17 U.S.C. § 1506 — Conduct of proceedings

(a) In general.
(1) Applicable law. The Copyright Claims Board must conduct proceedings under this chapter, the Register of Copyrights' regulations under this chapter, and relevant legal principles in this title.
(2) Conflicting precedent. If courts have conflicting, irreconcilable precedent on a substantive copyright issue, the Board must use the law of the Federal jurisdiction where the action could have been filed in a United States district court. If more than one jurisdiction qualifies, it must use the one it decides has the strongest connections to the parties and the conduct at issue.

(b) Record. The Board must keep records documenting its proceedings.

(c) Centralized process. Proceedings must:
(1) take place at the Board's offices, without requiring parties or others to appear in person; and
(2) use written submissions, hearings, and conferences conducted through internet applications and other telecommunications facilities. If important physical or other nontestimonial evidence cannot be provided through those facilities, the Board may arrange another way to submit it, as long as the arrangement does not unfairly harm another party^*.

(d) Representation. A party may, but does not have to, be represented by:
(1) an attorney; or
(2) a law student who is qualified under the applicable law for law-student representation and who provides the representation for free.

(e) Commencement of proceeding. To start a proceeding, a claimant^* must file a claim with the Board, subject to additional requirements in the Register's regulations. The claim must:
(1) state the important facts supporting it;
(2) be certified under subsection (y)(1); and
(3) include the filing fee set by the Register's regulations.

(f) Review of claims and counterclaims.
(1) Claims. After a claim is filed under subsection (e), a Copyright Claims Attorney must review it for compliance with this chapter and applicable regulations.
(A) If it complies, the claimant must be told so and instructed to serve the claim under subsection (g).
(B) If it does not comply, the claimant must be told that it is deficient and may file an amended claim within 30 days after receiving the notice, without paying another filing fee. If the claimant files a compliant claim in that period, the claimant must be told so and instructed to serve it. If the refiled claim still does not comply, the claimant must again be notified and given a second 30-day period after that second notice to amend it, again without another filing fee. If the claim is filed again in that second period and complies, the claimant must be told so and instructed to serve it. If it still does not comply, a Copyright Claims Officer must confirm the noncompliance and the proceeding must be dismissed without prejudice. The Board must also dismiss without prejudice a proceeding if a compliant claim is not filed within the applicable 30-day period.
(C)(i) A claim against an online service provider for infringement based on storing, referring to, or linking to infringing material that may receive the liability limits in section 512(b), (c), or (d) is treated as noncompliant unless the claimant affirms in the statement required by subsection (e)(1) that the claimant previously notified the provider of the claimed infringement as required by the applicable section 512(b)(2)(E), (c)(3), or (d)(3), and that the provider did not promptly remove the material or disable access after receiving the notice.
(ii) If a claim is noncompliant under clause (i), the Board must give the claimant information about serving that notice under the applicable section 512 provision.

(2) Counterclaims. After a counterclaim is filed and served, a Copyright Claims Attorney must review it for compliance with this chapter and applicable regulations. If it is deficient, the counterclaimant^* and the other parties must be notified, and the counterclaimant may file and serve an amended counterclaim within 30 days after the notice. If the amended counterclaim complies, the counterclaimant and the other parties must be notified. If a second filing and service within that period still does not comply, the counterclaimant and the other parties must again be notified and the counterclaimant must receive a second 30-day opportunity after the second notice. If the second amended counterclaim complies, the counterclaimant and the other parties must be notified. If it still does not comply, a Copyright Claims Officer must confirm that fact, and the counterclaim—but not the proceeding—must be dismissed without prejudice.

(3) Dismissal for unsuitability. The Board must dismiss a claim or counterclaim without prejudice if it decides, when reviewing it or later in the proceeding, that the matter is unsuitable for the Board to decide. Reasons may include:
(A) a necessary party was not joined;
(B) an essential witness, evidence, or expert testimony is missing; or
(C) deciding a legal or factual issue could exceed the number of proceedings the Board could reasonably administer or the Board's subject-matter competence.

