If you receive a CCB notice, do not ignore it. If you ignore it and do nothing, the claimant may demonstrate you have been provided sufficient notice and the case may proceed in the CCB where a default judgment could be entered against you. This means that the CCB can enter a judgment holding you responsible for all the damages claimed in the notice (up to $30,000), regardless of whether the assertions are true or whether you could have defenses to the claims. The claimant would submit relevant evidence and other information in support of the claim and any asserted damages, and then the CCB will evaluate the evidence and determine whether the materials provided are sufficient to support a determination in the claimant’s favor—all without your ability to participate and refute the claims.
To avoid a default judgment, you will need to respond within sixty (60) days of service. You can choose to respond in one of two ways:
- Proceed within the CCB tribunal. If you proceed, the case will be heard by the CCB. The CCB predicts that most cases will be handled completely online, so you will not need to travel to Washington D.C. (where the U.S. Copyright Office is physically located). If the claimant wins, you may have to pay up to $15,000 for each infringed work, with a maximum cap of $30,000. CCB determinations are final and legally binding. There are only limited circumstances—such as fraud, corruption, and misrepresentation—when a CCB determination can be reviewed by a federal court or the Copyright Office. By proceeding within the CCB, you also have the option to file a claim seeking a declaration of noninfringement. This could be useful if you are worried about continuing a project under the threat of litigation and want clarity about the validity of the copyright owner’s rights or the application of an exception. You would then need to file a statement in response to the claim, explaining why you contend you have not infringed the claimant’s copyright and asserting any additional defenses and counterclaims. This should be done within the eCCB system.
- Opt out of the CCB proceeding. If you opt out, the copyright claimant cannot restart the same claim against you in front of the CCB. So, if you opt out of the CCB, the claimant can either stop pursuing the matter entirely or decide to file suit against you in federal court (assuming they meet all of the federal court filing requirements). In other words, opting out of a CCB proceeding does not necessarily end the dispute between you and the claimant and does not affect either party’s legal rights. If a respondent opts out or the claim is dismissed, the claimant may still file in federal court. However, generally speaking, federal court is more expensive and the process is more complex than the CCB’s process, so many small claimants may not want to incur the expense or may feel that their allegations will not survive scrutiny in federal court. Also, Washington University employees likely have broader protections in federal court than in the CCB, so a timely opt-out may be a good option.
If you decide to opt out, you must complete and mail the paper opt-out form provided with your notice, or complete an online opt-out form on the CCB website within sixty (60) days of service. You do not need to provide a reason for opting out. Note that if you decide to opt out, your decision applies only in response to that particular claim you received. As an individual (as opposed to certain organizations), you cannot opt out prospectively from all future CCB claims.
A preemptive opt-out allowed to libraries and archives is not available to higher education institutions. Washington University faculty, staff, and students may receive CCB claims for work that they do in the course of their scholarship, teaching, learning, and employment, as well as in their personal endeavors. The question of whether someone’s work was done pursuant to employment might arise as a defense during CCB proceedings and might not constitute automatic disqualification from receiving the CCB notice, but WashU faculty, staff, and students can opt out after receiving a notice.