The Copyright Claims Board in 2023
The Copyright Claims Board (CCB) opened its doors on June 16, 2022. In the 199 days that followed between then and the end of the year, some 281 cases were filed with it.
We’ve analyzed many of those in great detail. This includes examining the first 100 cases filed with the CCB, an examination of how the first of those cases were ending and why many cases were being dismissed.
What we found was that many of the worst fears about the new copyright small claims court turned out to be unfounded. It was not a tool for large corporations to wield against smaller respondents, such corporations were much more likely to be the target of CCB cases rather than the filers. It was also not completely toothless, as opt-outs were far less common than many feared, at least in the early cases.
However, 2023 is a new year for the CCB the same as it is for everyone else. The board is carrying on with its work and, within the 25 full days already behind us in 2023, the CCB has already received 36 new cases this year.
So, it’s worth taking a minute to look at these cases and see what trends may be coming for the CCB in the new year.
CCB Trends to Watch
First and foremost, it doesn’t appear that the CCB is slowing down. Looking at the number of cases filed, the CCB averaged 1.41 cases per day in 2022. In 2023, that number is currently at 1.44.
However, the 2023 numbers have been bolstered by a pair of repeat litigants. Of the 36 cases filed so far, six were filed by World Media Alliance Label inc, a new filer to the CCB. Their filings include five separate cases against YouTube over allegedly ignored DMCA notices and a similar one against Apple.
Joe Hand Promotions, a company that was also a regular filer in 2022, has filed seven of the cases, each targeting various restaurants and bars that allegedly offered UFC events for public viewing without a proper license.
Beyond those, the pattern in the cases appears to be very similar to what we saw in 2022. It’s a mixture of individuals and small companies targeting a mixture of respondents that include individuals, small businesses and a handful of large corporations (including Petco and Warner Bros.)
One thing that has sped up is the number of dismissals. As of this writing, some 171 cases have been closed by the CCB, with none reaching a decision by the board itself. In November of last year, that number was just 66.
As was true last year, most cases are being closed either because of the failure to amend a complaint or failure to properly serve the respondent. While some opt-outs have happened, the vast majority of cases aren’t even getting to that point.
That said, there are several active cases. So far, 26 have reached a point where the filer has paid their second filing fee, meaning the respondent was served and did not opt out, and the case has entered the “active phase”. However, the CCB itself has not handed down any decisions and many of those cases appear to be heading toward a default due to the lack of response from the respondent.
So far, only one case has received a response from the respondent. In that case, the response was simply to concede to the claim itself.
What to Watch for Next
So far, it appears that nothing significant has changed for the CCB in the new year. It is very much on the same trajectory as it was in the closing months of 2022.
While that’s not surprising, it does mean that the board is not is not experiencing any major shifts at the moment.
However, there are still a lot of unknowns including how the court will rule on such cases, how defaults will be handled and what damages will be awarded.
Looking at the timeframe of the ongoing cases, we should have a much clearer picture of these issues between April and June of this year.
Several of the ongoing cases have deadlines in February for the respondent to answer. If the respondent doesn’t, we should start seeing default judgments shortly thereafter, with decisions on damages following that.
The process is still incredibly slow (though still much faster than a traditional lawsuit), so it’s likely that many of the “simple” cases will go on for much longer than a year.
That, in turn, may be one of the biggest questions: How long and how much cost does it take for an infringed party to get relief through the CCB. If the costs or delays are too high, it may dissuade others from using the system in the future, even if it is faster and cheaper than regular litigation.
So, with those 26 “active cases”, it’s important to watch for what the outcomes are, how much damages are awarded when they are awarded and how difficult those damages are to collect.
It’s striking to me that, even after well over half a year, we only have one case where a respondent has actually responded to a case.
While it’s likely that number will climb over the next few weeks and months as more cases reach that phase, the CCB has been plagued with cases that failed either due to incomplete/inadequate claims or due to the lack of service.
However, soon we will finally be getting answers as to what happens with the cases that make it past those phases. Early indications are that many respondents are simply defaulting, neither opting out nor responding.
By the middle of this year, we should have a good understanding of how the CCB works and its efficacy in resolving smaller copyright disputes. We should also have ideas on what changes need to be made to make it more valuable for the people it is supposed to help.