My Comments to the US Copyright Office on the Copyright Claims Board

On March 10, 2025, the United States Copyright Office (USCO) published a notice of inquiry (NOI) in the Federal Register. As a requirement of the Copyright
Alternative in Small-Claims Enforcement Act (CASE Act), the NOI seeks comment on the Copyright Claims Board (CCB) and asks for information on 10 topics.

As an avid watcher and supporter of the CCB, I have decided to submit my comments to the USCO. However, I am also publishing them here so that others can read and respond to them.

This is a very lengthy and niche post. However, I feel it’s important to be transparent, as I have done other times I’ve filed such comments. The text of my comments, with some reformatting, is below.

Comments from Jonathan Bailey

My name is Jonathan Bailey. I am the author of the website Plagiarism Today and a copyright and plagiarism expert witness/consultant at CopyByte.

I am also an avid Copyright Claims Board (CCB) watcher. I have written approximately 100 posts about the CCB, including analyses of almost every final determination, studies about how the CCB is being used, and other pieces analyzing its operation.

In general, I believe the CCB has managed to avoid the major pitfalls that detractors were concerned about following the passing of the Copyright Alternative in Small-Claims Enforcement Act (CASE Act) in 2020. 

The CCB has not become a haven for so-called copyright trolls. It has not seen widespread abuse by filers and has instead been a powerful tool for encouraging settlements and negotiation. 

However, the CCB is far from a perfect institution. The board has many challenges and areas where it could (and should) improve. Some of these areas are low-hanging fruit that would only require minor tweaks to the system. Others, however, are baked into the system and can’t be changed without a radical change to the CASE Act itself.

To efficiently answer your notice of inquiry (NOI), I will take the ten topics one at a time. If there is duplication, I may also refer to previous answers.

Topic 1 (A-I): The Use and Efficacy of the CCB in Resolving Copyright Claims, Including the Number of Proceedings the CCB Could Reasonably Administer.

A November 2024 study published in the Journal of the Copyright Society highlights what is likely the CCB’s biggest challenge. Of the 880 claims the researchers analyzed, 655 were dismissed before reaching the active phase.

This can be a positive thing in some cases. Quick settlements and resolutions account for some of those claims. However, 233 were dismissed due to non-compliant claims, and another 137 were dismissed due to a lack of service. Even claims that eventually move forward often require an amended claim to do so.

While the issue is focused on self-represented filers, it’s not limited to them. This system is completely new, and there have been many cases where filers with representation have faced these issues as well.

One of the most common issues that can trip up filers is the description of the infringement. The current infringement description is a simple textbox, and it can be difficult for a filer to know how to fill it out. 

Likewise, many filers struggle to complete the required process service. It is not something that many pro se filers have ever done before. The CCB’s handbook provides extremely limited information on this topic.

There are other problems with the filing process. For one, it is possible (albeit with some manipulation) to enter a non-US address for the respondent. Second, there is no check to see whether the copyright registration or service number is valid. 

As such, I think these four relatively simple changes could have a significant impact on the usability of the CCB:

1. Break the “Describe the Infringement” text box into separate elements. Rather than asking filers to describe the infringement, ask pointed questions such as “How did the respondent find the work?” “How is the work similar to yours?” Etc.
2.  Work with a trade organization to help filers complete service. The National Association of Professional Process Servers, for example, maintains a national database of process servers. Though the CCB provides alternatives to formal service, most filers will have to go through this process, so helping with the first steps makes sense.
3. Connect the CCB form to the USCO registration database to ensure that registration and service numbers are valid. 
4. Address other areas in the filing process where incorrect information can still be entered, either through malice or accident.

To briefly address other queries under this topic, we don’t really have enough information to determine if the scope of discovery, written testimony, etc. are working as intended. Many of these questions concern active cases. As of this writing, the CCB has issued less than 50 final determinations, most of which are defaults. 

There’s not enough data for me to comfortably comment.

Topic 2: Are There Any Aspects of Other Small Claims Tribunals, Including Their Models or Procedures, That Should Be Considered for the CCB?

I’m unaware of any system comparable to the CCB for copyright disputes other than private arbitrators. The system is unique, to my knowledge, for copyright cases.

That said, it is attempting to mimic regular small claims courts. It features lower damages, is accessible to pro se filers, and aims to have speedier cases. 

One area where the CCB is struggling is that there is no simple way for a victorious filer to collect damages. Though CCB awards are enforceable in federal court, the CCB doesn’t provide guidance for doing that.

