Bringing or Defending a Claim Before the Copyright Claims Board: A Practical Guide

Summary. This guide walks claimants and respondents through a Copyright Claims Board proceeding step by step, from deciding whether the Board fits the dispute through filing, compliance review, service, the 60-day opt-out window, the active phase, and the final determination. It explains what to file at each stage, the deadlines set by 17 U.S.C. section 1506 and 37 C.F.R. Parts 220 to 234, the fees, and the decision points where claims are won, lost, or dismissed on technicalities. Separate parts cover the claimant's preparation and service, the respondent's investigation and opt-out decision, the response and counterclaims, standard discovery, written testimony and hearings, the smaller claims track, settlement through the Board, and defaults and failures to prosecute. It then covers reconsideration, the Register's review, challenges in district court, and confirming and collecting an award. A worked example follows a small online retailer from service through settlement, and the guide closes with common mistakes, an FAQ, and practical takeaways.

The owner of a two-person stationery shop signs for an envelope and finds three things inside: an official notice from the Copyright Claims Board, a copy of an illustrator's claim, and a one-page opt-out form printed with a confirmation code. Sixty days from that signature, the shop will either be a party to a binding federal proceeding or be out of it entirely, and nothing in the envelope tells the owner which choice is smarter. The illustrator who sent it, meanwhile, has already survived the two stages where most Board claims die.

This guide is for both of them. It follows a Board proceeding in the order things actually happen, with what to file, when, and why. For the doctrine behind each step (the constitutional logic of the opt-out, the leading cases, and the Board's first-years statistics), read the companion article, The Copyright Claims Board: Small Claims Copyright Litigation Under the CASE Act. For a one-page deadline list, use the Copyright Claims Board Filing and Opt-Out Checklist; for fill-in forms, use the Copyright Claims Board Toolkit.

The short answer

• Claimant's path: register the work or at least apply; file a claim on eCCB with a $40 payment; survive compliance review (two chances to fix defects); serve the respondent within 90 days; file proof of service within seven days of service; wait out the 60-day opt-out window; pay the remaining $60; then litigate on paper. 17 U.S.C. § 1506(e)-(i); 37 C.F.R. Part 222.
• Respondent's path: calendar 60 days from service; preserve evidence; compare exposure in court and at the Board; then either opt out on the Board's form with the confirmation code or prepare a response due 30 days after the scheduling order. 37 C.F.R. § 223.1; 37 C.F.R. § 222.8.
• The active case runs on standard discovery forms with no depositions, sworn written testimony with page limits, an optional virtual hearing, and a written determination by majority vote. 37 C.F.R. Part 225; 37 C.F.R. §§ 222.15-222.16.
• Claims of $5,000 or less can use the smaller claims track: one Officer, a merits conference, proposed findings, and no experts. 37 C.F.R. Part 226.
• Missing deadlines is costly for everyone. A silent respondent risks a default determination; a silent claimant risks dismissal with prejudice. 37 C.F.R. Parts 227 and 228.
• After the determination: 30 days to seek reconsideration, 30 more to seek the Register's review, 90 days to challenge in district court on narrow grounds, and one year to confirm an unpaid award. 17 U.S.C. § 1508.

Step zero: decide whether the Board fits, and learn its ground rules

A five-question eligibility screen

Before anyone drafts anything, answer these:

1. Is it a claim the Board can hear? Infringement of a right under 17 U.S.C. § 106, a declaration of noninfringement, or a § 512(f) misrepresentation claim. Not § 1202 (copyright management information), not § 1201 (circumvention), not trademark or contract on their own. 17 U.S.C. § 1504(c)-(d).
2. Is the respondent in the United States, and not a government entity? Respondents abroad and federal or state entities are excluded. § 1504(d)(3)-(4).
3. Is the claim timely? The proceeding must be commenced within three years after the claim accrued. § 1504(b)(1); compare 17 U.S.C. § 507(b).
4. Is the work registered or at least the subject of a complete application? 17 U.S.C. § 1505.
5. Does the money fit? Total recovery is capped at $30,000 per party per proceeding, statutory damages at $15,000 per timely registered work and $7,500 per work (and $15,000 total) otherwise, with no consideration of willfulness and no fee shifting except for bad faith. § 1504(e).

If any answer is no, the Board is the wrong forum. If the dispute is not about money at all, but about stopping an ongoing use, remember that the Board cannot enjoin anything; it can only record a party's agreement to stop. § 1504(e)(2).

Ground rules that apply at every step

• Everything runs through eCCB. Parties register as users, file through fillable forms or uploads, and receive Board orders electronically. 37 C.F.R. §§ 222.2(b), 222.5(a).
• Deadlines that land on a weekend or federal holiday move to the next workday, and electronic filings are due by 11:59 p.m. Eastern Time. 37 C.F.R. § 220.4.
• There are no motions. The statute forbids "formal motion practice." § 1506(m). Instead, the rules sort requests into tiers: routine requests (scheduling changes, conferences, settlement stays, withdrawals) go through a fillable form limited to 4,000 characters with seven days to respond; weightier requests (amendments, intervention, unsuitability, additional discovery, experts, discovery disputes, sanctions, bad faith) are limited to 10,000 characters with 14 days to respond; longer submissions such as party statements are uploaded documents that must be typed, double-spaced, in 12-point type, captioned, and signed. 37 C.F.R. § 220.5. Replies are not allowed unless the rules or the Board permit them. 37 C.F.R. § 220.5(c).
• The Federal Rules do not apply. The Board's procedure and evidence rules are its own. 37 C.F.R. § 222.1. Federal analogies help with judgment, not with citations.
• Representation is flexible. A party may appear on its own, through a lawyer, or through a qualified law student working pro bono under attorney supervision. 17 U.S.C. § 1506(d); 37 C.F.R. § 234.1. A business may appear through a lawyer, an owner, officer, partner, or member, or an authorized employee who files written authorization within 30 days. 37 C.F.R. § 232.6.
• Every submission is a certification. By filing, a participant certifies that the filing is not for an improper purpose and that its legal and factual contentions have support. 37 C.F.R. § 232.2. Claims, responses, and testimony are certified under penalty of perjury.
• Volume is capped. A claimant may file no more than 30 proceedings in any 12-month period, an individual lawyer 40, and a law firm 80. 37 C.F.R. § 233.2.
• Staff can explain procedure, not strategy. Copyright Claims Attorneys answer procedural questions and review claims, but the Board does not give legal advice. 17 U.S.C. § 1503(a)(2). Ex parte contact with the Officers about the merits is prohibited. § 1503(f).

