About this toolkit
The content of this toolkit is informed by the work of Rachael Samberg, scholarly communication officer and program director, Office of Scholarly Communication Services, University of California, Berkeley. It was developed in consultation with ARL copyright counsel Jonathan Band. Nothing in these materials constitutes legal advice. As recommended throughout the toolkit, please work with your university counsel to understand how the laws and regulations described below apply to your institution.
What is the CASE Act?
In 2020, Congress passed the “Copyright Alternative in Small-Claims Enforcement Act,” or “CASE Act.” The Act creates a Copyright Claims Board (CCB), a non-judicial tribunal housed at the Copyright Office, to decide copyright infringement cases; the CCB can award monetary relief of up to $30,000 per proceeding. Notably, if a copyright owner files a claim in the CCB, the recipient of that claim (the “respondent”) can choose to “opt out” of the CCB; if a respondent opts out, then the copyright owner would need to re-file the action in federal court if the copyright owner wishes to continue to pursue the matter.
The CCB is an alternative to judicial proceedings
The impact and value of the CCB may depend on the perspective of the viewer:
- Creators of copyrighted works may view it favorably. Federal litigation is otherwise expensive, and the CCB purports to be more easily accessible for individual creators. The Copyright Office describes the CCB as an equitable way for creators who otherwise may not be able to afford to litigate their copyright infringement claims in federal court to adjudicate “small claims.”
- Users of copyrighted works may bear new hardships. The CCB could incentivize frivolous claims (or claims about uses that would inherently be “fair uses”) against the campus community because it lowers the bar for claimants to file (i.e., claimants are not required to meet federal court filing standards). Proceeding in the CCB can also result in waiver or denial of many of the protections of normal litigation in a federal court, including right to a jury trial, Rule 11 (ethics/ bad faith) sanctions, complete discovery, certain procedural defenses, and most importantly, the right of judicial appeal.
Who on your campus is affected and how?
The following sections describe how key aspects of the CCB affect campuses and campus stakeholders. The implications of these differences will likely shape the guidance or services you provide to different campus actors, and influence how you might work with others on campus to prepare for CCB claims notices.
Most significantly, the CCB has different implications for institutions and their employees than for others on campus like students or researchers who are not acting in an employment capacity. The information and recommendations below distinguish between these groups, and we encourage you to keep this in mind as you plan the type of guidance, services, and support that you may wish to provide.
State governmental entity exclusion
CCB claims cannot be brought against federal or state governmental entities (17 U.S.C. § 1504(d)). Thus, CCB claims cannot be brought against state colleges and universities and their libraries. This exclusion should also extend to the employees (e.g., faculty, lecturers, librarians, etc.) of these institutions to the extent that any complained-of action by these institutional employees was done within the scope of their employment.
However, as discussed below, CCB claims could still be brought against these institutions’ students, or against government institutions’ employees regarding work not performed in the course of their employment. Further, the very 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; thus, employees who receive claims notices should consult university counsel regarding options.
Libraries and archives and their employees
The law includes a special provision allowing libraries and archives to preemptively opt-out of CCB proceedings. This preemptive opt-out would most likely be used by libraries and archives at private educational institutions, as well as public libraries that are not affiliated with higher education and school libraries. Libraries or archives that wish to preemptively opt out must submit written notification to the CCB. A single notice can be used for multiple libraries or archives at the same institution, although each library or archives covered by the notice must be identified. The preemptive opt-out must be effectuated by someone with the legal authority to do so. You may need to consult with university counsel on who at your institution bears such authority.
The regulations provide additional details regarding the opt-out procedures. Importantly, the regulations clarify that an opt-out extends to a library or archive’s employees acting within the scope of their employment. Therefore, library employees doing work in the normal course of their business are not subject to CCB claims if their library has opted out—regardless of whether the institution is public or private.
Note that, while federal and state governmental entities (and their libraries) technically do not need to opt out because they’re already excluded under Section 1504(d), there may be advantages to their opting out anyway: If a state university’s library does not affirmatively opt out, there may be no practical way of putting the public on notice that the library’s employees should not be subject to CCB claims. As such, a decision by state institutions’ libraries to affirmatively opt out even if not required is a matter to discuss with your campus counsel.
Categories of persons/entities remaining subject to CCB claims
Subject to the above-mentioned exclusions, the CASE Act can apply to “everyone else” on campus. What does this mean? The following categories of persons are potentially subject to CCB claims:
- Students (including graduate students if their employment is unrelated to the matter being complained of; e.g., a graduate student is employed in a laboratory but the CCB claim is about images the student included in a dissertation). This is true regardless of whether the university is public or private.
- Employees (e.g., faculty, lecturers, researchers, etc.) of public universities if the complained-of activities are beyond / outside of the scope of their employment (e.g., faculty member uploading copyrighted content to a personal website).
- Non-library employees of private universities regardless of whether the complained-of activities are within or beyond the scope of their employment.
- Private institutions’ libraries (i.e., the library as the recipient entity) that have not opted out.
- Employees of private libraries, for libraries that have not opted out.
