Intellectual Property (IP): Copyright Claims Board (CCB)

Good news/bad news: Defendants have the right to opt out of the CCB proceedings,

According to Aufderheide, Sinnreich, in this paper, and others elsewhere (it is a fact, not an opinion and facts can not be copyrighted.)
"The U.S. Copyright Claims Board (CCB), created in 2020 by the Copyright Alternative in Small-Claims Enforcement Act, creates a nonjudicial administrative venue to resolve copyright infringement claims up to $30,000."

Val: Commentary: My take-away from this paper:

• Supporters claim it will help 'little guy' creators protect their work
• Detractors claim that it will increase corporate intimidation and copyright trolling
• Survey found that the CCB does not serve its stated purpose because of scholars' fear of legal entanglements
• Conclusion: Well-informed defendants are most likely to opt out of the venue

Authors' discussion of Olson, 2020:  Val's take-away

According to Olson (2020) "the benefits to individual creators would differ according to the circumstances. In the case of a photographer ... against a company that used an unauthorized image in their Instagram feed... volunteer for the small-claims venue and the photographer would benefit." 

Small versus big:  A "small company or an individual/sole proprietor would benefit" by using CCB to make their claim of infringement. [ Caveat: If the Big entity agrees to venue]

Big versus small: "refusing the venue has large intimidation benefits."

Big versus small: "a large organization "would probably choose to opt out and force the photographer’s hand."

Big versus small:  For "a  large corporation against an individual, Olson believes that the large corporation would have the upper hand."

Alaming Excerpt:

"Benson and Vollmer (2021) foresee ominous consequences for researchers and libraries generally, not because of how actual cases would be resolved but primarily because of the intimidation factor, which because of the low cost of entry is far more believable than a letter threatening a federal lawsuit. They argue that it is too easy for litigious rights holders to sidestep the traditional federal court system and file thousands of small claim notices at the CCB against unsuspecting scholarly authors. For as little as $100, a copyright holder can send a notice to a faculty member or student demanding they comply with the small claims process even though their use of the work would normally be protected under limitations and exceptions to U.S. copyright law, such as fair use. Overeager rights holders would be given free rein to issue demands, and respondents who lose their CCB proceeding would be unable to appeal, as would be available in a judicial process (Benson & Vollmer, 2021)."

Scholars have much to lose and little to gain from this new venue.

Serious intimidation problems for "what the Copyright Office (and large publishers) regard as “small” claims."

Up to scholars, and librarians to "process that operates extrajudicially, to further tilt the legal playing field away from the creator and toward large publishers."

Aufderheide, Patricia, and Aram Sinnreich. “The Copyright Claims Board: Good News or Bad News for Communication Scholars?” International Journal of Communication (Online), vol. 16, Oct. 2022, p. 5046. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=edsgao&AN=edsgcl.726954066&site=eds-live&scope=site

As a librarian, I did not worry about copyright until the suit against Georgia State University for copyright violations in 2008. The latest word on this case according to https://libguides.law.gsu.edu/gsucopyrightcase 7/1/2022 accessed 2022 explains:
“On September 29, 2020, the District Court issued a Final Order. The extreme example of a court case lasting over 12 years shows the extent to which publishers will fight for their profit.

Since then, I have been careful to warn people against copying whole books or making several copies of items, unless they own the copyright or have permission. Librarians are not expected to police the act of copying, but they can use it as a teachable moment. At the very least, it is recommended to have a “Copyright Law” poster at any library printing station.

If a librarian does not tell users that they can legally copy items, it is the users' responsibility to follow the copyright law. Which is a big problem for users because most people are fuzzy on what copyright means. Plus, Copyright Law is multiplying along with the formats used. To get a glimpse of what is happening, you can subscribe to alerts about copyright at https://www.copyright.gov/subscribe/

To help people understand copyright, I often describe copyright as a property right; including the right to make money from copies of your own original content and the right to change that content and make multiple copies. For convenience, I keep answers to frequently asked questions about copyright on our Copyright & Citing Sources Guide: https://library.fvtc.edu/Citing/CopyRights

Until recently, if a copyright owner thought their copyright was infringed, they could file a complaint with the FBI and hire a lawyer who knew what to do, as described in https://www.copyright.gov/help/faq/faq-infringement.html accessed 7/1/2022.

Then, as described in a blog post: “What will the Implementation of the CASE Act mean for me? An Update on the Copyright Claims Board and Launch of ccb.gov” https://blogs.loc.gov/copyright/2022/04/what-will-the-implementation-of-the-case-act-mean-for-me-an-update-on-the-copyright-claims-board-and-launch-of-ccb-gov/ accessed 7/1/2022 explained the Copyright Alternative in Small-Claims Enforcement Act of 2020, or CASE Act for short, directed the Copyright Office to establish the Copyright Claims Board (CCB). “The CCB is expected to provide a fair, efficient, and user-friendly way to resolve copyright disputes that involve up to $30,000.”