(g) Service of notice and claims. To continue a claim against a respondent^*, the claimant must file proof that the respondent was served within 90 days after being told under subsection (f) to serve the claim. The claimant must serve the respondent with notice of the proceeding and a copy of the claim, either personally or through a waiver of personal service, as the Register's regulations provide. Those regulations must require:
(1) The notice must use the required form and explain the Board and the proceeding, the respondent's right to opt out, and the consequences of opting out or not opting out. It must prominently say that if the respondent does not opt out within 60 days after receiving the notice, the respondent:
(A) loses the opportunity to have the dispute decided by a court created under Article III of the United States Constitution; and
(B) gives up the right to a jury trial about the dispute.
(2) The served claim must be identical to the claim filed with the Board.
(3) Personal service may be performed by someone who is not a party and is over 18.
(4) An individual who is not a minor or incompetent may be served by:
(A) following the State's rules for serving a summons in a case in that State's general-jurisdiction courts;
(B) handing the notice and claim to the individual;
(C) leaving them at the individual's home or usual residence with someone of suitable age and discretion who resides there; or
(D) handing them to the respondent's designated service agent, or, if there is none, to an agent authorized by appointment or law to receive process.
(5)(A) A corporation, partnership, or unincorporated association that can be sued under a common name in general-jurisdiction courts must be served by giving the notice and claim to its service agent. If none has been designated, service must be made either:
(i) by following the State's rules for serving a summons in a case in its general-jurisdiction courts; or
(ii) by giving the notice and claim to an officer, managing or general agent, or another agent authorized by appointment or law to receive process in such a case in that State. If the agent is authorized by statute and the statute requires it, a copy must also be mailed to the respondent.
(B) Such a corporation, partnership, or association may choose a service agent for Board claims by following the Register's regulations. The Register must keep a current public directory of those agents, including online, and may require the entities that designate them to pay the directory's maintenance cost.
(6) To request a waiver of personal service, the claimant may notify the respondent by first-class mail or another reasonable method, as the Register's regulations provide.
(A) The written request must be addressed to the respondent and include the required proceeding notice, a copy of the filed claim, the required waiver form, and prepaid or otherwise free return means.
(B) It must state when it was sent and give the respondent 30 days from that date to return a signed waiver. The signed waiver counts as acceptance and proof of service on the date it is signed.
(7)(A) Waiving personal service does not waive the respondent's right to opt out.
(B) A respondent who timely waives personal service under paragraph (6) and does not opt out must receive 30 extra days, beyond the otherwise applicable period, to submit a substantive response, including defenses and counterclaims.
(8) A minor or incompetent individual may be served only by following the State's rules for serving a summons or similar process on that person in a general-jurisdiction case.
(9) A claim and a waiver of personal service may be served only within the United States.

(h) Notification by Copyright Claims Board. The Register must make regulations for a written notice sent by or for the Board telling the respondent about the pending proceeding. The notice must:
(1) explain the right to opt out and the consequences of opting out or not opting out, and prominently say that not opting out within 60 days after service under subsection (g) makes the respondent lose the opportunity to have the dispute decided by an Article III court and waive the right to a jury trial; and
(2) be additional and separate from the notice required by subsection (g).

(i) Opt-out procedure. After proper service of the notice and claim, a respondent who chooses to opt out has 60 days from service to give the Board written notice of that choice, following the Register's regulations. If the claimant files proof of service and the respondent does not opt out within those 60 days, the proceeding becomes an active proceeding and the respondent is bound by its determination to the extent section 1507(a) provides. If the respondent opts out during the period, the proceeding must be dismissed without prejudice. In exceptional circumstances, the Board may extend the period in the interests of justice after giving the claimant written notice.

(j) Service of other documents. Documents other than the notice and claim must be served as the Register's regulations provide.

(k) Scheduling. Once the Board confirms that a proceeding is active, it must issue a schedule for the rest of the proceeding. The schedule cannot require a claimant or counterclaimant to choose damages at a time inconsistent with section 1504(e). The Board may change the schedule in the interests of justice.