This is an especially big issue in default cases. If claimants go through the entire process and win a final determination, they need to be able to collect damages. However, that has been very challenging for many filers. 

The CCB providing guidance on next steps could significantly improve the filer experience.

Topic 3 (A-B): Are There Ways That the CCB Can Be Made More Accessible and User-Friendly, Including for Self-Represented Parties? 

I outlined most of my suggestions under Topic 1. There are many opportunities to improve the online forms the CCB uses, and I point to my earlier list for some of the improvements I recommend.

However, one resource that would help self-represented parties is a collection of successful documents and filings. 

As of this writing, the CCB is nearing its third anniversary. It has amassed a large library of cases and filings, both good and bad. However, navigating that system can be daunting, especially if you’re looking for a specific example.

The CCB does provide made-up examples in its handbook. However, the handbook is not easy to find. It is not currently linked on the CCB home page and is not easily accessible through the user dashboard. It also doesn’t contain examples for all types of documents one might have to file. 

(Note: While working on this, I noticed that the “Knowledge Base” link in the CCB dashboard contains no articles. This obviously needs to be addressed to improve usability.)

Creating a curated library of good examples could significantly aid self-represented filers. Many simply do not know what is expected of them, and this could address that issue.

Topic 4: Are There Any Changes That Could Be Made to Improve the Default Process or Reduce the Incidence of Defaults While Adequately Preserving Respondents’ Rights and Ensuring the Timely Processing of Claims?

Defaults are easily the biggest problem in cases that reach the active phase. When the CCB released its two-year report in October 2024, it had written just 23 final determinations, 14 of which were defaults.

The problem is that there is no motivation for a respondent to participate in the CCB. Opting out of the case risks the case being refiled in a federal court, which could result in higher damages, higher costs and stronger enforcement.

Instead, the respondent can allow the case to move forward at the CCB without them. The board will consider every defense that they have. The board has already awarded one default determination in favor of the defaulting party. The damage award is typically the actual damages times a certain amount (usually 3X). Finally, given the difficulty in getting courts to enforce the CCB determination, it’s likely they’ll never have to pay the amount regardless.

So, what motivation is there for a respondent to either opt out or participate? If they know they are in the wrong and the dispute is solely about damages, defaulting is often the superior strategy.

The board could improve this. For one, they could penalize defaulting parties when awarding damages. The CCB has a large amount of leeway in awarding damages and has rarely even approached its maximums. Awarding a modest bonus in cases involving defaulting parties would help with this.

Defaulting parties waste the time of both the board and the claimants. This needs to be recognized when handing out final determinations with damages. 

A more complicated step would be to allow claimants to move default cases more easily to federal court. If both parties opt in to the CCB, the process should be completed. If the respondent opts out, then the claim is dismissed from the CCB. But if one party fails to opt out and defaults on the case, the claimant would benefit from another opportunity to decide if the CCB is still right for this claim, given the new information.

If respondents know they are in the wrong and are likely to lose, they have little reason to participate in the CCB. Defaulting is both the safest strategy and the path of least resistance. Making that not the case should be a priority.

Topic 5: Are the Statutory and Regulatory Rules for Addressing Bad-Faith Actors Working as Intended? In Particular, Is the One-Year Ban for Bad-Faith Actors Sufficient in Length and Should There Be Different Sanctions for Repeat Offenders?

I don’t have much to comment on here. Repeat bad faith actors have been a rare problem, and only a few bans have been handed down. To my knowledge, those banned are still in their ban period.

That said, I think this punishment is being used as intended. It’s being used rarely and only against those who repeatedly act in bad faith, not for honest mistakes by self-represented filers.

One year is perfectly reasonable for a first ban. If I were to recommend any additional punishment, I would require banned filers to complete a course about the CCB and copyright broadly. Likewise, I think lengthier punishments for repeat violators are warranted.

That said, this is still not a significant enough issue to warrant any immediate action. The bigger problem remains claimants who make mistakes or don’t understand the process, not malicious actors.

Topic 6: Are There Any Changes That Could Be Made to Improve the Ability of Claimants to Enforce Determinations?

I touched on this in Topic 2 and Topic 4. Collection of damages is a significant problem, especially with defaulting respondents.

As I said above, guidance for claimants on what to do is crucial. This might be a challenge without crossing the line of providing legal advice, but some guidance on next steps would be helpful. This could be a great time for a partnership, similar to the one with the pro bono assistance organizations, to direct people to the next steps.