Can a CCB claim be properly brought against…
|Type of Stakeholder||Type of Institution|
|Federal or State Government Entity||Private Institution|
|A “library” or “archives”||No||Yes, unless an authorized signatory of the library or archives preemptively opts out of CCB proceedings|
|Employees of the library/archives in the capacity of their employment||No. The issue of whether someone is acting in the capacity of their employment may be decided only after a claim is filed.||Yes, unless an authorized signatory of the library or archives preemptively opts out of CCB proceedings|
|Employees of the institution acting within the scope of their employment||No. The issue of whether someone is acting in the capacity of their employment may be decided only after a claim is filed.||Yes|
|Employees of the institution acting beyond the scope of their employment capacity||Yes||Yes|
Being subject to CCB claims does not necessarily mean that a person will not receive support from the university in the ensuing CCB proceedings, though. Academic institutions both as a matter of law and local policy may have an obligation to defend employees in certain circumstances. Being subject to CCB claims merely means that the above categories of persons should be advised to follow institutional guidance about how to proceed. It may help for the federal/state library/archives to opt out anyway to “signal” to the public that its employees are covered by the institutional exemption.
How do CCB proceedings move forward?
Notice of the proceeding
After a rightsholder files a claim with the CCB, a notice is to be served on the allegedly infringing entity or individual (the claim recipient or “respondent”). It’s critical to explain to your stakeholders that, if someone on your campus receives a notice that a claim has been filed against them in the CCB, the claim itself is not evidence of actual infringement. A notice simply means that a claimant is asserting that the respondent has infringed their copyright by uploading, reproducing, publishing, creating, distributing, performance, or displaying their allegedly copyrighted content. Serving notice on an individual may be accomplished by “complying with State law for serving a summons in an action brought in courts of general jurisdiction in the State where service is made.”
- You may wish to work with your institution’s General Counsel to understand what valid service of process looks like in your state.
- Provide as much information as possible to help those on campus understand what a valid notice looks like, and what it means for a notice to be properly served. In educational materials, include a sentence like, “If you receive a properly-served notice, do not ignore it.”
It is possible that a notice may be served in error. For example, a notice may be served on a state entity or employee, or on a private library that has opted-out of CCB proceedings. The CCB regulations set forth the procedure the recipient of an erroneous notice should follow to dismiss such an erroneous claim. This matters because otherwise “exempt” categories of people may still need to respond to a CCB claims notice in order to demonstrate that the notice was served improperly or is invalid.
Electing to opt-out or proceed
If the notice is served on an entity or individual that is properly within the jurisdiction of the CCB, the entity or individual has two options:
- Opting out of the CCB proceeding: Recipients of a CCB notice have an opportunity to opt out of proceedings in this alternative forum. Opting out essentially forces the rightsholder / claimant’s hand to either drop the matter entirely, or re-file the matter in federal court if they meet the federal filing obligations (which are more stringent).
Anyone who receives a CCB claim notice has 60 days to make this opt-out decision (plus any applicable time added for service of process in that jurisdiction). If someone does not opt out during that 60-day period, the claim will automatically move forward in the CCB and the recipient will lose the right to have the claim “decided by a court created under article III of the Constitution of the United States” with a jury trial.
- Proceeding in the CCB: Alternatively, a CCB claim recipient can choose to proceed within the CCB. Depending on a given university’s policies and the governing law in that state, a CCB claim recipient who chooses to go forward with CCB proceedings may be represented by the institution, or may need to retain their own counsel (or represent themself). The CASE Act included a provision that purports to make legal representation available through law clinics affiliated with universities, but many law clinics may be unwilling to participate in CCB proceedings as they do not feel they have enough staffing or capacity to take on such matters.
In directing or advising people who receive CCB claim notices about choosing between their two options (i.e., opting out of the CCB or proceeding within it), you may wish to discuss the following with your university counsel:
- What rights and protections do employees at your institution have in federal court vs. the CCB?
What legal responsibilities does your institution have regarding provision of legal representation…
- …for employees of libraries and archives acting in the scope of their employment?
- …for individuals on campus who are not employed by libraries or archives?
- Consult your state’s rules for service of process—this may affect how much time a respondent has to opt-out.
- Your campus should determine the best way to responsibly advise potential respondents of their options upon receiving a notice.
What should you do next?
Where can you find more information?
- Copyright Claims Board website: https://ccb.gov/
- 2020 rulemakings: https://www.copyright.gov/about/small-claims/related-rulemakings.html
- Final regulations are available here: https://www.govinfo.gov/content/pkg/FR-2022-05-17/pdf/2022-10466.pdf
- Final Rule—Expedited Registration and FOIA (August 18, 2022): https://www.govinfo.gov/content/pkg/FR-2021-08-18/pdf/2021-17696.pdf
- Final Rule—Copyright Claims Board: Initiating of Proceedings and Related Procedures — Designation of Agents for Service of Process: https://public-inspection.federalregister.gov/2022-04745.pdf
- Final Rule—Small Claims Procedures for Library and Archives Opt-Outs and Class Actions: https://www.govinfo.gov/content/pkg/FR-2022-03-09/pdf/2022-04747.pdf
- Final Rule—Initiating of Proceedings and Related Procedures: https://www.govinfo.gov/content/pkg/FR-2022-03-25/pdf/2022-06264.pdf
Sample communication from libraries to library staff
You may use this template letter to communicate with your campus about the Copyright Claims Board (CCB). The green sections are unique to public universities; you may replace the yellow sections with information that is appropriate for your library, campus, and state context.