Copyright Claims Board Admonishes Filer in Dubious Case

Update 8/27/2024: Shortly after this article was written, the Copyright Claims Board, in a separate case, found that Michelle Shocked had repeatedly acted in bad faith and barred her from filing claims with the board for one year. The move came after she falsified the address of a foreign respondent who was ineligible to be targeted under the CCB’s rules.

The Copyright Claims Board (CCB) has handed down another final determination. This time, it’s in the case 23-CCB-0024 Shocked v. Law Rocks.

Michelle Shocked filed the claim in January 2023 against the charity Law Rocks. Shocked claimed that the charity recorded a concert performance she had given without permission. She was seeking compensation for the case and the return of her “unlawfully produced live performance bootleg.”

This is not Shocked’s first time before the CBB or first mention on this site. In February 2024, she won a case against an online critic who had used one of her songs in a program. However, in April, she lost a case against an eBay seller selling one of her used CDs.

This case is also a significant defeat for her. Though the case had the potential to deal with complicated questions around implied licenses, the outcome hinged on a simple question: Did an infringement take place?

The answer, according to the CCB, was no. As such, it ruled in favor of Law Rocks and warned Shocked about filing dubious cases.

Background of the Case

The story begins in August 2022, when Shocked and her bandmates decided to participate in the Law Rocks Washington, DC, Event. In the run-up to the event, Law Rocks provided Shocked with various welcome packets and other information.

The event took place on October 20, 2022, and Shocked performed several of her songs. After the event, Law Rocks sent Shocked various documents about the recording and when it would be available to her.

However, Shocked said she was unaware that the concert was being recorded or that it would be uploaded to YouTube. Law Rocks opted to destroy the footage after the complaint. However, Shocked still wanted the “bootleg” video returned to her, prompting her to file with the CCB.

The case examined many different variables. First, it analyzed whether Shocked knew or should have known about the recording. The CCB found that the information was in her packets and that she hadn’t raised any objections before the event. They found that she had granted an implied license, which could not be revoked as her charity had received a cash payment for the event.

But that question ended up being largely moot. The CCB found no evidence that Law Rocks distributed or copied the video. Instead, all the evidence pointed to Law Rocks permanently destroying the footage after Shocked complained.

As such, the CCB found Law Rocks had not infringed Shocked and ruled in favor of the respondent.

An Unusual Ruling for Many Reasons

As of this writing, the CCB has handed down 29 final determinations of various types. However, this is the first determination to include a “Findings of Fact” attached to it.

The reason for this is clear: The two sides didn’t seem to agree on much during the case. In fact, in October 2023, the two sides reached a settlement in principle. However, that fell apart, and a month later, the case resumed. It makes sense for the CCB to outline what it understands to be the facts of the case.

The second noteworthy inclusion was Drew Kastner’s testimony and advice to Shocked. Kastner was both her lawyer and bandmate, but he withdrew as counsel because he could not support this case. He prophetically told Shocked, “I do not think you will win this at the CCB.” He also said that the case was not “legally supportable.”

This was in evidence submitted by Shocked.

Finally, the case strongly admonished Shocked. The CCB said, “This is a case that should not have been commenced, and Shocked has been warned about bringing meritless cases before the Board in the past.” They also said she pursued the claim “despite a total lack of factual support.”

The CCB also said that Shocked, “Should be found in bad faith and required to pay Law Rocks’ reasonable costs and attorney’s fees.” However, the CCB opted not to do that since Shocked represented herself, and Law Rocks opted not to see monetary relief.

The result is a one-sided determination condemning Shocked and ruling in favor of Law Rocks.

Additional Notes

When talking with lawyers, one of the main criticisms I hear about the CCB is that it goes too easy on self-represented claimants and respondents. I certainly understand that complaint here.

As of this writing, Shocked has filed 16 claims with the CCB. She has had mixed results. She won one case and secured settlements in two others. However, most of her concluded cases were dismissed before advancing, or the respondents opted out.

Regardless of the outcomes, she’s not a novice to the CCB. She’s easily one of the most experienced claimants before the board. She received sound legal advice not to pursue this case and did so anyway, even after reaching a settlement in principle.

I understand why the CCB opted not to award attorneys’ fees. However, not taking any action against her for filing a meritless case opens the doors for others to do the same. I might think differently if this had been her first case or even her first meritless case. But it’s not.

While I agree that the CCB needs to give self-filers a great deal of leeway for honest mistakes, the CCB admits that this case goes beyond that. Some action, even if just token in nature, seems warranted.

Bottom Line

In the end, this was a difficult case for the CCB. Both sides presented a lot of evidence and told very conflicting stories. The CCB had a mammoth task ahead of it to figure out what happened.

To that end, it seemed to do an excellent job. It focused on what was in the evidence and largely ignored statements of opinion or unsupported claims. In my mind, it also came to the right decision legally.

Simply taking a video of a performance is not an infringement in and of itself (especially with implied permission) and certainly did no harm to Shocked. The board didn’t have to weigh in on the implied license question but did so anyway, reaching an equally sensible conclusion.

All in all, it handled the case well. Though I lament it didn’t take more decisive action against the claimant for knowingly filing a dubious case, I also understand why it didn’t.

Still, this case will not help calm those who worry the CCB is being too gentle with pro se filers. It’s a common refrain, and I certainly understand it here.

Hopefully, the CCB will find a way to balance being an accessible tool for laypeople and preventing dubious cases from being filed. Other than that, the CCB did an admirable job gathering the facts and reaching a sound conclusion.