Costs and timing to plan for

The Office revises its fee schedule from time to time, so confirm current amounts on the Board's website before filing.

Part 1 for claimants: building and filing the claim

Step 1: Assemble the record before you open eCCB

A Board claim is decided on paper, so the paper should exist before the claim does. Gather:

• The work and its history: the deposit copy, creation and first-publication dates, and the registration certificate or the service request (SR) number of a pending application.
• Ownership: if you are not the author, the assignment, exclusive license, or employment facts that make you the "legal or beneficial owner of the exclusive right at the time of the infringement." § 1504(c)(1); 17 U.S.C. § 201. Work-made-for-hire questions for commissioned or freelance work turn on agency principles under Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
• The infringement: full-page captures showing the URL, date, and time; archived copies; photographs of physical products and receipts from test purchases; and notes on whether the use is continuing. Captures made by a disinterested person with a documented method persuade more than cropped screenshots. See Authenticating Website Evidence: A Practical Checklist.
• The infringer's identity: the legal entity's exact name and a mailing address, which you can usually confirm in state business-entity records, plus its registered agent. The Board will not let a claim proceed without a respondent address. 37 C.F.R. § 222.2(f).
• Value evidence: your license invoices, rate cards, and comparable deals; anything showing the infringer's sales or savings.
• The paper trail: demand letters, responses, and any DMCA notices and counter-notices.

If you do not know who the infringer is, the Board cannot help you find out; it has no subpoena power. Copyright Claims Attorneys will explain how to use a DMCA subpoena under § 512(h) to identify a potential respondent, § 1503(a)(2)(C), but that subpoena is issued by a federal court clerk and does not reach internet access providers that merely transmit traffic, Recording Industry Ass'n of America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003). For the full toolkit, see Identifying an Anonymous Defendant Online: A Practical Guide.

Step 2: Confirm registration status and plan for the certificate

• No application yet? File one before the claim. The Board accepts a claim only after the Office has received a complete application, deposit, and fee. § 1505(a). The claim lists the SR number. 37 C.F.R. § 222.2(c)(7)(ii)(D).
• Application pending? The Board can accept the claim, but it cannot issue a determination until the certificate issues, and it may hold the case in abeyance until then. § 1505(b). Once the case is active, or once the Board places it in abeyance and grants permission, you may request small claims expedited registration through the Board (not through eCO) for an additional fee; the Office aims to examine within ten business days. 37 C.F.R. § 221.2. If you want the certificate before you file, ordinary special handling through eCO is the alternative. U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 623 (3d ed.).
• Timeliness under § 412. Check whether registration was made before the infringement began or within three months after first publication. 17 U.S.C. § 412. The effective date is the day the Office received the complete application, not the day the certificate arrived. 17 U.S.C. § 410(d). Timeliness sets your per-work cap at $15,000 instead of $7,500.
• Errors on the certificate? A good-faith mistake will not invalidate the registration, Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (2022), but a supplementary registration to correct it is cheap insurance. 37 C.F.R. § 202.6. For the filing mechanics, see How to Register a Copyright with the U.S. Copyright Office.

Step 3: Choose the claim type and the track

Pick the claim that matches your position:

A § 512(f) claimant must prove that the sender knowingly misrepresented infringement; under the leading appellate authority the test is the sender's subjective good faith, which must include consideration of fair use. Rossi v. Motion Picture Ass'n of America, Inc., 391 F.3d 1000 (9th Cir. 2004); Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2016). That is a hard showing; file it only with evidence of what the sender actually knew.

Then pick the track. The smaller claims procedure fits when your realistic recovery is $5,000 or less and the facts are simple; the standard track fits multiple works, provable actual damages above $5,000, or disputes that need real discovery. You may switch freely before service, but afterward only with the other side's consent and the Board's leave. 37 C.F.R. § 226.2. A smaller claim also lowers the respondent's exposure, which makes opting out less tempting.

Joinder is limited: several claimants or respondents may be combined only when all the claims arise from the same allegedly infringing activity or continuous course of activity. § 1504(c)(6). Separate infringements by unrelated parties need separate claims, each counting toward the annual filing limit.

Step 4: Draft and file the claim

The eCCB claim form walks through the elements required by 37 C.F.R. § 222.2(c). For an infringement claim you will provide:

1. The names and mailing addresses of all claimants and respondents, and contact details for any lawyer or representative.
2. For each work: title, author, registration number and effective date or SR number and application date, and the category of work under 17 U.S.C. § 102.
3. A factual description of the infringement: which exclusive rights are at issue, when the infringement began, who participated, what leads you to believe the work was infringed, whether it continues, and where it occurred.
4. For a claim against an online service provider over hosted, cached, or linked material: an affirmation that you sent a compliant takedown notice and the provider failed to act expeditiously. § 1506(f)(1)(C).
5. A statement of harm and the relief sought, which may include an estimate of damages.
6. Whether you request the smaller claims procedure and accept the $5,000 limit.
7. A certification under penalty of perjury, typed-signed by you or your representative.

Attach what makes the claim self-proving: the certificate, the work, the infringing use with URLs and dates, and, for a misrepresentation claim, the notice or counter notice. 37 C.F.R. § 222.2(d). Write the facts chronologically, in short numbered paragraphs, with each exhibit cited where it matters. Then pay the $40 first installment. The Copyright Claims Board Toolkit has model statements for each claim type.