As mentioned in a Justia article https://verdict.justia.com/2019/10/24/big-problems-with-the-copyright-small-claims-court accessed 7/1/2022, the old method was “to sue copyright infringers in federal court, the processes of which can be long and expensive.” This gave a lot of power to large corporations like publishers and producers, and very little help to small-business artists. The idea of the new Copyright Claims Board (CCB) is to provide a more affordable remedy for copyright infringement claimants. This may make everyone a target, however. According to the same Justia article “Many of the emails we resend, memes we post, and the videos and pictures we take could technically be violations of copyright law.” Consequently, the CCB may open a door for a variety of nuisance suits and for that reason, it is important to keep current on what is happening with regards to the CCB. 

Nuisance suits may occur, but there is a way to opt out of the CCB pseudo-court. My understanding is that library and archive institutions can opt out of being a party to dispute resolution through the non-judicial “Copyright Claims Board” or “CCB by pre-emptively filling out a form https://ccb.gov/libraries-archives-opt-out/images/opt-out-form.pdf to be found at https://ccb.gov/libraries-archives-opt-out/

Why don’t all institutions automatically opt out? If an Institution is afraid an infringement case is legitimate, they can decide to go the cheaper CCB route. This means they can investigate and decide to opt out on a claim-by-claim basis according to the section “If the Library or Archives Does Not Preemptively Opt Out” Accessed 6/29/2022 from https://blogs.loc.gov/copyright/2022/05/the-case-act-for-libraries-and-archives/ “Libraries and archives that do not preemptively opt out can still opt out of participating in a CCB proceeding on a claim-by-claim basis. Libraries and archives, like any other potential CCB participant, should consider the pros and cons of using the CCB as an alternative to federal court litigation. You can learn more about the claim-by-claim opt-out process at https://ccb.gov/ .”

What about employees? According to “Small Claims Procedures for Library and Archives Opt-Outs and Class Actions” accessed 6/29/2022 from https://public-inspection.federalregister.gov/2022-04747.pdf

“§ 223.2 Libraries and archives opt-out procedures. (a) Opt-out notification (5) An opt-out under this section extends to a library’s or archives’ employee acting within the scope of their employment, but does not apply to employees acting outside the scope of their employment.”

The term “scope” makes me a little nervous. I don’t really take my “Librarian hat” off at the end of the workday. If someone asks me a copyright-related question when I am not officially on the job…is that still within the scope of my employment? If my conduct is allegedly outside the “scope” of my job, then I have only 14 days to opt out of going through the CCB hearings after receiving notice:

“Small Claims Procedures for Library and Archives Opt-Outs and Class Actions” accessed 6/29/2022 from https://www.copyright.gov/rulemaking/case-act-implementation/library-opt-out/ “Any party to an active CCB proceeding who receives notice of such a class action must either opt out of the class action or seek written dismissal of the CCB proceeding within fourteen days of receiving the notice.”

Do not ignore copyright infringement notices! Universities are posting “standard operating procedures” to address how to prepare for interactions with the CCB for copyright infringement. Some mentioned using UC Berkeley Library, Office of Scholarly Communications, CC-BY-NC 4.0 as a template. You might want to bookmark that website.

Regardless of the opt-out status of your institution, be careful to

1. Verify that you have a “Copyright” poster explaining copyright law next to the library photocopiers to educate customers. You can get one from the ALA Store: https://www.alastore.ala.org/content/copyright-poster
2. When in doubt about the legality of the proposed copying, point to the poster and remind customers that they are responsible for following copyright law before removing yourself from the copying area.
3. It is important that librarians remind people that we are not lawyers and that our explanations are for informational purposes only.

Further reading:

ANTI-CCB opinion: “A new quasi-court for copyright, with nationwide reach, began accepting cases this week. The “Copyright Claims Board” or “CCB,” housed within the Copyright Office in Washington DC, will rule on private copyright infringement lawsuits from around the country and award damages of up to $30,000 per case. Though it is billed as an “efficient and user-friendly” alternative to federal litigation, the CCB is likely to disadvantage many people who are accused of copyright infringement, especially ordinary internet users, website owners, and small businesses. It also violates the Constitution in ways that harm everyone.” Accessed 6/29/2022 from https://www.eff.org/deeplinks/2022/06/copyright-small-claims-quasi-court-opens-heres-why-many-defendants-will-opt-out

PRO-CCB opinion: “You may have heard about the Copyright Alternative in Small-Claims Enforcement Act of 2020, or CASE Act for short, which directed the Copyright Office to establish the Copyright Claims Board (CCB). Once operational, the CCB will provide a fair, efficient, and user-friendly way to resolve copyright disputes that involve up to $30,000. In preparation, the Copyright Office has announced the launch of its brand new website, ccb.gov, where businesses, creators, and users can learn more about the CCB, the types of claims it can hear, and reasons to consider using the CCB..” accessed 6/29/2022 from https://blogs.loc.gov/copyright/2022/04/what-will-the-implementation-of-the-case-act-mean-for-me-an-update-on-the-copyright-claims-board-and-launch-of-ccb-gov/