The Copyright Claims Board (CCB), better known as the “copyright small claims court”, became a part of U.S. copyright law in December 2020 with the signing of the Copyright Alternative in Small-Claims Enforcement Act (CASE Act).
After a year and a half of rule making and infrastructure building, the CCB opened its doors in June 2022. Within a month, the first 70 cases had been filed.
The goal of the CCB is to provide a practical way to address smaller claims of copyright infringement. Since, in the United States, copyright disputes are a matter for federal courts, such cases are often costly and smaller infringements or infringements where the damages may not be very high are impractical.
To that end, the CCB sets a limit on the amount of damages one can receive, $15,000 per infringement or $30,000 per case. The system is designed to be navigable by non-lawyers and, instead of a judge and/or jury, the case is heard by a panel of three officers and the entire process is held online.
As a result, a case with the CCB can be filed for just $40 with another $60 owed when and if the respondent opts in to the process and the actual case begins.
However, the process is still very new. To date only one case, which ended in a settlement, has actually been concluded. But, the CCB recently did cross the 100 case threshold and I took the opportunity to examine each of those cases in an effort to see who is filing the cases and what issues they may be facing in doing so.
To achieve that, I created a spreadsheet of the first 100 cases filed with the CCB looking at several quantifiable variables to see what I can learn about the CCB and how it is being used at this time.
Here’s a look at what I found.
Note: Though there are 100 cases, only 98 have enough information for analysis. One case was filed against child protective services and another had no documentation available at the time of analysis.
Who is Filing with the Copyright Claims Board
When looking at the claimants, the list is almost entirely made up of individuals or small companies.
The largest company present in the claimant side was Joe Hand Promotions, a company that helps bars and restaurants legally play large sporting events, including ones put on by UFC and WWE. They filed a total of 8 cases, each against venues they accuse of illegally streaming such events to their customers.
Larger companies do routinely wind up on the respondent side with those names including Apple, YouTube, Turner Broadcasting, Warner Chappell Music, Hasbro, Amazon and Spirit Halloween to name a few.
Of the cases filed, 33 were filed by an attorney or other counsel, while 65 saw the claimant represent themselves. However, only 22 of the cases opted for the smaller copyright claims court, this process further reduces damages to $5,000 per proceeding but also further reduces costs. The remaining 76 cases chose to opt for the full court.
Cases by How They Were Filed
|Smaller Claims Option||22||76|
When looking at the types of works involved, photographers and visual artists led the way with 46 of the cases filed. 16 cases involved audiovisual works (movies), 15 cases involved literary works and another 15 involved sound recordings (music). The remaining cases involved musical compositions and dramatic works, which were two apiece.
Cases by Type of Work
Interestingly, every one of the first 11 cases filed were pictorial, pointing to the idea that photographers and visual artists are the ones with the greatest pent-up demand for a new copyright enforcement solution.
Of the cases filed, only 11 involved works that were not registered with the U.S. Copyright Office. The lion’s share of cases, 84, had works that were already registered when the case was filed (Note: There are an additional three cases where the registration status is unknown).
Registration Status at the Time of Filing
|Work Not Registered||11|
|Unknown or Irrelevant||3|
Of the registrations, 49 of the registrations were before 2020 and 68 were from before 2022. Only 15 of the registrations were from this year, indicating that they were likely done specifically for this process. Seven of the registrations took place before the year 2002, making them older than 20 years.
Years of Registration from Earliest Date
Of the alleged infringements, over half (55) described that the infringement is still ongoing, with another 12 indicating that they don’t know if the infringement is ongoing. Of the remaining, 28 said that the infringement had stopped and in 3 cases the question was not relevant.
Is the Alleged Infringement Ongoing?
Statistically, the most common claimant is a photographer or visual artist that is representing themselves, rejecting the smaller claims option and targeting an ongoing infringement with a work that was registered well before the case was filed.
But how are the cases doing? Most of the cases don’t have any information at all, as the CCB has not made any determination. However, for a subset, we do have some outcomes worth examining.
How are the Copyright Claims Board Cases Going?
As of this analysis, the CCB had only made initial determinations on 27 of the 100 cases. With these determinations, the CCB doesn’t look at the merit of the claim, but only if the claim is compliant with the rules of the CCB and can be served to the respondent.
In those 26 cases, 18 were found to be compliant and 8 were found to be non-compliant. Of the 8 non-compliant cases, 4 have already had their claimant file an amended claim and, in two of those cases, the CCB has already accepted the amended claim.
Looking at the reasons these cases were (at least initially) rejected, the most common is issues with the copyright infringement claim itself, including element of access, and element of substantial similarity. However, several of the cases had multiple issues, including one that had six separate problems.
Of the 18 cases there were found to be compliant, it is an even split between those filed by lawyers and those filed by individuals, 9 apiece. Of the cases found to be not compliant, only two were filed by lawyers and one of those has already been amended and that amended claim was approved.
Was Counsel Used?
|Claim Required Amendment||2/8|
Of all 100 cases filed, only one has been successfully concluded and is marked as “closed”. That case was settled outside the CCB system, and it was dismissed without prejudice last week.
One interesting thing to note is that the cases are not being addressed in the order they were filed. Case 55, which was filed on July 14, has already been initially rejected pending an amended complaint. Similarly, Case 52, which was filed on July 12, was given the green light. However, there has been no such decision in cases 23, 24 or 25, which were all filed on June 23.
It is unclear why the responses to these cases are out of order, as the ones seemingly skipped have little, if anything, in common. However, it is important to note that, if you file a case with the CCB, it may not be addressed in the order it was received.
The Picture This Paints
The CCB is a completely new process and a new system. The first 100 cases were always going to be chaotic and likely not fully representative of how the system will be used longer term.
That said, there is still a great deal to glean.
First and foremost, the CCB is being used very much as intended. It is predominantly being used by smaller creators to file claims that, most likely, would not be viable in a traditional court. Most are filing without attorneys and, on average, those filing cases are doing reasonably well.
Though a large percentage of cases are being rejected at the first step (roughly 30%), the majority are moving forward, and that rejection rate will likely go down as familiarity with the system improves. After all, this is every claimant’s first time using the system.
Fears of large corporations using the CCB to target file sharers or small pirates has not panned out during this early phase. While the use of the CCB to target bars and restaurants is somewhat unexpected, it also makes sense within the confines of what the CCB does.
The big question now is whether respondents will opt into the system or not. Of the cases that have been approved to move ahead, the plaintiffs have been scrambling to serve the papers to the respondents and those documents are just now starting to be delivered. However, none have responded as of this analysis, and we have no idea how many will opt in or opt out of the process.
In the end, that, more than anything, will determine the success or failure of the CCB.
The first 100 cases will likely not be representative of how the CCB is used over the longer term. Even within those 100 cases, there was a notable shift that saw a greater variety of cases and a shift to more people filing for themselves.
As such, much of the future of the CCB is unwritten. This is still very much an untested and unknown system.
But the first 100 cases does tell us a great deal about whom the regular system is failing. Each one of these cases represents a person or company that would have, if it were an option, likely gone through the traditional courts.
Looking through these numbers, these aren’t people that have ignored copyright issues or failed to protect their work. Nearly all have copyright registrations, and most of those registrations are from well before the CCB was even announced.
These aren’t creators that failed the system, these are creators that the system failed.
That, if anything, should be the biggest takeaway from the early days of the CCB.