Step 5: Get through compliance review

A Copyright Claims Attorney reviews every claim for compliance with chapter 15 and the rules, including whether it falls within § 1504(c), avoids the exclusions in § 1504(d), respects the damages limits, and states a claim at all. 37 C.F.R. § 224.1(b). The reviewer accepts your facts as stated and does no investigation. 37 C.F.R. § 224.1(f).

If the claim is deficient you will receive a notice identifying the problems. You have 30 days to file an amended claim at no extra charge; if the amended claim is still deficient you get a second notice and another 30 days; a third failure, once an Officer agrees, ends in dismissal without prejudice. § 1506(f)(1)(B); 37 C.F.R. § 224.1(d). Missing either 30-day window also means dismissal. Read every deficiency notice line by line and fix each point it raises, not just the first one.

Through March 2026, 787 of 1,920 claims were dismissed after compliance review, more than any other outcome. Copyright Claims Board, Key Statistics (updated Mar. 2026). The usual fixes are mundane: name the legal entity, give a usable address, identify the exclusive rights and the place of infringement, list the registration or application number, and explain the facts rather than characterizing them ("stole," "pirated") without detail.

Two related rules: once the claim is found compliant you may amend it once as a matter of course before service (it goes back through review), but you may not amend at all during the opt-out period. 37 C.F.R. § 222.12(a)-(b). And at any stage the Board may dismiss a claim as unsuitable, for instance for failure to join a necessary party, subject to a request for reconsideration within 30 days. § 1506(f)(3); 37 C.F.R. § 224.2.

Part 2 for claimants: service and the opt-out window

Step 6: Serve the respondent within 90 days

Once you receive the compliance notice, you have 90 days to serve each respondent and file proof. § 1506(g). The service packet contains the initial notice the Board prepares (download it from eCCB), the claim exactly as found compliant, the opt-out form, and anything else the Board directs. It must not contain anything else: no settlement demand, no letter describing the strength of your claim, no extra exhibits. 37 C.F.R. § 222.3(b).

Your options:

Service must occur within the United States. § 1506(g)(9). Minors and incompetent individuals may be served only under state-law procedures for them. § 1506(g)(8). A waiver request is cheap but slow and voluntary; if the respondent ignores it, you still need personal service inside the 90 days, so do not wait until day 80 to discover that. A respondent who waives keeps its right to opt out and gets 30 extra days to respond if it stays. § 1506(g)(7). The mechanics resemble Fed. R. Civ. P. 4, and so do the practical lessons in Service of Process: Domestic and International Methods That Work.

Step 7: File proof of service on time

File a completed proof of service on eCCB no later than the earlier of seven days after service or 90 days after the compliance notice; a signed waiver must be filed by the earlier of seven days after you receive it or the same 90-day mark. 37 C.F.R. § 222.5(b)(3), (c)(5). Use the Board's form or a document containing everything it asks for. A claimant who fails to complete service on a respondent loses that respondent, without prejudice; a claimant who serves no one loses the proceeding. § 1506(v)(1); 37 C.F.R. § 228.1. Through March 2026, 272 claims ended because valid proof of service was never filed.

Step 8: Wait out the 60 days, and plan for an opt-out

Within 20 days after your proof of service, the Board sends the respondent its own second notice repeating the opt-out warnings. § 1506(h); 37 C.F.R. § 222.4(b). The respondent then has until 60 days after service to opt out. § 1506(i). You may not amend the claim during that period. 37 C.F.R. § 222.12(b). You may, and often should, keep talking settlement, but in separate correspondence, never as a threat about the opt-out deadline.

If the respondent opts out, the claim is dismissed without prejudice and the Board will not let you refile the same acts and theories against that respondent unless it agrees. 37 C.F.R. § 223.1(i). Your choices are then to sue in federal court, negotiate, or let it go. The federal limitations clock did not run while the Board claim was pending. § 1504(b)(2). But a federal suit requires an issued registration, Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019); 17 U.S.C. § 411(a), and statutory damages and fees there depend on § 412 timeliness. For screening the merits before that choice, see the Copyright Infringement Claim Evaluation Checklist.

One more use of the waiting period: if your dispute began with a DMCA takedown and the user has sent a counter-notice, notify the platform's designated agent of the Board proceeding before the material is restored. A qualifying Board claim counts as the "action" that keeps the material down. 17 U.S.C. § 1507(d).

Part 3 for respondents: the first 60 days

Step 1: Calendar the deadline the day you are served

The 60 days run from the date of service, or from the date you signed a waiver of personal service. 37 C.F.R. § 223.1(e); § 1506(g)(6)(B). The Board's second notice, which arrives later, does not restart the clock. If day 60 falls on a weekend or federal holiday, the deadline moves to the next workday; an online opt-out is due by 11:59 p.m. Eastern Time, and a paper opt-out must be postmarked or handed to a carrier by the deadline. 37 C.F.R. § 223.1(e). Write the date down in three places. Then confirm the notice is real by looking up its docket number on the Board's public docket, where the claim itself will be posted.

Step 2: Preserve evidence and call your insurer

Whatever you decide, preserve the evidence now: the web pages and posts at issue, the source files, the license or stock-site receipt, communications with designers or agencies, and sales data for anything that used the work. Taking the material down is often sensible (it stops the clock on damages and supports an agreement to cease), but capture it first. See Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case. Then notify any insurer that might cover advertising or media injury; many policies require prompt notice and give the carrier a voice in forum decisions.

Step 3: Investigate the claim

Work through the claim the way a judge would:

• Who is the claimant, and is it the owner? Look up the registration in the Copyright Office's public catalog: the claimant named on the certificate, the effective date, and whether the work was published. Check the Board's docket for other claims by the same claimant.
• Was registration timely? Compare the effective date of registration with the date your use began and with the date of first publication. That single comparison drives the forum analysis below.
• Did you use it, and where did it come from? A license, a stock-site purchase, a freelance designer, or a client-supplied file may be a complete defense or the basis for an indemnity claim against someone else.
• What defenses fit? License; fair use under 17 U.S.C. § 107, analyzed after Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023); independent creation; lack of protectable expression under Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991); the three-year limitations period, applied with the separate-accrual rule of Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014). Do not count on "hardly anyone saw it": the Ninth Circuit rejected that defense to an unlicensed display in Bell v. Wilmott Storage Services, LLC, 12 F.4th 1065 (9th Cir. 2021).
• What is the use worth? How long it ran, where, whether it was commercial, and what a license would have cost.

