request for admission responses.
    (c) Determination by Board. Following receipt of the request and 
any response, the Board may schedule a conference to address the 
discovery dispute in its discretion. One or more Officers may 
participate in the conference. During or following the conference, or, 
if no conference is held, after the Board reviews the request and any 
responses, the Board shall issue an order resolving the discovery 
dispute and, in the event of a decision in favor of the aggrieved 
party, setting a deadline for compliance.
    (d) Failure to comply with order. If a party fails to timely comply 
with the Board's discovery order, the party seeking discovery may send 
a notice to the noncompliant party giving the noncompliant party 10 
days to comply. If the noncompliant party fails to comply within 10 
days of receipt of the notice, the aggrieved party may file a request 
for sanctions with the Board.
    (e) Sanctions--(1) Form of request for sanctions. A request for 
sanctions and any response thereto shall be uploaded to eCCB and shall 
meet the requirements set forth in Sec.  220.5(a)(2) of this 
subchapter. A request for sanctions shall attach the relevant and 
allegedly inadequate discovery responses already provided by the 
opposing party, except for disputes pertaining to responses to document 
requests, and shall set forth the basis for the request.
    (2) Standard for granting request. Following receipt of a request 
for sanctions and any response from the opposing party, the Board may 
hold a conference to address the request for sanctions. In the Board's 
sole discretion and upon good cause shown, sanctions may be imposed if 
the opposing party is found to be noncompliant with the Board's 
discovery order.
    (3) Relief. Sanctions imposed for noncompliance with a discovery 
order of the Board may include an adverse inference with respect to the 
disputed facts directly related to the discovery in question against 
the noncompliant party.
    (4) Implications for award of attorneys' fees and costs. The Board 
may consider the assessment of discovery sanctions when considering the 
awarding of attorneys' fees and costs during a final determination.

0
14. Part 226 is added to read as follows:

PART 226--SMALLER CLAIMS

Sec.
226.1 General.
226.2 Requesting a smaller claims proceeding.
226.3 Effect of counterclaims on a smaller claims proceeding.
226.4 Nature of a smaller claims proceeding.

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


Sec.  226.1   General.

    When total monetary relief sought in a claim does not exceed $5,000 
(exclusive of attorneys' fees and costs), the claimant may choose to 
have the proceeding adjudicated under the procedures set forth in this 
part. The provisions of 37 CFR parts 220, 221, 223, 224, 227, 228, 229, 
230, 231, 232, 233, and 234 and 37 CFR 222.1 through 222.10, 222.17, 
and 222.19 shall also apply to proceedings adjudicated under this part 
and no other procedures other than those set forth in this part shall 
apply, unless the Copyright Claims Board (Board) decides in its 
discretion that such application or non-application would not be in the 
interest of justice.


Sec.  226.2  Requesting a smaller claims proceeding.

    A claimant may request consideration of a claim under the smaller 
claim procedures in this part at the time of filing a claim. The 
claimant may change its choice as to whether to have its claim 
considered under the smaller claim procedures at any time before 
service of the initial notice. If the claimant changes its choice, but 
the initial notice has already been issued, the claimant shall request 
reissuance of the initial notice indicating the updated choice. Once 
the claimant has served the initial notice on any respondent, the 
claimant may not amend its choice without consent of the other parties 
and leave of the Board.


Sec.  226.3  Effect of counterclaims on a smaller claims proceeding.

    Where a claimant has chosen to proceed via a smaller claims 
proceeding, a respondent only may assert a counterclaim that seeks 
total monetary relief of $5,000 or less (exclusive of attorneys' fees 
or costs).

[[Page 30086]]

Any permissible counterclaims asserted by a respondent shall be 
adjudicated under the procedures set forth in this part.


Sec.  226.4  Nature of a smaller claims proceeding.

