Management

The Library of Congress marks a year of helping solve copyright disputes

The Copyright Office's equivalent of small claims court has helped hundreds of people solve disputes in its first year. The three-member Copyright Claims Board...

Tom Temin@tteminWFED

July 14, 2023 2:24 pm

12 min read

The Copyright Office’s equivalent of small claims court has helped hundreds of people solve disputes in its first year. The three-member Copyright Claims Board will help in cases worth up to $30,000. For a progress report, Federal Drive with Tom Temin spoke with Claims Board member Brad Newberg.

Interview Transcript:

Tom Temin And by the way, you’re fairly new to the government after a career in dealing with copyright cases as a private sector attorney, correct?

Brad Newberg That is right. I was the head of trademark and copyright litigation for McGuire Woods for years before coming here.

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Tom Temin So it must be interesting to see it from the inside after litigating it from the outside all these years.

Brad Newberg Oh, yeah. Two years in and I’m still getting used to being a government employee.

Tom Temin All right. Tell us more about the Copyright Claims Board. You’ve dealt with hundreds of cases. What typifies these cases that you’ve dealt with?

Brad Newberg Sure. Well, as you mentioned, it’s for any copyright case that’s a copyright infringement case declaration for non-infringement or what’s called a misrepresentation claim or a DMCA takedown or counter-notice that somebody put something false in that. That’s for up to $30,000. Most of our cases are infringement cases, but we get a lot of the others as well. And it can be any type of work from photography to music to movies and so on.

Tom Temin Because there’s been some famous copyright cases of music that have come up in the media and so on, big time, big dollars. But you’re dealing with more small fry in general than than famous recording artists that have big albums and all that.

Brad Newberg That’s true because of the limit and damages to 30,000. So if you were to think that your work was infringed and became some number one hit, you probably wouldn’t be going to us. But we have got a few smaller claims like that where people have said my work has been infringed and even have sued some larger music companies and such. And we’ve had cases like that.

Tom Temin And before this board was established, what happened? If people had a small claim, say someone copied a I don’t know, a picture of flowers and sold it in a studio and said, Well, wait a minute, that’s a copy of my picture of flowers.

Brad Newberg Right. So the problem that this is aiming to solve, that the CCB is here for and we call for short CCB Copyright Claims Board is that both sides, plaintiffs and defendants felt priced out of the system, like they didn’t have access to resolving their dispute. So your only option was federal court. Federal courts had original jurisdiction over copyright claims, and the average case in federal court could cost easily into the six figures. So if you had a claim that was worth even 30,000, but five, 10,000 say, there was no real point. And what you had was copyright owners felt this is too expensive, I can’t enforce my works. And if they did sue, you had users of copyrighted material feeling, Well, I have no choice but to settle. I can’t defend myself. It’s just going to cost too much. So it’s a benefit for both sides for the CCB to be there.

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Tom Temin Yeah, to take someone to federal court, you might as well have a patent claim like a big corporation. They can afford that kind of dollars. But here we’re talking about copyright. And so it might be smaller fry or smaller potatoes, I guess you might call it fried potatoes. I don’t know.

Brad Newberg Right. Of course. As the CCB I’m obligated to say that we think every case is important, but they are certainly for smaller value cases.

Tom Temin And can you typify the cases that you’ve had about the 500 so far in that first year or so of operation? Are they mostly visual arts? I mean, what kinds of copyrighted material tend to come in there?

Brad Newberg Sure. So one of the great things we learned and that we’re really excited about last year is the diversity of types of works. So when we were launched, there was a thought that maybe we’d be all just photographs on the Internet. And while photography is the plurality of our cases, it’s only about just under 40% of our cases. We have another 20% that are audiovisual works, whether it’s movies or videos that are posted on the Internet, as well as another 20% that are either musical works or sound recordings, and then everything from architecture to software. So yes, the most typical is a photography claim. But we’ve really been excited about how all sorts of artists and owners and of course, copyright respondents, what we call defendants, are using the system.

Tom Temin We’re speaking with Brad Newberg. He’s a member of the Copyright Claims Board, part of the Library of Congress. Do you ever get people that come with a trademark claim and you say, no, sorry, you got to go across the river to another branch of government?

Brad Newberg Yes, we do. We put out a lot of educational materials. We have a website that people can go to. We have a handbook that takes people through each step from filing a claim all the way to the end. But we hope everybody reads it, but obviously not everyone does. And what we do is we have what’s called a compliance review at the very beginning. So if someone files something where it’s clearly not a copyright claim, something we can handle, we can’t handle things against foreign respondents that doesn’t get served, it doesn’t become a real case. We send back a noncompliance order to say, Hey, this isn’t going to work, and we do give an opportunity to fix it. But as you’re mentioning, if someone’s just got pure trademark piece, they’re not going to be able to fix that.

Tom Temin And how does someone initiate a case? You don’t have a physical courtroom or a boardroom, Right? It’s all online, this whole process.