For a structured merits review, see Conducting a Fair Use Analysis: A Practical Guide and Litigating Substantial Similarity in a Copyright Case: A Practical Guide.

Step 4: Compare your exposure in each forum

Step 5: Make the decision

Three questions decide most cases:

1. Was the claimant's registration timely for the works at issue? If not, the claimant's federal case is limited to actual damages and profits with no fee award, which often makes a federal suit uneconomic. Staying at the Board would expose you to statutory damages you could never face in court. Opting out is usually the rational choice.
2. If you opt out, will the claimant sue? A claimant with timely registrations, clear copying, and a lawyer who files federal cases is a credible threat; in that case the Board's caps and the absence of fee shifting are a bargain. A self-represented claimant with one work and a modest license history is less likely to follow through.
3. Do you want an answer? If you have a strong defense, a Board determination in your favor precludes the claimant from relitigating the claims decided, at a fraction of the cost of a federal win. 17 U.S.C. § 1507(a).

Layer business judgment on top: the time your team can spend, the insurer's view, whether the dispute involves a practice you repeat across thousands of pages (which argues for a court ruling with precedential value), and whether the same claimant is likely to return. The Copyright Claims Board Toolkit contains an opt-out decision memo that walks through these factors.

Step 6: Opt out correctly, or prepare to participate

To opt out, complete the Board's opt-out notification online through eCCB (with an email address for confirmation) or on the paper form sent with the notices, delivered by first-class mail or a carrier guaranteeing two-day delivery. The notification must include the docket number, your name and mailing address, an affirmation that you will not appear on the claim, a certification under penalty of perjury that you are the respondent or its authorized representative, a signature, and the confirmation code printed on the notices; without the code the opt-out is not complete. 37 C.F.R. § 223.1(b)-(c). Each respondent opts out separately. 37 C.F.R. § 223.1(g). Keep the Board's confirmation. If something truly exceptional prevents a timely decision, ask a Copyright Claims Attorney about an extension before the deadline passes. 37 C.F.R. § 223.1(f).

Three special cases. A respondent that believes the claimant is a serial bad-faith filer may ask the Board for a conference about that pattern before the deadline without waiving its right to opt out. 37 C.F.R. § 232.4(b)(2). A qualifying library or archives may have opted out of all proceedings in advance, though a preemptive opt-out does not cover a claim already found compliant and ordered served before the library's opt-out took effect. 37 C.F.R. § 223.2(a)(6). And a respondent who learns it is a class member in a related class action must opt out of the class or seek dismissal of the Board case within 14 days. 37 C.F.R. § 223.3.

To participate, do nothing about the opt-out and start working: register on eCCB, pull together the evidence from Step 3, decide whether you have a counterclaim (it is due with your response), and calendar the response deadline as soon as the scheduling order issues.

Part 4: the active proceeding begins

The order to pay and register

When the opt-out window closes for every served respondent, the Board issues an order giving the claimant 14 days to pay the $60 second installment and requiring every party to register on eCCB. 37 C.F.R. § 222.7(a). A claimant who misses the payment gets a reminder and 14 more days, then a dismissal without prejudice unless the interests of justice require otherwise. 37 C.F.R. § 222.7(c). A respondent who never registers risks default. 37 C.F.R. § 222.7(b)(2).

The scheduling order

After the 14-day period the Board issues a scheduling order setting dates for the response, a pre-discovery conference, interrogatory answers, document production, requests for additional discovery, the close of discovery, a post-discovery conference, and the written testimony. 37 C.F.R. § 222.11(b). Requests to change it go through the short-form request process, and the Board may amend it for counterclaims, settlement, or docket management. 37 C.F.R. § 222.11(d).

The response

The respondent's response is due 30 days after the scheduling order issues, or 60 days if it waived personal service. 37 C.F.R. § 222.8(e). It is filed on the Board's response form and must include contact details, a short statement disputing any facts in the claim, a detailed statement of why there was no infringement and every other defense (including any exception in §§ 107 through 122), any counterclaims, and a certification under penalty of perjury. 37 C.F.R. § 222.8(b). Use the form. The Board ordered parties in Santora to refile on the proper templates, and the claimant's failure to answer a counterclaim on the required form contributed to the dismissal of his claim. Santora v. Copyright Claims Board, No. 25-1055 (TJK) (D.D.C. Mar. 26, 2026). A response that never arrives may be treated as a default. 37 C.F.R. § 222.8(f).

Counterclaims and the response to them

A respondent may counterclaim for infringement, for a declaration of noninfringement, for § 512(f) misrepresentation, or under an agreement about the same transaction that could affect the claimant's relief, such as a license. 37 C.F.R. § 222.9(a), (c)(2). Counterclaims run only against the claimant, stay within the damages caps, and are filed with the response unless the Board permits a later filing for good cause. 37 C.F.R. § 222.9(e); § 1504(c)(4). In a smaller claims proceeding a counterclaim may seek no more than $5,000. 37 C.F.R. § 226.3. Counterclaims go through compliance review with the same two chances to cure; a counterclaim that still fails is dismissed without taking the proceeding with it. § 1506(f)(2). The claimant then has 30 days from the compliance notice to respond on the Board's form, and a missing response may be treated as a default on the counterclaim. 37 C.F.R. § 222.10.