    (a) Proceeding before a Copyright Claims Officer. A smaller claims 
proceeding shall be heard by one Copyright Claims Officer (Officer). 
One of the three Officers shall hear smaller claims proceedings on a 
rotating basis at the Board's discretion.
    (b) Initial scheduling order. Upon confirmation that a proceeding 
has become active and the claimant has paid the second payment of the 
filing fee set forth in 37 CFR 201.3(g), and after completion of the 
14-day period specified in the Board's order pursuant to Sec.  222.7 of 
this subchapter, the Board shall issue an initial scheduling order that 
shall include the dates or deadlines for filing of a response to the 
claim and any counterclaims by the respondent and an initial conference 
with the Officer presiding over the proceeding. The Board or presiding 
Officer may issue additional scheduling orders or amend the scheduling 
order at its own discretion or upon request of a party pursuant to 
Sec.  222.11(d) of this subchapter.
    (c) Initial conference--(1) In general. An initial conference will 
take the place of the pre-discovery conference held in non-smaller 
claims proceedings. During the initial conference, the presiding 
Officer shall explain the steps of the proceeding, and the parties 
shall discuss the nature of the claims and any counterclaims and 
defenses as well as the possibility of settlement with the presiding 
Officer. While the presiding Officer in a smaller claims proceeding may 
discuss settlement with the parties, if a separate settlement 
conference is held, that settlement conference shall be held before an 
Officer who is not the presiding Officer.
    (2) Discovery. During the initial conference, the presiding Officer 
shall discuss with the parties whether additional documents and 
information beyond any materials attached to the claim and response are 
necessary to reach a determination. Any order requiring documents or 
information to be produced shall be narrowly tailored to the merits of 
the proceeding and highly likely to lead to the production of 
information relevant to the core issues of the matter and not result in 
an undue burden on any party. If the presiding Officer determines that 
such documents and information are necessary, the presiding Officer 
shall order the parties to serve such documents and information on each 
other and set the date for such service to be accomplished.
    (d) Merits conference--(1) Timing of merits conference. During or 
following the initial conference, the presiding Officer shall schedule 
a conference to further discuss the merits of the case.
    (2) Submission of materials before merits conference. No later than 
14 days before the merits conference, each party--
    (i) Shall file with the presiding Officer evidence it wishes to be 
considered for the presiding Officer to decide the case as well as any 
evidence requested by the presiding Officer. All such evidence must 
have been served on the other parties to the proceeding before such 
filing, unless the evidence was received from the other side;
    (ii) May submit a written statement that set forth its positions as 
to the claims, defenses, and any counterclaims, along with any damages 
sought and the types of damages sought. Such written statement shall 
follow the procedures set forth in Sec.  220.5(b) of this subchapter 
and shall be limited to seven pages. No written responses shall be 
permitted; and
    (iii) May submit witness statements that comply with Sec.  
222.15(b)(2) of this subchapter. No later than seven days before the 
merits conference, an opposing party may request that the witness whose 
statement was submitted appear at the merits conference so that the 
party may ask the witness questions relating the witness's testimony. 
The failure of a witness to appear in response to such a request shall 
not preclude the presiding Officer from accepting the statement, but 
the presiding Officer may take the inability to question the witness 
into account when considering the weight of the witness's testimony.
    (3) Failure to submit evidence. If a party fails to submit evidence 
in accordance with the presiding Officer's request, or submits evidence 
that was not served on the other parties or provided by the other side, 
the presiding Officer may discuss such failure with the parties during 
the merits conference or may schedule a separate conference to discuss 
the missing evidence with the parties. The presiding Officer shall 
determine an appropriate remedy, if any, for the failure to submit 
evidence in accordance with the presiding Officer's request, including 
but not limited to drawing an adverse inference with respect to 
disputed facts, pursuant to 17 U.S.C. 1506(n)(3), if it would be in the 
interests of justice.
    (4) Conduct of merits conference. During the merits conference, 
each party shall have an opportunity to address the materials submitted 
by any other party and to present their position on the claims, 
defenses, and any counterclaims, along with any damages sought, if any, 
to the presiding Officer. The presiding Officer may also ask questions 
to any party or any witness.
    (e) Proposed findings of fact. Following the merits conference, the 
presiding Officer shall prepare proposed findings of fact and shall 
serve the proposed findings of fact on each party. The proposed 
findings of fact shall include any adverse inference that the presiding 
Officer is considering applying due to a failure to submit evidence 
pursuant to paragraph (d)(3) of this section. Within 21 days from the 
date the proposed findings of fact are served--
    (1) Response to proposed findings of fact. Any party may submit a 
written response to the proposed written findings of fact, including 
any adverse inferences identified by the presiding Officer. Such 
written response shall follow the procedures set forth in Sec.  
220.5(b) and be limited to five pages. Such written responses may not 
reference or attach any evidence that was not previously filed, unless 
the presiding Officer grants leave to do so. If the presiding Officer 
grants leave to reference or attach additional evidence, the other 
parties shall be provided an opportunity to respond to the new evidence 
in writing or during a conference;
    (2) Statement as to damages. To the extent the claimant or 
counterclaimant has not already made an election as to whether it is 
seeking actual damages or statutory damages, a claimant or 
counterclaimant seeking damages shall file a statement, which may be 
included in its response to the proposed findings of fact, as to 
whether the party is seeking statutory damages or actual damages and 
any profits. This election may be changed at any time up until a final 
determination; and
    (3) Statement as to voluntary agreement to stop or mitigate 
unlawful activities. A respondent or counterclaim respondent may inform 
the presiding Officer, at any time up to and including the merits 
conference, that if found liable on a claim or counterclaim, it would 
voluntarily agree to an order to cease or mitigate the unlawful 
activity. Such an election may be considered in appropriate cases by 
the presiding Officer in determining an amount of damages, if any, 
pursuant to 17 U.S.C. 1504. Such information will not be considered by 
the presiding Officer in

[[Page 30087]]

any way in making its determination as to liability, and shall be 
considered only as to damages.
    (f) Final determinations. (1) After considering the information and 
arguments provided by the parties during the merits conferences and any 
other conferences ordered by the presiding Officer, along with any 
submissions filed by the parties, the presiding Officer shall issue a 
final determination.
    (2) If, as described in Sec.  227.1 of this subchapter, a 
respondent fails to appear or participate in a proceeding brought under 
the procedures set forth in this part, the presiding Officer shall 
transfer the proceedings to proceed under the rules governing default 
proceedings under part 227 of this subchapter, which may result in a 
default determination or dismissal of the claim. If proceedings 
continue under the rules governing default proceedings under part 227, 
any default determination must be issued by no fewer than two Officers. 
If the respondent cures a missed deadline or requirement, as described 
under Sec.  227.1(c) of this subchapter, the proceeding shall resume 
under the procedures set forth in this part and the presiding Officer 
shall issue a revised scheduling order, if necessary.
    (g) Additional conferences. In its discretion or upon the request 
of any party, the presiding Officer may hold additional conferences, 
including to manage the conduct of the proceeding, address disputes 
between the parties, settlement and engage in further discussion of the 
claims, counterclaims, or defenses and supporting evidence. Requests 
for a conference and any responses thereto shall follow the procedures 
set forth in Sec.  220.5(a)(1) of this subchapter.
    (h) No expert testimony. Parties may not submit expert testimony 
for consideration. Any expert testimony submitted shall be disregarded 
by the assigned Officer.

