How the Copyright Claims Board Deals with Bad Faith Filers

On March 4, 2024, musician Michelle Shocked filed a claim with the Copyright Claims Board (CCB) against YouTuber John Redstone. The allegations were straightforward: She alleged that Redstone uploaded two of her songs to his YouTube channel using identical visualizations.

However, as part of her supplemental filings, she included a screenshot of a LinkedIn conversation between her and Redstone. In that thread, Redstone did confirm that he uploaded the clip. However, Shocked asked Redstone to participate in the CCB claim, promising to grant him “immunity” if he did so.

Shocked stated that she wasn’t interested in Redstone but in securing a win that would help her target YouTube.

To put it modestly, the CCB disapproved of that.

On March 21, the CCB issued an Order to Show Cause, saying, “It appears that the Claimant may be attempting to use the Board’s time and resources to litigate a claim where no genuine legal dispute exists.”

Shocked responded, saying she was lying to Redstone and that there was a genuine issue. However, the CCB still found that she had acted in bad faith, noting that deceiving a respondent into participating in a claim goes against the principles of the CCB being a voluntary system.

As of this writing, the case is still listed as open, meaning it has not been dismissed. However, the CCB has warned Shocked that if she is found guilty of another finding of bad faith, she may be temporarily barred from filing claims with the CCB.

This isn’t the first time we’ve discussed Michelle Shocked. Earlier this month, we looked at a case where she used the CCB to target someone who resold a thrift store CD. In that claim, the CCB did not find she had acted in bad faith but ruled in favor of the respondent. The CCB said that his resale of a legally purchased CD was simply exercising his right of first sale.

These case highlights the delicate balance the CCB has to maintain, both allowing for mistakes and errors by laypeople and stopping bad actors from abusing the system.

Findings of Bad Faith

Under the CCB’s rules, it can find both a party and their attorney, if they have one, to have acted in bad faith. This includes almost any violation of their standard of conduct. However, the process is focused on using the CCB for an “inappropriate purpose” or not being truthful with filings.

If someone is found to have acted in bad faith, the CCB can award the other party attorneys’ fees and other costs up to $5,000. However, that has not happened yet. The CCB can also bar a claiming and/or their attorney from filing claims with the board for a year. That has happened once.

That case involved Floatsup, who filed a series of cases with the CCB alleging infringement of their products on Amazon. However, the cases targeted respondents who do not reside in the United States and manipulated their filings to get them to go through. The company and their attorney were barred from filing claims with the CCB for one year, ending in late October.

In addition to Floatsup and Shocked, the CCB has issued a finding of bad faith in six other cases.

Four of those cases involved claimants targeting foreign respondents, similar to Floatsup. One case involved a claimant that the CCB did not believe was authorized but filed repeated claims. The final one involved repeated filings that were, in actuality, patent disputes.

The claim was also dismissed in all of the above cases, with one exception: The recent Shocked case.

However, outside of the Floatsup case, the CCB has not taken any additional action and has not barred anyone or awarded attorneys fees.

However, findings of bad faith are not the only way that the CCB can address parties who act inappropriately. They can also issue sanctions, though they have not done so yet.

Sanctions and the CCB

In addition to findings of bad faith, the CCB can also award sanctions under very limited circumstances.

Where findings of bad faith are used in nearly all areas of the CCB, sanctions are limited to discovery. They apply to situations where one party was asked to produce evidence for discovery and failed to do so.

Also, where a finding of bad faith can be initiated unilaterally by the CCB itself, a party must request sanctions. However, many parties may not realize they can do that or they decide it isn’t worthwhile.

That explains why the first (serious) sanction request was filed with the CCB two days ago. That case, 22-CCB-0178 Swamp Servers LLC d/b/a Swamp Servers v. McKelvey, involves an online video game named Swamp Cinema. According to the complaint, a former company employee hosted their own version of the game without permission.

However, as the case has moved forward, the claimant, Swamp Servers, alleges that the respondent, Connor McKelvey, has not turned over all the required discovery documentation. As such, they have filed a request for sanctions, seeking some $2,500 in attorneys’ fees.

A conference to discuss the discovery dispute has been scheduled for next week.

No matter what the CCB decides in this case, it will be the first time it has weighed in on a request for sanctions. That will make it something to watch.

Bottom Line

The CCB has to strike a difficult balance. It’s a system that is meant to be approachable by laypeople. Though all humans will make mistakes, miss deadlines and so forth, laypeople are especially vulnerable when working in a legal environment.

Holding parties to the same standards as lawyers is both impractical and unfair.

However, the CCB must also ensure the system isn’t used to harass or target inappropriate respondents. It has to balance giving leeway to make mistakes and preventing abuse.

To that end, the CCB has focused greatly on separating those who make honest mistakes from those who are deliberately lying or misleading. The CCB has shown great forgiveness and understanding with the former but quickly brings the hammer down on the latter.

In short, if you approach the CCB with honest intent, you’ll likely have no issue, even if you do make a few mistakes. However, try to use it in a way it wasn’t intended to be used, and you’ll likely face at least some reprimand….