Amendments, new parties, and consolidation

After service, pleadings may be amended only with the Board's leave, which turns on prejudice (including any effect on a respondent's opt-out rights), delay, and whether the new matter should have been known earlier. 37 C.F.R. § 222.12(d). A person whose absence would prevent complete relief or impair its own interests is a necessary party; such a party may ask to intervene, and if any existing party objects the Board dismisses the case without prejudice rather than forcing the joinder. 37 C.F.R. § 222.14. (In Santora, the foundation that owns and licenses the original Addams Family rights was admitted as a necessary party after the claimant failed to oppose its request in time.) The Board may also consolidate related proceedings for discovery, evidence, or hearings while keeping the determinations and awards separate. 37 C.F.R. § 222.13.

Part 5: discovery the Board's way

What standard discovery covers

Discovery is exchanged between the parties, not filed, and it uses the Board's standard forms. 37 C.F.R. § 225.1(a). The forms change with the claim type, but the core is predictable:

• Standard interrogatories ask every party to identify its witnesses and other people with knowledge, any agreements between the parties, its harm or damages, and relevant documents it knows of but does not have. A party asserting infringement must also cover registration, ownership, publication, how the work was created, how the respondent had access, why the party believes the use infringes, when it discovered the use, and what it did to stop it before filing. A party defending against infringement must cover its own ownership and creation of the accused material, how it was disseminated, every defense with "a detailed basis," any continued use, and its revenues, profits, and deductible expenses from the accused use. 37 C.F.R. § 225.2.
• Standard document requests call for the documents a party is likely to use, the documents it knows of that conflict with its position, and the documents behind its interrogatory answers, plus type-specific items such as the work and its registration file, the infringing material, licensing records, and financial records. 37 C.F.R. § 225.3(a)-(g).

The forms resemble a compressed version of Fed. R. Civ. P. 33 and Fed. R. Civ. P. 34, with built-in limits that suit small cases. Each party must make a reasonable search, including email and computer files, but need not go beyond what a layperson could easily do or hire a vendor; dumping irrelevant or duplicative material is prohibited and may be bad faith. 37 C.F.R. § 225.3(h). Interrogatory answers are certified as accurate and truthful, and productions as genuine and unaltered. 37 C.F.R. § 225.1(a)(1). Confidential communications with counsel about the merits need not be produced or logged; any other privilege claim needs the Board's leave. 37 C.F.R. § 225.3(i). Both duties to update continue through the case. 37 C.F.R. §§ 225.2(h), 225.3(h)(4).

Asking for more

Anything beyond the standard set must be requested on the 10,000-character form, with the exact requests written out, a detailed explanation of need, and a statement of whether the other side consents. The Board grants additional discovery only for good cause and only if the request is narrowly tailored, not already covered, "highly likely" to produce information on core issues, and not unduly burdensome. 37 C.F.R. § 225.4(a). Requests for admission need leave and are disfavored; unlike Fed. R. Civ. P. 36, an unanswered request is not automatically admitted, though the Board may deem it admitted. 37 C.F.R. § 225.4(c). Expert testimony needs leave, is "highly disfavored," and is allowed only when the case cannot fairly proceed without it; the request must name the expert, the topics, and the expected cost, and an opponent gets a rebuttal expert as of course. 37 C.F.R. § 225.4(b). There are no depositions. 37 C.F.R. § 225.4(d). The Board itself may request documents from participants and voluntary submissions from nonparticipants, but it has no subpoena power. § 1506(n)(1).

Protective orders

Either party may invoke the Board's standard protective order, which limits discovery material to use in the proceeding and allows "confidential" designations only for bona fide nonpublic financial information, nonpublic business and product plans, and genuinely personal information, designated document by document. 37 C.F.R. § 222.19(a). Confidential material is filed under seal with a redacted public copy. Custom protective orders are disfavored, and certain personal identifiers must always be redacted from public filings. 37 C.F.R. § 222.19(b)-(c).

Disputes and sanctions

Confer first; the rules require a good-faith attempt to resolve any dispute before involving the Board. If that fails, request a discovery conference on the 10,000-character form, attaching the inadequate answers. The Board will rule and set a compliance date. If the other side still does not comply, send a notice giving it 10 days, and then request sanctions. 37 C.F.R. § 225.5. The most important sanction is statutory: after notice and an opportunity to respond, the Board may draw an adverse inference on disputed facts against a party that failed to provide proper discovery. § 1506(n)(3). For a respondent who will not disclose its revenues, that inference can do the damages work that discovery could not.

Part 6: written testimony, hearings, and the determination

Building the written record

After discovery closes, the party asserting a claim or counterclaim files written direct testimony on the scheduled date; the responding party files response testimony within 45 days of service of the direct; the claimant may file reply testimony within 21 days after that. 37 C.F.R. § 222.15(a). Direct and response testimony each contain three parts:

1. Documentary evidence, with a list that describes each document and explains how it bears on a claim or counterclaim. Absent leave for good cause, you may use only documents that were served in discovery. 37 C.F.R. § 222.15(b)(1).
2. Witness statements, sworn under penalty of perjury, organized in numbered paragraphs, limited to facts within the witness's personal knowledge, and free of legal argument. 37 C.F.R. § 222.15(b)(2). The attestation language of 28 U.S.C. § 1746 is a sensible model.
3. A party statement of no more than 12 pages setting out the party's position on the key facts, the damages, and the law. A claimant states its damages election here or in a separate short statement, and may change the election until the final determination; a respondent may state that, if found liable, it will agree to cease or mitigate, which the Board considers only on damages. 37 C.F.R. § 222.15(b)(3).

Reply testimony may only rebut specific evidence in the response, may not repeat earlier evidence, and comes with a reply party statement of no more than seven pages. 37 C.F.R. § 222.15(c). After the reply, nothing more is filed unless the Board asks or permits it. 37 C.F.R. § 222.15(f).

What a claimant must prove. Ownership (the certificate, plus any chain of title), copying (direct evidence such as an identical file or matching metadata, or access plus substantial similarity), and damages (license invoices, rate cards, the respondent's own revenue figures). Where similarity is contested, the respondent will argue that only unprotectable elements overlap; Rentmeester v. Nike, Inc., 883 F.3d 1111 (9th Cir. 2018) shows how carefully courts filter a photograph's protectable choices, and the Board applies the governing circuit's test. § 1506(a)(2).