0
15. Part 227 is added to read as follows:

PART 227--DEFAULT

Sec.
227.1 Failure by respondent or counterclaim respondent to appear or 
participate in proceeding.
227.2 Submission of evidence by claimant or counterclaimant in 
support of default determination.
227.3 Notice of proposed default determination.
227.4 Opportunity for respondent or counterclaim respondent to 
submit evidence.
227.5 Issuance of determination.

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


Sec.  227.1   Failure by respondent or counterclaim respondent to 
appear or participate in proceeding.

    (a) Notice of missed deadline or requirement. If a respondent or 
counterclaim respondent fails to file a response or fails, without 
justifiable cause, to meet any filing deadline or other requirement set 
forth in the scheduling order or other order, upon notice of a party or 
by its own initiative, the Copyright Claims Board (Board) may issue a 
notice to the respondent or counterclaim respondent following the 
missed deadline or requirement. Requests to issue a notice regarding a 
missed deadline or requirement and any responses thereto shall follow 
the procedures set forth in Sec.  220.5(a)(1) of this subchapter.
    (b) Contents of default notice--(1) First default notice. A notice 
issued under this section shall inform the respondent or counterclaim 
respondent that failure to participate in the proceeding may result in 
the Board entering a default determination against the respondent or 
counterclaim respondent, including dismissal of any counterclaims 
asserted by the defaulting respondent, and shall explain the legal 
effects of a default determination. The notice shall provide the 
respondent or counterclaim respondent with 30 days from the date of the 
notice to cure the missed deadline or requirement. The notice shall be 
issued to the respondent or counterclaim respondent through eCCB, as 
well as by mail and all known email addresses.
    (2) Second default notice. If the respondent or counterclaim 
respondent has failed to respond within 15 days after the first notice 
of the pendency of the default determination, the Board shall send a 
second notice to the respondent or counterclaim respondent according to 
the procedures set forth in paragraph (b)(1) of this section. Such 
notice shall attach the first notice and shall remind the respondent or 
counterclaim respondent that it must cure the missed deadline or 
requirement within 30 days from the date of the first notice.
    (c) Response to notice. If the respondent or counterclaim 
respondent cures the missed deadline or requirement within the time 
specified by the notice, the proceeding shall resume and the Board 
shall issue a revised scheduling order, if necessary. If the respondent 
or counterclaim respondent fails to timely cure but submits a response 
that indicates an intent to re-engage with the proceeding pursuant to 
the procedures set forth in Sec.  220.5(a)(1) of this subchapter, the 
Board shall consider the response and either provide the respondent or 
counterclaim respondent with additional time to meet the deadline or 
proceed with the default determination process. If the respondent or 
counterclaim respondent fails to cure the missed deadline or 
requirement within the time specified by the notice and does not 
otherwise respond to the notice, the Board shall require the claimant 
or counterclaimant to submit evidence in support of a default 
determination, as set forth in Sec.  227.2.
    (d) Multiple missed deadlines. A respondent or counterclaim 
respondent may cure a missed deadline according to the procedure set 
forth in this section at least twice without default being issued. If 
the respondent or counterclaim respondent misses a third deadline in 
the scheduling order without good cause, the Board may, in its 
discretion, proceed directly to requiring submission of evidence to 
proceed with a default determination as set forth in Sec.  227.2.


Sec.  227.2  Submission of evidence by claimant or counterclaimant in 
support of default determination.

    (a) General. If a respondent or counterclaim respondent fails to 
appear or ceases to participate in the proceeding and the Board elects 
to proceed to a default determination, the Board shall require the 
claimant or counterclaimant to submit written direct testimony, as set 
forth in Sec.  222.15(b) of this subchapter.
    (b) Additional evidence. Following submission of the claimant's or 
counterclaimant's written testimony in support of a default 
determination, the Board shall consider the claimant's or 
counterclaimant's submissions and may request any additional evidence 
from the claimant or counterclaimant within the claimant's or 
counterclaimant's possession.


Sec.  227.3  Notice of proposed default determination.

    (a) Consideration of evidence. Following submission of evidence by 
the claimant or counterclaimant, as set forth in Sec.  227.2, the Board 
shall review such evidence and shall determine whether it is sufficient 
to support a finding in favor of the claimant or counterclaimant under 
applicable law. As part of its review, the Board shall consider whether 
the respondent or counterclaim respondent has a meritorious defense. If 
the Board finds the evidence sufficient to support a finding in favor 
of the claimant or counterclaimant, it shall determine the

[[Page 30088]]

appropriate relief and damages, if any, to be awarded.
    (1) If the Board determines that the evidence is sufficient to 
support a finding in favor of the claimant or counterclaimant, the 
Board shall prepare a proposed default determination.
    (2) If the Board determines that the evidence is insufficient to 
support a finding in favor of the claimant or counterclaimant, the 
Board shall prepare a proposed determination dismissing the proceeding 
without prejudice and shall provide written notice of such proposed 
determination to the claimant or counterclaimant. The claimant or 
counterclaimant may submit a response to the proposed determination 
within 30 days of the date of the notice of proposed determination. 
Such response shall follow the procedures set forth in Sec.  220.5(b) 
of this subchapter and be limited to seven pages. After considering any 
response from the claimant or counterclaimant, the Board shall either 
maintain its proposed determination and dismiss the proceeding without 
prejudice or determine that the evidence is sufficient to support a 
finding in favor of the claimant or counterclaimant and prepare a 
proposed default determination.
    (b) Proposed default determination. The proposed default 
determination shall include a finding in favor of the claimant or 
counterclaimant and the damages awarded, if any. The proposed default 
determination shall also include dismissal of any counterclaims 
asserted by the defaulting respondent.
    (c) Notice to respondent or counterclaim respondent. The Board 
shall provide written notice to the respondent or counterclaim 
respondent of the pendency of the default determination and the legal 
significance of the default determination, including any liability for 
damages, if applicable, as set forth in 17 U.S.C. 1506(u)(2). The 
notice shall be accompanied by the proposed default determination and 
shall provide the respondent or counterclaim respondent 30 days, 
beginning on the date of the notice, to submit any evidence or other 
information in opposition to the proposed default determination.


