Early Trends in the Copyright Claims Board: How Law School Clinics Can Improve Small Artists’ Access to Justice
October 6, 2022 by Megan Kilduff
The Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020 established the Copyright Claims Board (CCB), the United States’ first tribunal dedicated to resolving small copyright claims. The CCB, which officially opened this summer, provides a more affordable avenue for independent artists and small businesses to bring actions against entities who have infringed their art, photographs, designs, and sound recordings; CCB proceedings require a fraction of the expense and time associated with copyright proceedings in federal court. But the first set of CCB determinations suggests that this purported accessibility is hindered somewhat by complicated procedures and by terminology still unintelligible to many unrepresented claimants.
The CCB is a voluntary alternative to federal court for copyright actions involving certain claims valued up to $30,000. Parties submit filings online through the eCCB portal and participate in proceedings virtually. The CCB only considers a few kinds of copyright claims; CCB claimants may only bring claims (1) of copyright infringement, (2) seeking declarations that specific activities do not infringe copyright, and (3) of misrepresentation in notices sent under the Digital Millennium Copyright Act (DMCA). Similarly, a respondent in a CCB proceeding may also only bring those three types of counterclaims against a claimant. Claims of up to $5,000 are eligible for even more expedited review. The CCB benefits small copyright holders, such as independent artists and small businesses, because the fees are relatively low, claims are resolved relatively quickly, and because it does not require a lawyer to file a claim. The CCB has some drawbacks, however; primarily, respondents may opt-out of CCB proceedings. If a respondent opts out of a CCB action, a claimant may still pursue his or her claim in federal court.
In its first summer, defined as the term between its opening date on June 16, 2022 to September 30, 2022, the CCB issued 18 final determinations. The Board dismissed a majority of these claims because either the claimant failed to meet some pleading or filing requirement, because the claimant withdrew their claim, or because the respondent opted out of the proceedings.
A decent copyright attorney would avoid the previously mentioned filing errors, but lawyers are unlikely to assist many small copyright claimants because the CCB limits the number of claims an attorney may file in a single year and caps award amounts. Law school clinics, however, may serve as the ideal mechanism for supporting individual artists and small businesses in resolving copyright claims before the CCB. The Copyright Office allows law students to represent CCB claimants through clinical programs. CCB proceedings are also an ideal area of student representation because filings require small fees and because officers issue determinations quickly, which means law students may begin and complete a representation within one or two semesters. While the CCB does not require a lawyer to participate in proceedings, some familiarity with copyright law and with administrative procedures is fundamental to the success of claims.  These factors make the CCB a perfect forum for student advocacy and representation.
In short, while the Copyright Claims Board has the potential of dramatically increasing access to justice for independent artists and small businesses, it so far has fallen short of this potential. Barring any dramatic changes to CCB procedures, law students may help bridge the gap between copyright claimants and successful CCB determinations. Law schools hoping to expand their intellectual property, alternative dispute resolution, or legal services programming can build this bridge; these schools should consider adding clinical programs specializing in CCB claims.
 U.S. Copyright Office, Copyright Claims Board Handbook, Ch. 1, 1 [hereinafter CCB Handbook].
 U.S. Copyright Office, NewsNet Issue 969: Copyright Office Announces Claims Board Is Open for Filing (2022).
 CCB Handbook, supra note 1, at Ch. 1, 2.
 CCB Handbook, supra note 1, at Ch. 4, 1-3.
 About, supra note 5.
 CCB Handbook, supra note 1, at Ch. 1, 3.
 Results, supra note 4.
 See, e.g., Mazza v. Grippo LLC, 22-CCB-0092, https://dockets.ccb.gov/case/detail/22-CCB-0092; Palmer v. Columbia Records, 22-CCB-0019, https://dockets.ccb.gov/case/detail/22-CCB-0019; Goodrich v. Green Line Media, 22-CCB-0022, https://dockets.ccb.gov/case/detail/22-CCB-0022.
 See, e.g., Giardina v. Zesty Paws, 22-CCB-0018, https://dockets.ccb.gov/document/download/311; Market on Mainstreet v. Cheong Lau, 22-CCB-0074, https://dockets.ccb.gov/case/detail/22-CCB-0074; Kauffman v. AAS Printing Inc., 22-CCB-002, https://dockets.ccb.gov/case/detail/22-CCB-0002.
 See, e.g., Harber v. Shellenberger, 22-CCB-0052, https://dockets.ccb.gov/case/detail/22-CCB-0052; Tactical Training Academy v. Ingram Content Group, 22-CCB-0013, https://dockets.ccb.gov/case/detail/22-CCB-0013; Jarman v. 11:11 Digital, 22-CCB-0010, https://dockets.ccb.gov/document/download/459.
 A lawyer may only file forty claims within any twelve-month period. CCB Handbook, supra note 1, at Ch. 5, 3.
 About, supra note 5.
 Copyright Claims Board: Law Student and Business Entity Representation, 87 Fed. Reg. 20707 (Apr. 8, 2022) (to be codified at 37 C.F.R. pts. 201, 232, 234).
 The initial filing fee is just $40. The total fee for the life of a small copyright claim is just $106. See About, supra note 5.
 Most phases of a CCB proceeding last thirty to sixty days. Proceeding phases and timelines are outlined on the CCB website. See CCB Proceeding Phases, Copyright Claims Bd., https://ccb.gov/proceedings/ (last visited Oct. 5, 2022).
 In making determinations, CCB Officers consult federal statutory authority, such as the Copyright Act of 1976, the Digital Millennium Copyright Act, and the CASE Act. Officers also consult federal copyright case law and regulations promulgated by the Copyright Office. State service procedures may also apply to CCB claims. See CCB Handbook, supra note 1, at Ch. 1, 8-9.