Copyright Claims Board Now Offers Certified Final Determinations

Last week, the United States Copyright Office (USCO) published a final rule regarding the Copyright Claims Board (CCB) and how it would handle requests for certified copies of final determinations.

The rule most directly impacts parties who have been awarded damages by the CCB but have been unable to collect. Though CCB judgments are enforceable in federal court, it’s been unclear how that enforcement would work.

This new rule addresses one potential barrier: obtaining a certified copy of the final determination itself.

The rule is straightforward. It provides a new form users can submit through the CCB’s electronic filing system and sets the fee for the service at $15.

However, seeing the early demand for this feature, it appears it’s an idea whose time is past due.

The Problem and Solution

As we’ve discussed before, the Copyright Claims Board aims to be a “copyright small claims court” that hears cases with lesser damages that would likely be impractical to file in a regular court. However, the CCB’s final determinations are meant to carry legal weight, including being enforceable in a federal court if needed.

However, the process of enforcing those determinations has been unclear. One hurdle is that a federal court will require a certified copy of the decision. To date, victorious parties have not been able to order such a copy from the CCB.

One such claimant, Benjamin Bronner (Previous Coverage), won his case against Essayzoo in November 2023. In his most recent filing, he highlighted the challenge this creates.

According to Bronner, he emailed the CCB on June 6, 2024, seeking guidance on how to obtain a certified copy of the final determination. He didn’t hear back until October 4, 2024, after the CCB published the new rule.

During that four-month delay, Bronner had a notary public certify a copy of the determination printed from the website. Though that seemed satisfactory for the District Court for the District of Columbia, he’s seeking one directly from the CCB to replace it.

Now, victorious parties can file this request immediately after the final determination is issued. This will, hopefully, speed up and streamline the process of enforcing those determinations.

However, this raises a simple question: Why did it take so long to do this?

Way Too Late

Though the Copyright Claims Board still feels very new, it is rapidly approaching its 1000th case and has been active for over two years. That doesn’t count the one and a half years between the CASE Act being passed (December 2020) and the CCB opening (June 2022).

One of the core issues the CCB has to address is its enforceability. Ideally, this policy should have been in place when the CCB opened. At worst, the CCB should have implemented it before issuing any final determinations.

However, that didn’t happen, and victorious parties like Bronner have had to find workarounds for some time. It’s a simple, fundamental issue that the CCB overlooked.

To be clear, the CCB hasn’t issued many determinations. So far, the CCB has issued only 29 final determinations. Five of those are settlements, leaving just 24 actual decisions. Of those 24 decisions, 14 are default determinations. This means that the respondent did not participate in the claim at all.

Those default determinations are most likely to require some form of court enforcement. Given that one of the default determinations didn’t award damages, 13 determinations are left, and 11 claimants (likely) need to seek federal court help to enforce the judgment.

However, the CCB has just now enacted this process. Whether this was an oversight or some other issue prevented it from coming into effect now, it is way too late for many of the first people to file with the CCB.

The proof is that two of the eleven parties who won default judgments asked for a certified copy within days of the rule taking effect. That indicates a pent-up need for this service and raises questions about whether others have just given up.

Bottom Line

In general, I have had almost nothing but praise for the CCB. The fears that it would be a haven for copyright trolls never came to pass. The board’s copyright analysis has been in-depth and well-reasoned, and their handling of complex issues has been excellent overall.

This is a rare oversight for the USCO and the CCB. I was genuinely surprised to learn that this feature is just now coming online. It should have been part of the CCB from day one.

Granted, the rule itself isn’t bad. While the rule does add a small amount to the cost of filing with the CCB, the fee is reasonable and requesting it is simple. Overall, it’s a sensible rule.

The problem is the timing. The ability to enforce final determinations in federal court is one of the things that’s drawn so many to the CCB. However, obtaining a certified copy of the determination is a requirement for that enforcement. The fact that there hasn’t been a way to do that for over two years, and victors have had to find workarounds, is unacceptable.

To be clear, this is not a significant problem. It impacts a small number of claimants, and, as Bonner showed, there are workarounds. But it is still an embarrassing oversight that never should have happened.

In the end, this is a reminder that the CCB has done great work, but it’s not perfect. However, since I’ve been quick to praise the things it’s done well, I want to be equally quick to criticize its errors.

This was an ugly oversight, but I am glad to see it fixed.