Sec.  227.4  Opportunity for respondent or counterclaim respondent to 
submit evidence.

    (a) Response to notice by respondent or counterclaim respondent. 
The respondent or counterclaim respondent may submit in writing any 
evidence or information in opposition to the proposed default 
determination within 30 days of the issuance of the proposed default 
determination absent an extension of that time by the Board. The form 
of that response shall follow the procedures for written response 
testimony under Sec.  222.15(b) of this subchapter. If the respondent 
or counterclaim respondent fails to timely submit evidence but submits 
a response that indicates an intent to submit evidence in opposition to 
the proposed default determination, the Board shall consider the 
response and either provide the respondent or counterclaim respondent 
with additional time to submit evidence or proceed with issuing the 
default determination.
    (b) Response to respondent's or counterclaim respondent's 
submissions. If the respondent or counterclaim respondent provides any 
evidence or other information in response to the notice of the pending 
default determination, the other parties to the proceeding shall be 
provided an opportunity to address such a submission by following the 
procedures for written reply testimony under Sec.  222.15(c) of this 
subchapter within 21 days of the respondent's submission.
    (c) Hearings. The Board may hold a hearing related to default 
determinations at its discretion.


Sec.  227.5   Issuance of determination.

    (a) Determination after respondent or counterclaim respondent 
submits evidence. If the respondent or counterclaim respondent provides 
evidence or information as set forth in Sec.  227.4, the Board shall 
consider all submissions, including any responses to the respondent's 
or counterclaim respondent's submission. The Board then shall maintain 
or amend its proposed default determination. The resulting 
determination shall not be a default determination and instead shall be 
a final determination. The respondent or counterclaim respondent may 
not challenge such determination under 17 U.S.C. 1508(c)(1)(C) and may 
only request reconsideration pursuant to 17 U.S.C. 1506(w) and the 
procedures set forth in part 230 of this subchapter.
    (b) Determination after respondent or counterclaim respondent fails 
to respond to notice. If the respondent or counterclaim respondent 
fails to respond to the notice of pending default determination, the 
Board shall issue the proposed default determination as a final 
determination. The respondent or counterclaim respondent may only 
challenge such determination to the extent permitted under 17 U.S.C. 
1508(c) or the procedures set forth in paragraph (c) of this section.
    (c) Vacating a default determination. If additional proceedings 
have not been initiated under 17 U.S.C. 1508(c), the respondent or 
counterclaim respondent may request in writing that the default 
determination be vacated and provide the reasons why the decision 
should be vacated. A request to vacate the default determination must 
be filed within 30 days of the determination, shall be no more than 12 
pages, and shall meet the requirements set forth in Sec.  220.5(b) of 
this subchapter; and a response to that request must be filed within 30 
days of the request to vacate, shall be no more than 12 pages, and 
shall meet the requirements set forth in Sec.  220.5(b). The Board may 
vacate the default determination in the interests of justice.

0
16. Part 228 is added to read as follows:

PART 228--CLAIMANT'S FAILURE TO PROCEED

Sec.
228.1 Claimant or counterclaimant's failure to complete service.
228.2 Claimant or counterclaimant's failure to prosecute.

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


Sec.  228.1   Claimant or counterclaimant's failure to complete 
service.

    (a) Failure to serve a respondent who is not a necessary party. If 
a claimant fails to timely complete service on a respondent who is not 
a necessary party, pursuant to Sec.  222.14 of this subchapter, the 
Copyright Claims Board (Board) shall dismiss that respondent from the 
proceeding without prejudice. The proceeding shall continue against any 
remaining respondents.
    (b) Failure to serve a respondent who is a necessary party. If a 
claimant fails to timely complete service on a respondent who is a 
necessary party, pursuant to Sec.  222.14 of this subchapter, the Board 
shall dismiss the proceeding without prejudice.
    (c) Complete failure to serve respondents. For a claim to proceed, 
a claimant must complete service on at least one respondent. If a 
claimant does not timely file any proof of service, the Board shall 
dismiss the proceeding without prejudice.


Sec.  228.2  Claimant or counterclaimant's failure to prosecute.

    (a) General. If a claimant or counterclaimant fails to proceed in 
an active proceeding without justifiable cause, as demonstrated by a 
failure to meet any filing deadline or requirement set forth in the 
scheduling order or other order, upon request of a party or on its own 
initiative, the Board shall issue a notice following the missed 
deadline or