What a respondent should prove. Every affirmative defense needs evidence, not just assertion: the license and the invoice, the designer's sketches and dates for independent creation, the purpose and character of the use for fair use. On damages, show the shorter duration, the narrower scope, the lower going rate, and the agreement to cease.

Because the formal rules of evidence do not apply, § 1506(o), hearsay and authentication objections go to weight rather than admissibility. Facts are found by a preponderance of the evidence. § 1506(s). Make each key document easy to trust: who created it, when, and how it was kept. The habits described in Capturing the Web: A Practitioner's Guide to Authenticating Website Screenshots as Evidence in Federal Court translate directly.

Hearings

Any party may request a hearing in its party statement or by a short-form request no later than seven days after the reply deadline, but the Board decides in its sole discretion whether to hold one. 37 C.F.R. § 222.16(a)-(c). Hearings are virtual, at least two Officers attend, and they may be recorded. § 1506(p); 37 C.F.R. § 222.16(b). Attendance is limited to the parties, their representatives, and witnesses unless the Board allows others, witnesses may be excluded except while testifying, and a party wanting an official transcript pays the reporter. 37 C.F.R. § 229.1(c)-(d). Documents submitted with the written testimony are deemed admitted as exhibits; new evidence requires leave. 37 C.F.R. § 222.20. Prepare as you would for an appellate argument with live witnesses: a short opening, command of your exhibits, and crisp answers to the Officers' questions.

The determination

A determination is reached by a majority of the Board and must explain its factual and legal basis in writing, include any agreed cessation terms and any settlement terms the parties asked the Board to adopt, and state all damages and other relief clearly. A dissenting Officer may append a statement. § 1506(t)(1)-(2). Final determinations are published on a public website. § 1506(t)(3).

Part 7: the smaller claims track, step by step

1. Elect it in the claim. Check the box and accept the $5,000 limit on total damages. 37 C.F.R. § 222.2(c)(11). The initial notice will tell the respondent the case is a smaller claim and explain the differences. 37 C.F.R. § 222.3(a)(16).
2. Service and opt-out work exactly as in a standard case.
3. Initial scheduling order. After the second payment, the order sets the response deadline and an initial conference with the presiding Officer. 37 C.F.R. § 226.4(b).
4. Initial conference. The Officer explains the process, discusses the claims, defenses, and settlement, and decides whether any documents beyond those attached to the claim and response are needed; any production order must be narrow. A separate settlement conference, if held, goes to a different Officer. 37 C.F.R. § 226.4(c).
5. Merits conference scheduled. 37 C.F.R. § 226.4(d)(1).
6. Fourteen days before the merits conference, each side files its evidence (already served on the other side), an optional statement of up to seven pages, and any witness statements. No later than seven days before, a party may ask that an opposing witness appear for questions; a no-show witness's statement may still be accepted but given less weight. 37 C.F.R. § 226.4(d)(2).
7. The merits conference. Each side addresses the other's materials and argues its position; the Officer may question parties and witnesses. 37 C.F.R. § 226.4(d)(4).
8. Proposed findings of fact, including any adverse inference the Officer is considering. 37 C.F.R. § 226.4(e).
9. Twenty-one days to respond, in up to five pages, together with the claimant's damages election and the respondent's statement on agreeing to cease, if not already made. 37 C.F.R. § 226.4(e)(1)-(3).
10. Final determination by the presiding Officer, with the same effect as a determination of the full Board. 37 C.F.R. § 226.4(f); § 1506(z). If the respondent stops participating, the case moves to the default procedures, and a default determination requires at least two Officers. 37 C.F.R. § 226.4(f)(2).

No expert testimony is permitted on this track. 37 C.F.R. § 226.4(h).

Part 8: settling a Board case

Settlement can happen at any time, and the Board must raise it at the pre-discovery and post-discovery conferences. 37 C.F.R. § 222.18(a). The Board's tools are worth using:

• Settlement conference. Some or all parties may jointly request a conference with an Officer; an unopposed request is granted after seven days. The Officer who runs it will not help decide the case unless the other Officers cannot agree. § 1506(r)(1)(A); 37 C.F.R. § 222.18(b)-(c), (e).
• Position statements. Three days before the conference, each party emails the presiding Officer a statement of no more than five pages (plus up to 20 pages of exhibits) covering the facts and contentions, the relief sought, whether the conduct continues, and prior offers. These are not filed on eCCB. 37 C.F.R. § 222.18(d).
• Stays. The Board may stay the case for 30 days to let the parties negotiate, and extend the stay on a good-faith request. 37 C.F.R. § 222.18(f).
• Documenting the deal. The parties file a joint request to dismiss. Dismissal is with prejudice unless they ask otherwise. They may also ask the Board to adopt some or all of their terms in a final determination, which it will do unless the terms are "clearly unconscionable." § 1506(r)(2); 37 C.F.R. § 222.18(g)-(h).

That last option deserves thought. Terms adopted into a final determination become "relief awarded in a final determination," which the winner can confirm and enforce in district court under § 1508(a), with the enforcement costs shifted to the party that failed to comply. The price is publicity, because final determinations are posted publicly. A common compromise is to ask the Board to adopt only the payment and cessation terms and keep the rest of the agreement private. The first final determination the Board ever issued, in February 2023, adopted the parties' settlement. CASE Act Study, 90 Fed. Reg. 11626 (Mar. 10, 2025).

A Board settlement agreement should cover, at a minimum, the payment amount and due date, the takedown or cessation commitment with a deadline, any retroactive or forward license, the scope of the releases, the absence of any admission, any limited confidentiality, withdrawal of any pending DMCA notices, and what happens on nonpayment. For drafting detail, see Drafting a Settlement Agreement and Release: A Practical Guide and Mediation and Settlement: Preparing, Negotiating, and Documenting the Deal.