(l) Conferences. One or more Copyright Claims Officers may hold a conference about case management or discovery. The conference must be noted in the record and may be recorded or transcribed.

(m) Party submissions. A proceeding cannot use formal motion practice. However, subject to the Board's rules and procedures:
(1) parties may ask the Board to address case-management or discovery matters and may respond to those requests; and
(2) the Board may ask or allow parties to submit material about relevant facts, law, or other matters, including matters the Officers raise on their own, and to respond.

(n) Discovery. Discovery is limited to relevant information and documents, written interrogatories, and written requests for admission, as the Register's regulations provide. But:
(1) on a party's request and for good cause, the Board may approve limited additional relevant discovery for particular matters. It may also request specific information or documents from participants and voluntary submissions from nonparticipants, consistent with the interests of justice;
(2) on a party's request and for good cause, the Board may issue a protective order limiting disclosure of documents or testimony containing confidential information; and
(3) after notice and an opportunity to respond, and for good cause, the Board may draw an adverse inference about disputed facts against a party that did not timely provide discovery materials in response to a proper request for materials that could be relevant to those facts.

(o) Evidence. The Board may consider these kinds of evidence, without applying formal evidence rules:
(1) documents and other nontestimonial evidence relevant to claims, counterclaims, or defenses; and
(2) testimonial evidence, under penalty of perjury in writing or under subsection (p), limited to relevant statements by parties and nonexpert witnesses. In exceptional cases, the Board may allow expert testimony or other testimony for good cause.

(p) Hearings. The Board may hold a hearing for oral presentations by parties and witnesses about factual or legal issues, including oral testimony.
(1) At least 2 Copyright Claims Officers must attend.
(2) The hearing must be noted in the record and may be recorded or transcribed as the Board decides is necessary, subject to paragraph (3).
(3) Any Officer who did not attend must be given the recording or transcript.

(q) Voluntary dismissal.
(1) By claimant. If a claimant makes a written request before a respondent answers the claim, the Board must dismiss the proceeding, or the requested claim or respondent, without prejudice.
(2) By counterclaimant. If a counterclaimant makes a written request before the claimant answers the counterclaim, the Board must dismiss the counterclaim without prejudice.
(3) Class actions. A party in an active Board proceeding who receives notice of a pending or putative class action arising from the same transaction or occurrence, in which the party is a class member, may ask in writing to dismiss the Board proceeding. After notifying all claimants and counterclaimants, the Board must dismiss it without prejudice.

(r) Settlement.
(1) At any time in an active proceeding, some or all parties may:
(A) jointly ask for a conference with a Copyright Claims Officer to help settlement discussions; or
(B) submit an agreement settling and dismissing some or all claims and counterclaims.
(2) A submission under paragraph (1)(B) may ask the Board to include some or all settlement terms in the proceeding's final determination.

(s) Factual findings. Subject to subsection (n)(3), the Board must decide facts based on the greater weight of the evidence.

(t) Determinations.
(1) A Board determination must:
(A) be decided by a majority of the Board;
(B) be written and explain the factual and legal reasons;
(C) state terms under which a respondent or counterclaim respondent agreed to stop infringing under section 1504(e)(2);
(D) if requested under subsection (r)(2), state agreed settlement terms; and
(E) clearly state all damages and other relief awarded, including relief under subparagraphs (C) and (D).
(2) An Officer who dissents may attach a statement explaining the reasons.
(3) Every final determination must be posted on a publicly accessible website. The Register must regulate publication of other records and information about determinations, including redaction to protect confidential information covered by a protective order under subsection (n)(2).
(4) Information about Board proceedings is exempt from public disclosure under 5 U.S.C. 552(b)(3), except for determinations, records, and information published under paragraph (3).