[[Page 30089]]

requirement. Requests to issue a notice regarding a missed deadline or 
requirement and any responses thereto shall follow the procedures set 
forth in Sec.  220.5(a)(1) of this subchapter.
    (b) Contents of failure to prosecute notice. (1) A notice issued 
under paragraph (a) of this section shall inform the claimant or 
counterclaimant that failure to proceed in the proceeding may result in 
the Board issuing a determination dismissing the claimant's or 
counterclaimant's claims, including an award of attorneys' fees and 
costs where appropriate, and shall explain the legal effects of such a 
determination. The notice shall provide the claimant or counterclaimant 
with 30 days, beginning on the date of the notice, to respond to the 
notice and meet the missed deadline or requirement. The notice shall be 
issued to the claimant or counterclaimant by mail and all known email 
addresses.
    (2) If the claimant or counterclaimant has failed to respond 15 
days after the notice of the failure to proceed, the Board shall send a 
second notice to the claimant or counterclaimant according to the 
procedures set forth in paragraph (b)(1) of this section. Such notice 
shall attach the first notice and shall remind the claimant or 
counterclaimant that it must respond and meet the missed deadline or 
requirement within 30 days from the date of the first notice.
    (c) Response to failure to prosecute notice. (1) If the claimant or 
counterclaimant cures the missed deadline or requirement within the 
time specified by the notice, the proceeding shall resume and the Board 
shall issue a revised scheduling order, if necessary.
    (2) If the claimant or counterclaimant fails to cure the missed 
deadline or requirement within the time specified by the notice but 
submits a response that indicates an intent to re-engage with the 
proceeding pursuant to the procedures set forth in Sec.  220.5(a)(1) of 
this subchapter, the Board shall consider the response and either 
provide the claimant or counterclaimant with additional time to cure 
the missed deadline or requirement or issue a determination dismissing 
the claims or counterclaims.
    (3) If the claimant or counterclaimant fails to cure the missed 
deadline or requirement within the time specified by the notice and 
does not otherwise respond to the notice, the Board shall issue a 
determination dismissing the claims or counterclaims.
    (d) Determination dismissing claims or counterclaims. A 
determination dismissing the claims or counterclaims for failure to 
proceed in the active proceeding shall be with prejudice and shall 
include an award of attorneys' fees and costs pursuant to Sec.  232.3 
of this subchapter, if appropriate. The claimant or counterclaimant may 
only challenge such determination to the extent permitted under 17 
U.S.C. 1508[euro] or the procedures set forth in paragraph(e) of this 
section.
    (e) Vacating a determination dismissing claims or counterclaims. If 
additional proceedings have not been initiated under 17 U.S.C. 1508(c), 
the claimant or counterclaimant may request in writing that the 
determination be vacated and provide the reasons supporting the 
request. A request to vacate the determination must be filed within 30 
days of the determination, shall be no more than 12 pages, and shall 
meet the requirements set forth in Sec.  220.5(b) of this subchapter; 
and a response to that request must be filed within 30 days of the 
request to vacate, shall be no more than 12 pages, and shall meet the 
requirements set forth in Sec.  220.5(b). The Board may vacate the 
determination of dismissal in the interests of justice.
    (f) Multiple missed deadlines. A claimant or counterclaimant may 
cure a missed deadline according to the procedure set forth in this 
section at least twice without dismissal for failure to prosecute. If 
the claimant or counterclaimant misses a third deadline in the 
scheduling order without good cause, the Board may, in its discretion, 
proceed directly to issuing a determination dismissing the claims or 
counterclaims for failure to proceed under paragraph (d) of this 
section.

0
17. Part 229 is added to read as follows:

PART 229--RECORDS AND PUBLICATION

Sec.
229.1 Access to records and proceedings.
229.2 Record certification.

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


Sec.  229.1   Access to records and proceedings.

    (a) Official written record. Submissions by parties to a proceeding 
and documents issued by the Copyright Claims Board (Board) shall 
constitute the official written record.
    (b) Access to record. Any member of the public may inspect the 
official written record through eCCB, except any materials that have 
been marked confidential pursuant to Sec.  222.19 of this subchapter.
    (c) Attendance at hearing. Attendance at a Board hearing, including 
virtual hearings, is limited to the parties to the proceeding, 
including any legal counsel or authorized representatives, and any 
witnesses, except with leave of the Board. The Board may order that a 
witness be excluded from a hearing except when a question is directed 
to the witness. A request for attendance may be made in writing. 
Requests for a third-party non-witness to attend a hearing and any 
responses thereto shall follow the procedures set forth in Sec.  
220.5(a)(2) of this subchapter.
    (d) Hearing transcript. The Board may cause a transcript of a 
hearing to be made by using an official reporter or any technology that 
is available to the Board. At the request of any party, the Board may 
designate an official reporter to attend and transcribe a hearing or to 
prepare a transcript from a recording of a hearing. Requests to 
designate an official reporter and any responses thereto shall follow 
the procedures set forth in Sec.  220.5(a)(1) of this subchapter. The 
requesting party or parties shall pay the reporter directly for the 
cost of creating an official transcript.


Sec.  229.2   Record certification.

    Upon a written request to the Records Research and Certification 
Section of the U.S. Copyright Office pursuant to 37 CFR 201.2(1), and 
payment of the appropriate fee pursuant to 37 CFR 201.3, the Board will 
certify the official record of a proceeding.

0
18. Part 230 is added to read as follows:

PART 230--REQUESTS FOR RECONSIDERATION

Sec.
230.1 General.
230.2 Request for reconsideration.
230.3 Response to request.
230.4 No new evidence.
230.5 Determination.

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


Sec.  230.1   General.

    This part prescribes rules pertaining to procedures for 
reconsideration of a final determination issued by the Copyright Claims 
Board (Board). A party may request reconsideration according to the 
procedures in this part if the party identifies a clear error of law or 
fact material to the outcome or a technical mistake.


Sec.  230.2   Request for reconsideration.