Part 9: defaults, failures to prosecute, and recovering from a missed deadline

If you are a respondent who missed something

The Board's default process is a series of off-ramps, and the first job is to take one:

1. The first notice. After a missed deadline, on a party's request or its own initiative, the Board sends a notice through eCCB, by mail, and to every known email address, explaining the consequences of default and giving 30 days to cure. 37 C.F.R. § 227.1(a)-(b).
2. The second notice. If 15 days pass without a response, a second notice repeats the warning and the original 30-day deadline. 37 C.F.R. § 227.1(b)(2).
3. Cure, or at least re-engage. Curing the missed step puts the case back on schedule. A late response that shows intent to re-engage gets considered, and the Board may grant more time. A respondent can cure at least twice; a third missed deadline without good cause lets the Board go straight to default proceedings. 37 C.F.R. § 227.1(c)-(d).
4. The proposed default determination. If default proceedings begin, the claimant must file written direct testimony, and the Board decides whether the evidence supports a finding for the claimant, considering any meritorious defense. If it does, the Board serves a proposed default determination, and the respondent has 30 days to submit opposing evidence in the form of response testimony. 37 C.F.R. §§ 227.2-227.4. A respondent who responds at this stage turns the outcome into an ordinary final determination, which it may challenge only by reconsideration, not as a default. 37 C.F.R. § 227.5(a).
5. After a final default determination. The respondent may ask the Board to vacate it within 30 days, in up to 12 pages, if no § 1508 proceeding has started. 37 C.F.R. § 227.5(c). Otherwise, it may ask a district court within 90 days to vacate it for excusable neglect. § 1508(c)(1)(C).

"Excusable neglect" is a familiar phrase: courts applying it under Fed. R. Civ. P. 60(b) use the equitable test of Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), weighing prejudice, the length of the delay, the reason for it, and good faith, and a court reviewing a Board default would likely look to the same factors. A respondent who ignored three notices will struggle under any test.

If you are a claimant who missed something

A claimant who misses a deadline in an active case receives the mirror-image process: a notice with 30 days to cure, a second notice after 15 days, and consideration of any late effort to re-engage. 37 C.F.R. § 228.2. The difference is the ending: a dismissal for failure to prosecute is with prejudice and may include a fee award. 37 C.F.R. § 228.2(d). The claimant may ask the Board within 30 days to vacate it in the interests of justice, or seek district court relief for excusable neglect. 37 C.F.R. § 228.2(e); § 1508(c)(1)(C). Withdrawing is not a safe exit either: a withdrawal filed after the response normally produces a dismissal with prejudice. 37 C.F.R. § 222.17(c).

Habits that prevent all of this

• Assign one person to watch eCCB notifications, and route Board email to an address someone checks daily.
• Calendar every deadline in the scheduling order the day it issues, with reminders a week and two days out.
• If a deadline will be missed, ask for more time before it passes, using the short-form request to amend the schedule. 37 C.F.R. § 222.11(d)(2).
• Keep your contact information current on eCCB; the Board serves notices at the addresses in its records.

Part 10: after the determination

Three practical points. First, only a party whose reconsideration request was denied may seek the Register's review, so a party that wants that option must ask for reconsideration first. 37 C.F.R. § 231.2. Second, no other path to court exists: actions of the Officers and the Register are reviewable only under § 1508(c), not under the Administrative Procedure Act, 17 U.S.C. § 1503(g); compare 5 U.S.C. § 702, and a challenge that does not identify a final determination and a statutory ground will be dismissed, as Santora shows. Third, confirmation is the winner's enforcement tool. The court must also order the noncomplying party to pay the reasonable expenses of obtaining confirmation, including attorney's fees. § 1508(a). The resulting judgment can be registered in other districts under 28 U.S.C. § 1963, enforced by execution under Fed. R. Civ. P. 69, and accrues post-judgment interest under 28 U.S.C. § 1961. For collection mechanics, see Collecting a Judgment: Discovery in Aid of Execution, Liens, Levies, and Garnishment and the Award Enforcement Toolkit: Petitions, Vacatur Motions, and Judgment Collection.

For a respondent, the lesson runs the other way: pay a final determination you do not intend to challenge. Ignoring it converts a capped award into a federal judgment plus the claimant's enforcement fees.

A worked example: an online retailer served with a claim

Suppose Juniper & Vale Paper Co. LLC, a two-owner stationery business in Columbus, Ohio, sells greeting cards on its own site and on a large handmade-goods marketplace. In February it receives, by first-class mail, a waiver-of-service request from a lawyer for Dana Whitfield, an illustrator in Asheville, enclosing the Board's notice and a claim. The claim alleges that Juniper's holiday card copies Whitfield's watercolor of a fox in a red scarf, published on September 1 and registered on October 15, and it seeks statutory damages on the standard track.

Days 0 to 10: service and calendaring. Juniper's owners sign and return the waiver on February 20, which fixes service as of that date and starts the 60-day opt-out clock. They calendar April 21 (day 60) and note that, if they stay, they will get an extra 30 days to respond. They look up the docket number on the Board's public docket and find the claim posted there.

Days 10 to 30: investigation. The card was designed by a freelancer hired through an online marketplace under a contract with an IP warranty and an indemnity. The freelancer's files show a saved reference image, and it is Whitfield's painting. The registration's effective date (October 15) is within three months of publication, so it is timely under § 412. Juniper sold 412 cards at $6, about $2,470 in revenue and roughly $1,300 in profit. The card is pulled from sale the same week, after the listing pages are captured.

Days 30 to 45: the decision. In federal court, Whitfield's timely registration would support statutory damages of $750 to $30,000 for the one work, a willfulness argument given the saved reference, and a possible fee award, and she has a lawyer who files federal cases. At the Board, the worst case is $15,000, each side pays its own costs, and no willfulness finding is possible. Juniper's general liability insurer, notified on day 12, agrees under a reservation of rights that Juniper may proceed at the Board. Juniper decides to stay. It also sends the freelancer a written indemnity demand, because a claim against the freelancer is not a permissible counterclaim against Whitfield.