(u) Respondent's default. If an active respondent fails to appear or stops participating, shown by unjustifiably missing one or more deadlines or requirements in the subsection (k) schedule, the Board may enter a default determination, including dismissing the respondent's counterclaim, under the Register's additional rules.
(1) The Board must require the claimant to provide relevant evidence and other information supporting the claim and any damages. After reviewing that material and any other requested submissions, it must decide whether the material supports the claimant under applicable law and, if so, what relief and damages should be awarded.
(2) If the Board makes that affirmative decision, it must prepare a proposed default determination. It must send written notice to the respondent at every address, including email, in the proceeding's records. The notice must explain that a default determination is pending and its legal significance, include the proposed determination, and give the respondent 30 days from the notice to submit opposing evidence or information.
(3) If the respondent responds within those 30 days, the Board must consider the response, let the other parties address it, and maintain or amend the proposal as appropriate. The resulting determination is not a default determination.
(4) If the respondent does not respond, the Board must issue the default determination as final. The respondent may then challenge it only as section 1508(c) allows. Before additional proceedings under section 1508 begin, the Board may vacate it in the interests of justice.

(v) Claimant's failure to proceed.
(1) Failure to complete service. If the claimant does not serve a respondent within subsection (g)'s 90 days, the Board must dismiss that respondent without prejudice. If the claimant does not serve every respondent in that period, the Board must dismiss the proceeding without prejudice.
(2) Failure to prosecute. If the claimant unjustifiably misses a deadline or requirement in the subsection (k) schedule in an active proceeding, the Board may give written notice and 30 days to respond. After considering any response, it may dismiss the claimant's claims and, when appropriate, award attorneys' fees and costs under subsection (y)(2). The claimant may then challenge the determination only as section 1508(c) allows. Before additional proceedings under section 1508 begin, the Board may vacate the dismissal in the interests of justice.

(w) Request for reconsideration. Within 30 days after the Board issues a final determination, a party may ask in writing for reconsideration or an amendment by identifying a material clear legal or factual error or a technical mistake. After allowing the other parties to respond, the Board must deny the request or issue an amended final determination.

(x) Review by Register. If the Board denies reconsideration under subsection (w), the party may, within 30 days after that denial, ask the Register to review the final determination under the Register's regulations and must pay the reasonable fee required by those regulations. The review is limited to whether the Board abused its discretion in denying reconsideration. After letting the other parties respond, the Register must deny review or send the proceeding back to the Board to reconsider specified issues and issue an amended final determination. That amended determination cannot receive further consideration or review except under section 1508(c).

(y) Conduct of parties and attorneys.
(1) Certification. The Register must establish regulations requiring participants to certify that their statements in Board proceedings are accurate and truthful.
(2) Bad-faith conduct. Despite other law, if a determination is issued and a party is shown to have pursued a claim, counterclaim, or defense to harass, for another improper purpose, or without a reasonable legal or factual basis, the Board must award a harmed party reasonable costs and attorneys' fees unless that would conflict with the interests of justice. The award may not exceed $5,000. If the harmed party represented themselves, the award may cover costs only and may not exceed $2,500. In extraordinary circumstances, such as a demonstrated pattern or practice of this bad-faith conduct, the Board may award more than these limits in the interests of justice.
(3) Additional penalty. If the Board finds that a party did this more than once in a 12-month period, the party is barred from starting a claim under this chapter for 12 months from the finding. Any proceeding that party started and that remains pending must be dismissed without prejudice. If it had become active under subsection (i), it may be dismissed under this paragraph only if the respondent gives written consent.

(z) Regulations for smaller claims. The Register must establish regulations allowing one or more Copyright Claims Officers to consider and decide a claim whose total requested damages do not exceed $5,000, not counting attorneys' fees and costs. Such a determination has the same effect as one issued by the entire Board.

(aa) Opt-out for libraries and archives.
(1) The Register must establish regulations allowing a library or archives that does not want to participate in Board proceedings to opt out before any proceeding.
(2) The regulations must:
(A) explain how to opt out in advance; and
(B) require the Copyright Office to compile and keep a public list of libraries and archives that successfully opted out.
(3) No fee or renewal required. The Register may not:
(A) charge a library or archives for opting out in advance; or
(B) require it to renew that decision.
(4) Definitions. In this subsection, “library” and “archives” mean any library or archives, respectively, that qualifies for the limits on exclusive rights under section 108. This section does not define those quoted terms.