    Upon receiving a final determination from the Board, any party may 
request that the Board reconsider its determination. Such a request 
must be filed within 30 days of the determination, shall be no more 
than 12 pages, and shall meet the requirements set forth in Sec.  
220.5(b) of this subchapter. The request must identify a clear error

[[Page 30090]]

of law or fact that was material to the outcome or a technical mistake. 
The request shall not merely repeat any oral or written argument made 
to the Board as part of the proceeding but shall be specific as to the 
purported error or technical mistake that is the subject of the 
request. For the purposes of this section, the term final determination 
shall include an amended final determination.


Sec.  230.3  Response to request.

    A party opposing a request for a reconsideration may file a 
response to the request within 30 days of the date of service of the 
request. Such response shall be no more than 12 pages and shall meet 
the requirements set forth in Sec.  220.5(b) of this subchapter.


Sec.  230.4   No new evidence.

    Evidence that was not previously submitted to the Board as part of 
written testimony or at a hearing or in response to a specific request 
for evidence from the Board shall not be submitted as part of a request 
for reconsideration or a response to a request, except where the party 
demonstrates, through clear and convincing evidence, that the evidence 
was not available to that party in the exercise of reasonable diligence 
prior to the submission of written testimony or prior to the hearing.


Sec.  230.5  Determination.

    After the filing of response papers or after the time for a party 
opposing the request for reconsideration to file a response has 
elapsed, the Board shall consider the request and any response and 
shall either deny the request for reconsideration or issue an amended 
final determination. The Board will base its decision on the party's 
written submissions.

0
19. Part 231 is added to read as follows:

PART 231--REGISTER'S REVIEW

Sec.
231.1 General.
231.2 Request for Register's review.
231.3 Response to request for Register's review.
231.4 No new evidence.
231.5 Standard of review.
231.6 Determination.

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


Sec.  231.1  General.

    This part prescribes rules pertaining to procedures for review by 
the Register of Copyrights of a final determination by the Copyright 
Claims Board (Board). A party whose request for reconsideration has 
been denied under Sec.  230.5 of this subchapter may seek review of the 
final determination by the Register of Copyrights not later than 30 
days after a request for reconsideration has been denied in whole or in 
part.


Sec.  231.2  Request for Register's review.

    A party may not file for review of the Board's final determination 
by the Register of Copyrights unless it has first filed, and had 
denied, a request for reconsideration. Where the Board has denied a 
request for reconsideration, the party who requested reconsideration 
may request review of the final determination by the Register of 
Copyrights. Such a request must be filed within 30 days of the denial 
of a request for reconsideration, shall be no more than 12 pages, and 
shall meet the requirements set forth in Sec.  220.5(b) of this 
subchapter. The request must include the reasons the party believes 
there was an abuse of discretion in denying the request for 
reconsideration. The request must be accompanied by the filing fee set 
forth in 37 CFR 201.3(g)(3).


Sec.  231.3  Response to request for Register's review.

    A party opposing the request for review may file a response to the 
request for review within 30 days of the date of service of the 
request. Such response shall be no more than 12 pages and shall meet 
the requirements set forth in Sec.  220.5(b) of this subchapter. The 
request must include the reasons the party believes there was no abuse 
of discretion in denying the request for reconsideration. No reply 
filings shall be permitted.


Sec.  231.4   No new evidence.

    Evidence that was not previously submitted to the Board as part of 
written testimony or at a hearing or in response to a specific request 
for evidence from the Board shall not be submitted as part of a request 
for review or a response to a request for review.


Sec.  231.5   Standard of review.

    The Register's review shall be limited to consideration of whether 
the Board abused its discretion in denying reconsideration of the 
determination.


Sec.  231.6   Determination.

    After the filing of response papers or after the time for a party 
opposing the request for review to file a response has elapsed, the 
Register shall consider the request and any response and shall either 
deny the request for review or remand the proceeding to the Board for 
reconsideration of issues specified in the remand and for issuance of 
an amended final determination. The Register will base such a decision 
on the party's written submissions.

0
20. Part 232 is added to read as follows:

PART 232--PARTY CONDUCT

Sec.
232.1 General.
232.2 Representations to the Board.
232.3 Bad-faith conduct.
232.4 Bar on initiating and participating in claims.
232.5 Legal counsel and authorized representative conduct.

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


Sec.  232.1  General.

    (a) For purposes of this part, a participant includes all parties, 
including any legal counsel or other authorized representatives 
participating in CCB proceedings.
    (b) All participants shall act with the utmost respect for others 
and shall behave ethically and truthfully in connection with all 
submissions and appearances before the Copyright Claims Board (Board).


Sec.  232.2   Representations to the Board.

    By submitting materials or advocating positions before the Board, a 
participant certifies that to the best of the participant's knowledge, 
information, and belief, formed after a reasonable inquiry under the 
circumstances:
    (a) It is not being presented for any improper purpose;
    (b) Any legal contentions are made in good faith based on the 
participant's reasonable understanding of existing law;
    (c) Any factual contentions have evidentiary support or, if 
specifically so identified, will likely have evidentiary support after 
a reasonable opportunity for further investigation or discovery; and
    (d) Any denials of factual contentions have evidentiary support or, 
if specifically so identified, are reasonably based on belief or a lack 
of information.


Sec.  232.3   Bad-faith conduct.