However, the biggest challenge is that many awards aren’t worth pursuing. An award of the statutory minimum of $750 is likely more hassle than it’s worth. Since there’s no federal small claims court and these awards are only enforceable in federal court, the hassle may just be too great. Higher damage awards, even slightly, would change that calculus.

While the CASE Act does allow claimants to seek attorneys’ fees and other costs in obtaining such an order, it is still a time-consuming and overwhelming process that requires an attorney. Avoiding the need for an attorney is one of the major benefits of the CCB.

These things would help victorious claimants collect the damages they are owed. 

Topic 7 (A-C): Whether Adjustments to the CCB’s Authority Are Necessary or Advisable, Including With Respect to: (A) Eligible Claims, Such as Claims Under Section 1202 of Title 17, United States Code (Which Addresses the Integrity of Copyright Management Information); (B) Eligible Types of Works; And (C) Applicable Damages Limitations.

The Fairness for American Small Creators Act (FASC Act) (the precursor to the CASE Act) allowed claims regarding the removal of copyright management information (CMI). Allowing the CCB to hear such claims could greatly help with other issues it faces.

According to the CCB’s two-year statistics (https://www.plagiarismtoday.com/2024/10/22/copyright-claims-board-releases-key-statistics/), 38 percent of the claims filed involved pictorial, graphic, or sculptural works. These cases often involve the removal of CMI, especially online.

Allowing the CCB to hear CMI cases would give filers without a large amount of actual damages access to additional damages. It might reduce defaults as CMI allegations can be combated by a participating respondent. It would mean that respondents would have a significant reason to participate as they could contribute meaningfully to their defense.

As for the damages limitations, they have not been a major factor in the CCB’s operations. The highest damage award by the CCB was just $11,000, which involved multiple works. The board has not approached its damages cap in any meaningful way. As such, I don’t see a point in adjusting them at this time. 

The cap on attorneys’ fees has also not been a significant issue before the board, and I have no input on whether it needs to be adjusted.

Topic 8: What additional mechanisms, if any, should the CCB adopt to assist claimants in ascertaining the identity and location of unknown online infringers? Should the CCB be granted subpoena power to assist parties in identifying or locating potential respondents?

Granting the CCB this ability is likely not practical. However, it may not be necessary. 

The Digital Millennium Copyright Act (DMCA) subpoena process (Section 512(h) of the DMCA) offers a streamlined way for a rightsholder to unmask a suspected infringer. Rather than creating a new power for the CCB, providing guidance for potential filers about this process might make sense.

This process is not without controversy. However, the USCO and CCB could help claimants use it without petitioning for new powers. If the CCB petitions for greater powers, limited and narrow injunctive relief would be more useful than subpoena power.

I do not know how many respondents have an issue with obtaining potential respondents’ identities. However, if it is a major problem, using the existing system makes more sense than trying to carve out new powers for the CCB.

This is something the CCB could start on today without seeking new powers.

Topic 9: Whether the CCB Should Be Expanded to Offer Mediation or Other Nonbinding Alternative Dispute Resolution Services to Interested Parties.

The CCB is already widely used as a mediation process. It has a low entry barrier; from a cost and knowledge perspective, the process is relatively informal, and many cases where both parties participate end in a settlement.

To me, it seems wholly unnecessary for the CCB to offer formal mediation services. It already fills this niche nicely. One of the CCB’s strong suits is its ability to bring claimants and respondents together to discuss the case and work on a resolution.

If there is a demand for third-party mediation, working with a trade organization and providing a system within the CCB to move cases in that direction would be more advantageous. Offering that service inside the CCB seems duplicative.

Ultimately, this is already a strength of the CCB, and there’s little reason to duplicate those efforts.

Topic 10 (A-C): Other Topics of Interest to the Register

Subtopic A asks for information about claimants using the CCB to contest DMCA counternotices. I have encouraged several individuals to file with the CCB for this exact purpose and can state that it is working as intended. Though I am not involved with the cases once they are filed (as per CCB policy), I know several people who successfully responded to counternotices this way.

I don’t believe modifying this rule is necessary, as it seems to work as intended.

Subtopic B asks for the perspective of legal clinics and pro bono organizations. Since I am neither, I cannot offer any input there. 

Subtopic C asks for additional discussion beyond the first nine topics. I feel as if everything has been covered very thoroughly. 

Thank you very much for your time and consideration of this comment. If you have any questions, please do not hesitate to reach out to me via the contact information provided.