(a) Effect of opt-out on particular proceeding. A respondent may opt out of a proceeding before the Copyright Claims Board (Board) pursuant to 17 U.S.C. 1506(i) following the procedures set forth in this section. A respondent's opt-out shall result in the dismissal of the claim without prejudice.
(b) Content of opt-out notification. The respondent's opt-out notification shall include—
(1) The docket number assigned by the Board and contained in either the initial notice served by the claimant or the second notice;
(2) The respondent's name;
(3) The respondent's mailing address;
(4) An affirmation that the respondent shall not appear before the Board with respect to the claim served by the claimant;
(5) A certification under penalty of perjury that the individual completing the notification is the respondent identified in the claim served by the claimant or is the legal counsel or authorized representative of the respondent identified in the claim and has been directed and authorized by the respondent to opt out of the particular proceeding; and
(6) The typed, printed, or handwritten signature of the respondent or its legal counsel or authorized representative, and, if the signature is handwritten, a typed or printed name.
(c) Process of opting out. Upon being served with a notice and claim, a respondent may complete the opt-out process by—
(1) Completing and submitting the Board's online opt-out notification form available through the Board's electronic filing system (eCCB) as identified in the initial notice and second notice and providing an email address for confirmation; or
(2) Completing and submitting the paper opt-out notification form included with the initial notice and second notice, providing a mailing address or email address to receive confirmation, and delivering it to the Board, either by—
(i) First-class mail, or other class of mail that is at least as expeditious, postage prepaid; or
(ii) A third party commercial carrier, that guarantees delivery no later than two days from the day of deposit with the service.
(3) An online or paper opt-out notification is not complete unless the confirmation code, provided with both the initial notice and second notice, is included in the submission.
(d) Effect of improper service. If a respondent is improperly served under 37 CFR 222.5 and completes the opt-out process described in paragraph (c) of this section, a respondent's timely opt-out will still be effective and result in the dismissal of the claim without prejudice.
(e) Timing of opt out. The respondent has 60 days from the date of service or waiver of service to provide notice of its opt-out election. When the last day of that period falls on a weekend or a Federal holiday, the ending date shall be extended to the next Federal work day.
(1) When opting out via the online form under paragraph (c)(1) of this section, the respondent's opt-out notification must be submitted by 11:59 p.m. Eastern Time on the last day of the opt-out period.
(2) When opting out under paragraph (c)(2) of this section, the respondent's opt-out notification must be postmarked, dispatched by a commercial carrier, courier, or messenger, or hand-delivered to the Office no later than the 60-day deadline.
(f) Extension of opt-out period. The Board may extend the 60-day period to opt out in exceptional circumstances and in the interests of justice and upon written notice to the claimant. Either a respondent individually or the parties jointly may contact the Board through a Copyright Claims Attorney to request an extension of the opt-out period.
(g) Multiple respondents. In claims involving multiple respondents, each respondent who elects to opt out must separately complete the opt-out process.
(h) Confirmation of opt-out. When a respondent has completed the opt-out process, the Board shall notify all parties to the proceeding.
(i) Effect of opt out on refiled claims. If the claimant attempts to refile a claim against the same respondent(s), covering in substance the same acts and the same theories of recovery after the respondent's initial opt-out notification, the Board shall apply the prior opt-out election and dismiss the claim unless the claimant can demonstrate that the respondent affirmatively has agreed to resubmission of the parties' dispute to the Board for resolution.
(j) Effect of opt-out on unrelated claims. The respondent's opt-out for a particular claim shall not be construed as an opt-out for claims involving different acts or different theories of recovery.
[87 FR 17007, Mar. 25, 2022]