    (a) General. The Board shall award costs and attorneys' fees as 
part of a determination where it is established that a participant 
engaged in bad-faith conduct, unless such an award would be 
inconsistent with the interests of justice.
    (b) Allegations of bad-faith conduct--(1) On the Board's 
initiative. On its own, and prior to a final determination, the Board 
may order a participant to show cause why certain conduct does not 
constitute bad-faith conduct. Within 14 days, the participant accused 
of bad-faith conduct shall file a response to this

[[Page 30091]]

order, which shall follow the procedures set forth in Sec.  
220.5(a)(2).
    (2) On a party's initiative. A party that in good faith believes 
that a participant has engaged in bad-faith conduct, may file a request 
for a conference with the Board, describing the alleged bad-faith 
conduct and attaching any relevant exhibits. Requests for a conference 
concerning allegations of bad-faith conduct and any responses thereto 
shall follow the procedures set forth in Sec.  220.5(a)(2) of this 
subchapter.
    (c) Establishing bad-faith conduct. After the response of an 
accused participant has been filed under paragraph (b) of this section, 
or the time to file such a response has passed, the Board shall either 
make a determination that no bad-faith conduct occurred or schedule a 
conference concerning the allegations.
    (d) Determining the award. A determination as to any award of 
attorneys' fees and costs due to bad-faith conduct shall be made as 
part of the final determination. In determining whether to award 
attorneys' fees and costs due to bad-faith conduct, and the amount of 
any such award, the Board shall consider the requests and responses 
submitted, any arguments on the issue, and the accused participant's 
behavior in other Board proceedings. Such an award shall be limited to 
an amount of not more than $5,000, unless--
    (1) The adversely affected party appeared pro se in the proceeding, 
in which case the award shall be limited to costs in an amount of not 
more than $2,500; or
    (2) Extraordinary circumstances are present, such as a demonstrated 
pattern or practice of bad-faith conduct, in which case the Board may 
award costs and attorneys' fees in excess of the limitations in this 
section.


Sec.  232.4   Bar on initiating and participating in claims.

    (a) General. A participant that has been found to have engaged in 
bad-faith conduct on more than one occasion within a 12-month period 
shall be subject to the penalties set forth in paragraph (d) of this 
section.
    (b) Allegations of multiple instances of bad-faith conduct--(1) On 
the Board's initiative. On its own, and at any point during a 
proceeding, the Board may order a participant to show cause why certain 
conduct engaged in on more than one occasion within a 12-month period 
does not constitute a pattern of bad-faith conduct. Within 14 days, 
such participant shall file a response to this order, which shall 
follow the procedures set forth in Sec.  220.5(a)(2) of this 
subchapter.
    (2) On a party's initiative. A party that in good faith believes 
that a participant has engaged in bad-faith conduct before the Board on 
more than one occasion within a 12-month period, may file a request for 
a conference with the Board at any point after a proceeding has been 
initiated. Such a request shall describe the alleged instances of bad-
faith conduct, include the CCB case numbers for any other instances of 
bad-faith conduct if known, and attach any relevant exhibits. Such a 
request filed by a respondent before the time to opt out of the 
proceeding has expired shall not operate as a waiver of that 
respondent's right to opt out of the proceeding. Requests for a 
conference concerning allegations of a pattern of bad-faith conduct and 
any responses thereto shall follow the procedures set forth in Sec.  
220.5(a)(2) of this subchapter.
    (c) Establishing a pattern of bad-faith conduct. After an accused 
participant's response has been filed under paragraph (b) of this 
section, or the time to file such a response has passed, the Board 
shall either make a determination that the participant has not engaged 
in bad-faith conduct before the Board on more than one occasion within 
a 12-month period, or shall schedule a conference concerning the 
allegations. An award of attorneys' fees or costs against an accused 
party, pursuant to Sec.  232.3, within the prior 12 months shall 
establish an instance of bad-faith conduct within the requisite time 
period. The Board may consider other evidence of bad-faith conduct by 
the accused participant that did not result in an award of attorneys' 
fees or costs pursuant to Sec.  232.3, including but not limited to, 
claims that did not proceed because they were reviewed by a Copyright 
Claims Attorney and found to be noncompliant or where proceedings were 
initiated but the respondent opted out.
    (d) Penalties. In determining whether to bar a participant from 
initiating claims or a legal counsel or authorized representative from 
participating on a party's behalf, the Board shall consider the 
requests and responses submitted by the parties, any arguments on the 
issue, and the accused participant's behavior in other Board 
proceedings. The Board shall issue its determination in writing. If the 
Board determines that the accused participant has engaged in bad-faith 
conduct on more than one occasion within a 12-month period, such 
determination shall include:
    (1) A provision that the accused participant be barred from 
initiating a claim, or in the case of a legal counsel or authorized 
representative, barred from participating on a party's behalf, before 
the Board for a period of 12 months beginning on the date on which the 
Board makes such a finding;
    (2) In the case of a pattern of bad-faith conduct by a party, 
dismissal without prejudice of any proceeding commenced by that 
claimant or respondent or by the legal counsel or authorized 
representative on behalf of a party that is still pending before the 
Board at the time the finding is made, except that an active proceeding 
shall be dismissed only if the respondent to that proceeding provides 
written consent to the dismissal; and
    (3) In the case of a pattern of bad-faith conduct by a legal 
counsel or authorized representative, a provision that the 
representative be barred from representing any party before the Board 
for a period of 12 months beginning on the date on which the Board 
makes such a finding. In deciding whether the legal counsel or 
authorized representative shall be barred from representing other 
parties in already pending proceedings, the Board may take into account 
the hardship to the parties represented by the sanctioned 
representative. If a legal counsel or authorized representative is 
barred from further representing a party in a pending claim, the Board 
will consider requests from that party asking the Board to amend the 
scheduling order or issue a stay of the pending action to allow that 
party to find other representation. Whether to amend the scheduling 
order or issue a stay shall be at the Board's discretion.


Sec.  232.5  Legal counsel and authorized representative conduct.

