§ 222.5 - Service; waiver of service; filing.

§ 222.5 Service; waiver of service; filing.

(a) In general. Unless specified otherwise, all filings made by a party in CCB proceedings must be filed in eCCB. Except as provided elsewhere in this section, documents are served on a party who is a registered user of the eCCB and filed with the Board by submitting them to eCCB. Service is complete upon filing, but is not effective if the filer learns that it did not reach the person to be served.

(b) Service of initial notice, claim, and related documents -

(1) Timing of service. A claimant may proceed with service of a claim only after the claim is reviewed by a Copyright Claims Attorney and the claimant is notified that the claim is compliant under 37 CFR 224.1.

(2) Service methods.

(i) Service of the initial notice, the claim, and other documents required by this part or the Board to be served with the initial notice and claim shall be made as provided under 17 U.S.C. 1506(g), as supplemented by this section.

(ii) If a corporation, partnership, or unincorporated association has designated a service agent under 17 U.S.C. 1506(g)(5)(B) and § 222.6, service must be made by certified mail or by any other method that the entity specifies in its designation under § 222.6 that it will accept.

(3) Filing of proof of service.

(i) No later than the earlier of seven calendar days after service of the initial notice and all accompanying documents under paragraph (b) of this section and 90 days after receiving notification of compliance, a claimant shall file a completed proof of service form through eCCB. The A claimant shall submit a completed proof of service form shall be located document, using either the proof of service form available on the Board's website or a substantively similar proof of service document that provides all of the information required by the Board's form.

(ii) The claimant's failure to comply with the filing deadline in paragraph (b)(3)(i) of this section may constitute exceptional circumstances justifying an extension of the 60-day period in which a respondent may deliver an opt-out notification to the Board under 17 U.S.C. 1506(i).

(c) Waiver of personal service -

(1) Delivery of request for waiver of service. A claimant may request that a respondent waive personal service as provided by 17 U.S.C. 1506(g)(6) by delivering, via first class mail, the following to the respondent:

(i) A completed waiver of personal service form provided on the Board's website;

(ii) The documents described in § 222.3, including the initial notice and the claim; and

(iii) An envelope, with postage prepaid and addressed to the claimant requesting the waiver or, for a claimant represented by legal counsel or an authorized representative, to that claimant's legal counsel or authorized representative.

(2) Content of waiver of service request. The request for waiver of service shall be prepared using a form provided by the Board that shall -

(i) Bear the name of the Board;

(ii) Include on the first page and waiver page the caption identifying the parties and the docket number;

(iii) Be addressed to the respondent;

(iv) Contain the date of the request;

(v) Notify the respondent that a legal proceeding has been commenced by the claimant(s) before the Board against the respondent;

(vi) Advise that the form is not a summons or official notice from the Board;

(vii) Request that respondent waive formal service of summons by signing the enclosed waiver;

(viii) State that a waiver of personal service shall not constitute a waiver of the right to opt out of the proceeding;

(ix) Describe the effect of agreeing or declining to waive service;

(x) Include a waiver of personal service form provided by the Board, containing a clear statement that waiving service does not affect the respondent's ability to opt out of the proceeding and that, if signed and returned by the respondent, will include -

(A) An affirmation that the respondent is waiving service;

(B) An affirmation that the respondent understands that the respondent may opt out of the proceeding within 60 days of receiving the request;

(C) The name and mailing address of the respondent;

(D) For a respondent that is represented by legal counsel or an authorized representative, the name(s), mailing address(es), email address(es), and telephone number(s) of such legal counsel or authorized representative;

(E) For a respondent that is not represented by legal counsel or an authorized representative, the email address and telephone number of that respondent; and

(F) The typed, printed, or handwritten signature of the respondent or, if the respondent is represented by legal counsel or an authorized representative, the typed, printed, or handwritten signature of the respondent's legal counsel or authorized representative. If the signature is handwritten, it shall be accompanied by a typed or printed name; and

(xi) Not be accompanied by any other substantive communications.

(3) Completing waiver of service. The respondent may complete waiver of service by returning the signed waiver form in the postage prepaid envelope to claimant by mail or, if the claimant also provides an email address to which the waiver of personal service form may be returned, by means of an email to which a copy of the signed form is attached. Waiving service does not affect a respondent's ability to opt out of a proceeding.

(4) Timing of completing waiver. The respondent has 30 days from the date on which the request was sent to return the waiver form.

(5) Filing of waiver. Where the respondent has completed the waiver form, the claimant must submit the completed waiver form to the Board no later than the earlier of seven calendar days after the date the claimant received the signed waiver form from the respondent or 90 days after receiving notification of compliance.

(d) Service by the Copyright Claims Board -

(1) In general. Except as otherwise provided in this paragraph (d), the Board shall serve one copy of all orders, notices, decisions, rulings on motions, and similar documents issued by the Board upon each party through eCCB.

(2) Service of second notice.

(i) The Board shall serve the second notice required under 17 U.S.C. 1506(h) and § 222.4, along with the documents described in § 222.3(b), by sending them by mail to the respondent at the address provided -

(A) In the designated service agent directory, if the respondent is a corporation, partnership, or unincorporated association that has designated a service agent; and, if not,

(B) By the claimant in the claim or, in a subsequent communication correcting the address.

(ii) The Board shall also serve the second notice by email if an email address for the respondent has been provided in the designated service agent directory or by the claimant.

(3) Service of order regarding second filing fee and electronic filing registration on claimants. The Board shall serve the orders set forth in § 222.7 -

(i) On any respondents that have not registered for eCCB in the manner set forth in paragraph (d)(2) of this section; and

(ii) On any claimants that have not registered for eCCB by sending such documents -

(A) By mail at the address provided for the claimant in the claim and by email at the email address provided for the claimant in the claim; or

(B) If the claimant is represented by legal counsel or an authorized representative, by mail at the address provided for such counsel or authorized representative in the claim and by email at the email address provided for such legal counsel or authorized representative in the claim.

(e) Service of discovery requests, responses, and responsive documents -

(1) Service of discovery requests, responses, and responsive documents. Except as provided in paragraph (f) of this section, unless the parties agree in writing to other arrangements, discovery requests and responses shall be served by email and documents or other evidence responsive to discovery requests shall be served by email where the size and format of the documents or evidence make such service reasonably possible. If such documents or other evidence cannot reasonably be served by email, the parties shall confer and agree to other arrangements. Should the parties be unable to agree to other arrangements, such documents or other evidence shall be served by mail. Service is complete upon sending, but service is not effective if the sender learns that it did not reach the party to be served.

(i) If a party is represented by legal counsel or an authorized representative, service under this paragraph must be made on the legal counsel or authorized representative at that legal counsel's or authorized representative's email address, or mailing address provided in the claim, response, or notice of appearance, unless the Board orders service on the party.

(ii) If a party is not represented, service under this paragraph (e)(1) must be made on the party at the email address or mailing address provided by that party in the claim or response.

(2) Filing generally prohibited. Unless the Board orders otherwise, discovery requests and responses should not be filed with the Board unless a party relies on the request or response as part of another filing in the proceeding.

(f) Waiver of electronic filing and service requirements. In exceptional circumstances, an individual not represented by legal counsel or an authorized representative may request that the Board waive the electronic filing and service requirements set forth in this subchapter. Whether such a waiver is granted is at the Board's discretion. If a waiver is granted, the Board shall instruct the parties as to the filing and service requirements for that proceeding based on consideration of the circumstances of the proceeding and the parties.

[87 FR 17000, Mar. 25, 2022, as amended at 87 FR 77520, Dec. 19, 2022]