A year ago, at the nadir of the Trump era, Congress attached the CASE Act to an unrelated must-pass bill and authorized a new “small claims court” for copyright owners (called the Copyright Claims Board, or CCB) housed in the legislative branch (the Copyright Office). For reasons I explain here, I am not a fan.
The Copyright Office is now making rules for the Copyright Claims Board (CCB) procedures. Given my opposition to the CCB generally, I expected I would flame their proposals. Instead, I didn’t have much emotional investment in the proposed rules. Much of the rulemaking is deep in the civil procedure weeds. Because the Copyright Office is building a brand-new adjudicative procedure from scratch, the office needs guidance more from civil proceduralists than copyright law experts.
Consistent with its instructions from Congress, the Copyright Office is treating the CCB as a bona fide adversarial adjudicative process, and not a hack on due process. Thus, the CCB rules generally assume that claimants will engage with the CCB in good faith. I have a different perspective. The CCB will be gamed and abused, so the Copyright Office must harden its procedures against abuse. Two places where the Copyright Office’s rulemaking doesn’t adequately anticipate claimant weaponization:
Service of process
The CCB incorporates existing service rules that apply to judicial proceedings (17 USC 1506(g)(4) & (5)), but those service rules are gamable even in non-CCB contexts (see Eugene Volokh’s work on default judgments). Gaming is especially a concern when a claimant sues anonymous or pseudonymous defendants, an issue that will come up frequently in the CCB. Claimants can engage in the theater of serving someone, but how sure are we that service reached the actual wrongdoer? We saw a similar problem in Hassell v. Bird, where it was never clear that the pseudonymous defendant got properly served.
If the claimant misidentifies the defendant or the defendant’s address, then claimants can easily get a bogus CCB default judgment and weaponize it for a wide range of purposes. To redress this risk, I wonder how, exactly, the CCB will validate that the right defendant was identified and that service was made to that person. The Copyright Office’s proposed rules don’t address what steps it will take to rigorously scrutinize service, and that leaves open a potentially huge and obvious hole for claimants to abuse.
Plus, if a claimant gets caught abusing service, will they suffer any consequences other than dismissal of their complaint/vacation of their judgment? In theory, the service abuse could be turned over to law enforcement, but prosecutions over abusive litigation techniques are extraordinarily rare. Without any consequences for bad behavior, of course bad actors will abuse the rules. If the CCB wants to be viewed as a legitimate adversarial process, it should invest some resources in identifying–and punishing–service abuse to prove its judicial function has integrity.
As I’ve previously mentioned, claimants will use the CCB’s novelty to enhance their trolling initiatives. Trollers will send demand notices threatening to take the defendant to the CCB, and they will send further demand notices after filing a CCB complaint (but before service of process has been approved). Scared defendants will write settlement checks out of ignorance and fear. The CCB doesn’t regulate any of this pre-service conduct, but it should:
- invest in enforcement efforts to identify abusive pre-service demands,
- punish offenders by denying them access to the CCB (they can still go to court, they just don’t get CCB privileges),
- educate trolling victims of their rights and provide assistance to help them redress their victimization, and
- engage in much more robust public educational efforts than have been currently undertaken to increase overall citizen awareness of the CCB and the risks that copyright owners threatening CCB actions may be trolling. If the Copyright Office budget isn’t big enough to cover a nationwide PR campaign, it should go back to Congress for more funds. After all, Congress is the one that sowed this fertile field for trolls.
Right now, the Copyright Office’s educational efforts seem passive. It appears the Copyright Office assumes that the notice that must accompany service will be enough to educate defendants. However, that does nothing to redress the CCB-related activity that will take place before defendants ever get that notice. I also worry that no matter what the required notice says, claimants will overclaim the consequences of the Copyright Office authorizing service and use that to further extract concessions.
The statute authorized the Copyright Office to establish a maximum number of proceedings that a claimant may initiate (17 USC 1504(g)). A volume cap is essential to curb abusive high-volume trolling. Why isn’t the Copyright Office doing so, at least as a temporary measure until it’s proven the concept?