Days 61 to 120: the active phase begins. The Board orders the second payment and eCCB registration, then issues a scheduling order. Juniper files its response within 60 days (30 plus 30 for the waiver). It admits selling the card, explains the freelancer's role, argues that some similarities (a fox, a scarf, a snowy background) are unprotectable ideas, states that it has stopped selling the card, and says it will agree to a cease requirement.

Discovery. Using the standard forms, Juniper produces its sales records and the freelancer's files, including the reference image; Whitfield produces her sketches, layered source file, and a license she signed with a card company for $1,200 per design per season. Neither side asks for additional discovery.

Settlement. At the post-discovery conference the Officer raises settlement, and the parties jointly request a settlement conference. Each emails a five-page position statement three days ahead. With a different Officer presiding, they agree on $4,500 payable in two installments, destruction of the remaining 68 cards, a retroactive license for the cards sold, releases limited to this design, and no admission of liability. They file a joint request for dismissal with prejudice and ask the Board to adopt the payment and cessation terms in a final determination, keeping the rest of the agreement private. The Board does so.

Afterward. Juniper pays on time. If it had not, Whitfield could have confirmed the adopted terms in district court and recovered her enforcement costs. Juniper pursues the freelancer's indemnity separately. Total elapsed time: about eight months, with legal fees on each side a fraction of what a federal answer and discovery would have cost.

Common mistakes and how to avoid them

Frequently asked questions

Can I bring the same claim at the Board and in federal court? No. A claim pending in court is excluded from the Board unless the court stays it to let the Board proceed, and a court must stay a claim already pending at the Board. §§ 1504(d)(2), 1509(a). A court may also refer a case to the Board as a form of alternative dispute resolution if the parties consent. § 1509(b).

Can I use the Board against an anonymous infringer? Not until you can name and serve a respondent. The Board has no subpoena power; identifying the person usually requires a DMCA subpoena or a court proceeding first.

I filed as a smaller claim. Can I switch to the standard track after service? Only with the consent of the other parties and the Board's leave. 37 C.F.R. § 226.2.

Do self-represented parties have to answer the standard interrogatories? Yes. The forms are written for laypeople, and the duties to search, certify, and update apply to everyone. 37 C.F.R. §§ 225.1-225.3.

Can I present a witness? Yes, through a sworn written statement filed with your testimony. A live appearance happens only if the Board holds a hearing or, in a smaller claim, if the other side asks for the witness at the merits conference.

Can a respondent counterclaim for something unrelated, like an unpaid invoice? Only if the counterclaim arises under an agreement about the same transaction and could affect the claimant's relief, or arises under § 106 or § 512(f) from the same transaction. § 1504(c)(4).

Who can help me for free? Law school clinics and pro bono organizations listed in the Board's directory may represent parties through supervised students. 37 C.F.R. § 234.2. Board staff can explain procedures but cannot give legal advice.

How do I get a certified copy of the determination for a confirmation petition? Request it from the Board in writing and pay the fee in the Office's schedule. 37 C.F.R. § 229.2.

What if the other side files a frivolous claim or defense? Ask for a conference about bad-faith conduct. If the Board agrees, it can award fees and costs, generally up to $5,000, and repeat offenders face a one-year filing bar. § 1506(y); 37 C.F.R. §§ 232.3-232.4.

Practical takeaways

• Treat the claim form like a complaint and the compliance review like a motion to dismiss you can cure twice; most claims that fail never get past these steps.
• Serve early, serve correctly, and file proof within seven days.
• Respondents should count 60 days from service, run the two-forum exposure comparison, and decide on the facts, not on irritation.
• In the active phase, the Board's forms are mandatory and its deadlines are real; ask for extensions before deadlines, not after.
• Build the written record to stand alone: an indexed set of documents, sworn witness statements, and a tight party statement.
• Use the Board's settlement machinery, and consider having payment and cessation terms adopted into a final determination so they can be enforced under § 1508.
• After a determination, the review paths are short and narrow; calendar them the day the determination issues.

This document is general information, not legal advice for any particular situation; the law changes, and the facts matter.

Related Documents

Related Articles

• The Copyright Claims Board: Small Claims Copyright Litigation Under the CASE Act: the doctrine, constitutional framework, leading cases, and statistics behind this guide.
• Copyright Damages and Remedies: Statutory Damages, Profits, Injunctions, and Fees: the federal remedies that frame every opt-out decision.
• Answering a Federal Complaint: Denials, Affirmative Defenses, Counterclaims, and Judgment on the Pleadings: what a respondent faces if it opts out and is sued.
• Capturing the Web: A Practitioner's Guide to Authenticating Website Screenshots as Evidence in Federal Court: building evidence the Officers will trust.

Related Guides

• Litigating Substantial Similarity in a Copyright Case: A Practical Guide: proving or rebutting copying in the written record.
• Identifying an Anonymous Defendant Online: A Practical Guide: finding the respondent you must name and serve.
• Service of Process: Domestic and International Methods That Work: practical service techniques that carry over to Board claims.
• Drafting a Settlement Agreement and Release: A Practical Guide: documenting a Board settlement.
• Responding to a Cease and Desist Letter: A Practical Guide: handling the demand that often precedes a Board claim.

Related Checklists

• Copyright Claims Board Filing and Opt-Out Checklist: A Practical Checklist: the deadlines and decisions in this guide, as a checklist.
• Responding to a DMCA Takedown with a Counter-Notice: A Practical Checklist: the counter-notice process that a Board claim can interrupt.
• Authenticating Website Evidence: A Practical Checklist: capture steps for online infringement evidence.
• Small Claims Filing and Hearing Checklist: A Practical Checklist: habits from state small claims practice that translate well.

Related Toolkits

• Copyright Claims Board Toolkit: Claim Statements, Opt-Out Decisions, and Settlement Templates: templates for every step in this guide.
• Copyright Infringement Litigation Toolkit: Similarity Charts, Expert Reports, and Filtration Analyses: similarity charts adaptable to a Board party statement.
• Self-Represented Litigant Toolkit: Forms, Filings, Hearings, and Collection: general tools for parties appearing without a lawyer.