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Brad Newberg That’s right. We are completely virtual, so no one ever needs to travel for a CCB case. What we did, actually, and we’re really proud of this is we created a brand new filing system from scratch. So if you are attorney in private practice, there is a filing system at courts called Pacer, not to get too deep in the weeds, but it is literally you have to do everything yourself and you sort of upload it. What we did, knowing we would have a substantial amount of individuals and companies representing themselves is we developed a completely new process called ECCB. Not terribly original, but there it is. So people go and they file a claim there and instead of just uploading something, you have to figure out by yourself ECCB walks a claimant through questions that they need to fill out to say, okay, here’s my work, here’s how it was infringed and when it was infringed. And the type of form I’ve had or what I’m looking for. And that way, rather than having to figure it out all themselves, claimants can just answer the questions to put together a claim on ECCB.

Tom Temin And it can’t be just someone was copied. They have to have obtained a copyright in the first place, right, for the work in question.

Brad Newberg So the way it works for us is that’s mostly right. If you want to file a claim at the CCB, you have to either have a registration already on your copyright work. This is for copyright infringement cases, of course, or you have to have put a completed application for registration with the Copyright Office. And the registration division is totally separate from the CCB. But you still have to have done that and have to note that in your claim before you can proceed.

Tom Temin So simply have putting something up on your website or published it to whatever it is you send things through your Instagram, whatever the case might be. That doesn’t constitute having a prior claim as a copyright itself would.

Brad Newberg Right. You can’t just say – now you get of course, copyright is automatic. Once you put pen to paper, you own a copyright, but you don’t have a registration until you go through the Copyright Office procedures. And you need to do that at least at the application stage before you can file with us.

Tom Temin And how are you getting the word out? I mean, the copyright community is millions and millions of people doing all of these activities that you mentioned, and most of them probably aren’t all that aware of the Copyright Office, let alone of the CCB.

Brad Newberg So it’s not as easy as one might think. We’re a very small niche community of lawyers, like in terms of copyright infringement cases in general, and they are copyright lawyers. Here we are marketing to the entire public because anyone can have a copyright claim. So that makes it a little bit tougher. But of course we’re speaking here today and the officers in our copyright claims, attorneys and staff do other speaking engagements. We have the copyright offices, Office of Information Education. They put out tweets and news nets and blog posts. So we really do try to get the word out. But with 300 plus million citizens and any one of them can own a copyright because copyright is for everybody, it makes it a little bit tougher to get that word out.

Tom Temin And just briefly, what was the germinating idea for the CCB? Was there legislation that brought this into being or is it something that Congress just said, go ahead and do this?

Brad Newberg So, no, it took a while. This is something that’s been in the back of a lot of people’s minds for a lot of years. It was brought up well over a decade ago. And then about a decade ago, the Copyright office did a study on it, showed just how much it was costing people in federal court. So there was a lot of back and forth and then went through iterations. And at the very end of 2020, it was passed by Congress and what’s called the Case Act. And basically the entire staff, including myself, was hired in the second half of 2021, and we spent just about a year putting together, like I said, ECCB and promoting it and letting people know about it and putting out all the regulations because of course, the act sets up the skeleton, but the regulations are our day to day procedures. So there was a lot to be done before we could launch last June.

Tom Temin And the board members, you and your two colleagues then have the power, the authority to say, yes, this was an infringement and set damages for the infringer to pay the infringee.

Brad Newberg That’s right. Up to $30,000 is what the claim can be. Now, there are statutory damages that people can elect that can be up to $15,000 per work infringed, which also is different than federal court, which can be up to 150,000. And then, like I said, there’s other things in terms of the declaration of non-infringement where we can just put a declaration out to say this activity is non-infringing. Or like I said, with the misrepresentation, the false statements. The other thing I should mention is I said up to 30,000. So it’s very streamlined. The smaller claims that we have, there’s no depositions, there’s no subpoenas, there’s streamlined discovery. But for an even more streamlined experience, let’s say you can choose our smaller claims track, which is even a $5,000 cap with even less discovery, and it’s much more customized to the case. And it’s supposed to be sort of quicker and even more cost efficient for the parties.

Tom Temin And unlike a court, you probably can’t subpoena people or force them if someone is accused of infringement. How do you get their backside into the court, virtually, so to speak.

Brad Newberg So what happens similar to a court is once we find a claim compliance. So you mentioned the trademark claim that we wouldn’t, once we say, okay, this is compliant, at least follows our regulations, it’s the type of case we can hear. Then we tell the claimant, Go ahead and serve it and you would serve it like you do a federal complaint. So once a respondent is served, then they know, hey, there’s a case here and they have a couple of options. One is the CCB is actually voluntary for everyone, so they actually have 60 days in which they can opt out and say, Look, I don’t want to be part of the CCB. If the claimant wants to sue me, they need to go to federal court. Or if they don’t opt out, and then just like a court case, they would be here and they are subject to our jurisdiction and we start handling it. We have a conference, we move the limited discovery we have forward, and then eventually we hear from the parties and we issue a decision.

Tom Temin And in your job as a member of the CCB, you get to look at a lot of things and listen to a lot of things.

Brad Newberg We get to hear a lot of different stuff. And of course, as you can imagine, when two thirds of our parties are representing themselves, whether a business or an individual you get a lot more, We haven’t seen a lot of emotional cases. Frankly, I thought we might, but you get a lot more of individuals saying, look, I really want this wrong to be righted as opposed to outside counsel of big companies that are just hey, it’s another case for me. These cases are more personal to me.