    (a) Notices of appearance. If a party elects to be represented by 
legal counsel or other authorized representative in a proceeding, such 
legal counsel or authorized representative, other than the legal 
counsel or authorized representative who filed the claim on the 
claimant's behalf, must file a request to link their eCCB user account 
to the case and to the party or parties in that case whom they 
represent. The legal counsel or authorized representative must make 
sure that their eCCB user account accurately contains the legal 
counsel's bar number in a State in which the legal counsel has been 
admitted to practice (if applicable), and the legal counsel or 
authorized representative's mailing address, email address, and 
telephone number. If a legal counsel or authorized representative 
wishes to withdraw its representation, the legal counsel or authorized 
representative must file a Request to Withdraw Representation.

[[Page 30092]]

    (b) Bar admissions. A legal counsel must be a member in good 
standing of the bar of the highest court of a State, the District of 
Columbia, or any territory or commonwealth of the United States. A law 
student representative must qualify under regulations governing law 
student representation of a party set forth in part 234 of this 
subchapter. The legal counsel or authorized representative must file 
with the Board a written statement under penalty of perjury that the 
legal counsel or authorized representative is currently qualified and 
is authorized to represent the party on whose behalf the legal counsel 
or authorized representative appears.
    (c) Disbarred legal counsel. Any legal counsel who has been 
disbarred by any Federal court, a court of any State, the District of 
Columbia, or any territory or commonwealth of the United States shall 
not be allowed to represent a party before the Board. If a legal 
counsel in any proceeding active or pending before the Board is 
disbarred, the legal counsel must report the disbarment to the Board 
and withdraw representation from any proceeding.
    (d) Duties toward the Board and the parties. A legal counsel or 
authorized representative has a duty of candor and impartiality toward 
the Board, and a duty of fairness toward opposing parties. In assessing 
whether a legal counsel has breached its duties, the Board shall 
consider the rules of professional conduct of the District of Columbia 
and the State in which the legal counsel practices.
    (e) Penalties for violation. Any legal counsel or authorized 
representative found to be in violation of any of the rules of conduct 
as set forth in this section, or who is otherwise found to be behaving 
unethically or inappropriately before the Board, may be barred from 
representing parties in proceedings before the Board for a period of 
twelve months.

0
21. Part 233 is added to read as follows:

PART 233--LIMITATION ON PROCEEDINGS

Sec.
233.1 General.
233.2 Limitation on proceedings.
233.3 Temporary limitations on proceedings.

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


Sec.  233.1   General.

    This part prescribes rules pertaining to the management of the 
Copyright Claims Board's (Board's) docket and prevention of abuse of 
the Board's proceedings.


Sec.  233.2   Limitation on proceedings.

    (a) Maximum number of proceedings. The number of Copyright Claims 
Board proceedings that may be filed by a claimant and the number of 
proceedings a solo practitioner or law firm may file on behalf of 
claimants in any 12-month period shall be limited in accordance with 
this section. A proceeding shall count toward the numerical limitation 
as soon as it is filed, regardless of how the proceeding is resolved, 
whether it is found to be noncompliant under Sec.  224.1 or unsuitable 
under Sec.  224.2 of this subchapter, voluntarily dismissed, or fails 
to become active due to a respondent's opt-out. Neither amendments to a 
claim, nor counterclaims filed in response to a claim shall count as 
additional claims in determining whether the limit has been reached. 
The following limitations shall apply:
    (1) A claimant, including a corporate claimant's parents, 
subsidiaries, and affiliates, shall file no more than 30 proceedings in 
any 12-month period.
    (2) A sole practitioner shall file no more than 40 CCB proceedings 
on behalf of claimants in any 12-month period.
    (3) A law firm shall file no more than 80 CCB proceedings on behalf 
of claimants in any 12-month period.
    (b) Circumvention of limit. If a claimant files a claim in excess 
of the limitation set forth in paragraph (a)(1) of this section, such 
claim shall be dismissed without prejudice. If a sole practitioner or 
legal counsel associated with a law firm files a claim in excess of the 
limitation set forth in paragraph (a)(2) or (3) of this section, the 
legal counsel or law firm at issue shall be ordered to withdraw from 
the proceeding and the Board may stay the proceeding for 60 days, which 
may be extended for good cause shown, for the claimant to retain new 
legal counsel. It may be considered bad-faith conduct under Sec.  232.3 
for a party to take any action for the sole purpose of avoiding the 
limitation on the number of proceedings that may be filed as set forth 
in this section.
    (c) Law students, law clinics, and pro bono legal services. The 
limitations in this section do not apply to law students or a law 
clinic or pro bono legal services organization with a connection to the 
participating law student's law school.


Sec.  233.3  Temporary limitations on proceedings.

    (a) Moratorium on new claims. If the Board has determined that the 
number of pending cases before it has overwhelmed the capacity of the 
Board, the Board may impose a temporary stay on the filing of claims. 
The Board shall publish an announcement of that determination on its 
website, stating the effective date of the stay, and the duration of 
the stay, not to exceed six months.
    (b) Exception to moratorium. If a claimant's statute of limitations 
under 17 U.S.C. 1504(b) is about to expire during the stay issued under 
paragraph (a) of this section, the claimant may file a claim on or 
before the statutory deadline accompanied by a declaration under 
penalty of perjury stating that the statute of limitations will expire 
during the stay and setting forth facts in support of that conclusion. 
If the Board determines that the statute of limitations likely will 
expire during the stay based on the facts set forth in the declaration, 
the Board shall hold the claim in abeyance and conduct a compliance 
review following the end of the stay.

    Dated: May 9, 2022.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.

    Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2022-10466 Filed 5-16-22; 8:45 am]
BILLING CODE 1410-30-P


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