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U.S. Copyright Office

The U.S. Copyright Office Proposed Rule Changes For Agreement-Based Counterclaims

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WASHINGTON D.C. (CelebrityAccess) — The U.S. Copyright office is weighing a change to the rules governing Agreement-Based Counterclaims before the Copyright Claims Board.

The proposed rule change, which would address certain types of counterclaims that arise under the Copyright Alternative in Small-Claims Enforcement (“CASE”) Act of 2020, with the Copyright Office proposing that agreement-based counterclaims should have their own content requirements.

The content changes would include the addition of an identification of the agreement that the agreement-based counterclaim is based upon, a brief statement describing how the agreement pertains to the same transaction or occurrence that is the subject of the infringement claim against the counterclaimant, and a brief statement describing how the agreement could affect the relief awarded to the claimant.

The Copyright Office has also proposed that counterclaim respondents describe in detail their disagreement with the facts in the counterclaim, including any description of defenses to the counterclaim, and an explanation of why the counterclaim respondent believes the counterclaimant’s position regarding the agreement lacks merit.

Other changes to includes expanded interrogatories for agreement-based counterclaims with the proposed rule stipulating that “identification and a description of the specific terms or provisions of the agreement, written or oral, that the counterclaimant alleges have been violated; the basis for the counterclaimant’s belief that the agreement was both valid and violated; the reasons why the counterclaimant believes the agreement could affect the relief that might be awarded; a description of the counterclaimant’s performance under the agreement, as relevant to the counterclaim; and identification of any alleged failure in the counterclaim respondent’s performance under the agreement.”

The office also proposed changes to documentation to such counterclaims, to include the agreement at issue and documents related to that agreement, including any amendments or revisions; documents related to the validity of the agreement; and documents related to the parties’ performance under the agreement.

As well, counterclaim respondents must produce documents relevant to damages, including any documents sufficient to show the lack of damages suffered by the counterclaimant from the alleged violation of the agreement.

The copyright board is currently soliciting opinions from stakeholders at:​rulemaking/​agreement-based-counterclaims/​.

Written comments must be received no later than 11:59 p.m. Eastern Time on June 20, 2023.

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