[Federal Register: June 30, 2004 (Volume 69, Number 125)]
[Rules and Regulations]
[Page 39333-39337]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jn04-4]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 205
[Docket No. RM 2004-2A]
Legal Processes
AGENCY: Copyright Office, Library of Congress.
[[Page 39334]]
ACTION: Final rule.
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SUMMARY: The Copyright Office is publishing a final rule concerning
legal processes. These regulations govern procedures for the service of
process on the Copyright Office, the Register of Copyrights or an
employee of the Copyright Office acting in his or her official capacity
and the production of Office documents and testimony of Office
employees in legal proceedings. These regulations will serve as a
statement of Office policy and provide comprehensive guidelines for the
Office and its employees, outside agencies, and other persons regarding
the appropriate procedures in these areas.
DATES: Effective Date: July 30, 2004.
FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Associate
General Counsel, or Robert Kasunic, Principal Legal Advisor, Copyright
GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC 20024-0400.
Telephone (202) 707-8380. Telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION: On February 23, 2004, the Copyright Office
published a notice of proposed rulemaking seeking comment on its
proposed revision of part 205 of subchapter A of chapter II, 37 CFR.
Generally, part 205 establishes rules governing service of complaints,
summonses, subpoenas and other legal process on the Copyright Office
and its employees in their official capacities. Under the proposed
revision, subpart A sets forth the definitions for the part, the
addresses for legal service, and waiver of the rules. Subpart B
establishes the requirements for service of legal process on an
employee of the Copyright Office concerning information acquired in the
course of performing official duties or because of the employee's
official relationship with the Office and clarifies the requirements
for service on the Register of Copyrights pursuant to 17 U.S.C. 411(a).
Subpart C prescribes policies and procedures of the Copyright Office
governing testimony by an Office employee in his or her official
capacity and the production of Office documents pursuant to a demand,
request, subpoena, or order for use in legal proceedings in which the
Office is not a party. The goal of these proposed rules is to ensure
that service intended for the Office and its employees will be
expeditiously handled and that documents relating to litigation
actually reach the responsible Copyright Office personnel. The
centralized procedures reflected in these rules are necessary for the
Office's timely response to service of legal process. For a thorough
summary of the proposed rules, see 69 FR 8120 (Feb. 23, 2004).
In response to the publication of the proposed rules, the Copyright
Office received one comment from the Chair of the Plain Language Action
and Information Network, a group advocating the use of plain language
in Government Communications. The commenter begins by questioning the
number of copies of individual comments required and the failure to
provide an option for electronic submission. Then the commenter
proposed stylistic changes to the proposed rules.
The Copyright Office has considered the points raised by the
commenter, but finds that the regulatory text, as originally drafted,
is preferable in the present context and is consistent with and modeled
on comparable regulations by other agencies. These particular rules
address legal processes, and thus, are written largely for lawyers who
are considering serving legal documents upon the Copyright Office or
its employees. In this context, the use of common Latin phrases or a
common legal term more succinctly conveys the necessary information.
Similarly, given the complex and varied nature of legal processes, the
Copyright Office strove to keep related requirements in unified
sections so that readers would be alerted to all of the relevant
considerations for a particular type of process, e.g., demands for
documents and testimony.
Consequently, the Copyright Office is adopting the previously
proposed text, as a final rule, without substantive change, as follows:
List of Subjects in 37 CFR Part 205
Copyright, Service of process, Testimony by employees and
production of documents in legal proceedings.
Final Regulations
0
In consideration of the foregoing, the Copyright Office revises 37 CFR
part 205 as follows:
PART 205--LEGAL PROCESSES
Subpart A--General Provisions
Sec.
205.1 Definitions.
205.2 Address for mail and service; telephone number.
205.3 Waiver of rules.
205.4 Relationship of this part to the Federal Rules of Civil and
Criminal Procedure.
205.5 Scope of this part related to Copyright Office duties under
title 17 of the U.S. Code.
Subpart B--Service of Process
205.11 Scope and purpose.
205.12 Process served on the Register of Copyrights or an employee
in his or her official capacity.
205.13 Complaints served on the Register of Copyrights pursuant to
17 U.S.C. 411(a).
Subpart C--Testimony by Employees and Production of Documents in Legal
Proceedings in Which the Office is Not a Party
205.21 Scope and purpose.
205.22 Production of documents and testimony.
205.23 Scope of testimony.
Authority: 17 U.S.C. 702.
Subpart A--General Provisions
Sec. 205.1 Definitions.
For the purpose of this part:
Demand means an order, subpoena or any other request for documents
or testimony for use in a legal proceeding.
Document means any record or paper held by the Copyright Office,
including, without limitation, official letters, deposits,
recordations, registrations, publications, or other material submitted
in connection with a claim for registration of a copyrighted work.
Employee means any current or former officer or employee of the
Copyright Office, as well as any individual subject to the
jurisdiction, supervision, or control of the Copyright Office.
General Counsel, unless otherwise specified, means the General
Counsel of the Copyright Office or his or her designee.
Legal proceeding means any pretrial, trial, and post trial stages
of existing or reasonably anticipated judicial or administrative
actions, hearings, investigations, or similar proceedings before
courts, commissions, boards or other tribunals, foreign or domestic.
This phrase includes all phases of discovery as well as responses to
formal or informal requests by attorneys or others involved in legal
proceedings. This phrase also includes state court proceedings
(including grand jury proceedings) and any other state or local
legislative and administrative proceedings.
Office means the Copyright Office, including any division, section,
or operating unit within the Copyright Office.
Official business means the authorized business of the Copyright
Office.
Testimony means a statement in any form, including a personal
appearance before a court or other legal tribunal, an interview, a
deposition, an affidavit or declaration under penalty of perjury
pursuant to 28 U.S.C. 1746, a telephonic, televised, or videotaped
[[Page 39335]]
statement or any response given during discovery or similar proceeding,
which response would involve more than the production of documents,
including a declaration under 35 U.S.C. 25 or a declaration under
penalty of perjury pursuant to 28 U.S.C. 1746.
United States means the Federal Government, its departments and
agencies, individuals acting on behalf of the Federal Government, and
parties to the extent they are represented by the United States.
Sec. 205.2 Address for mail and service; telephone number.
(a) Mail under this part should be addressed to the General
Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station,
Washington, DC 20024-0400.
(b) Service by hand shall be made upon an authorized person from
8:30 a.m. to 5 p.m., Monday through Friday in the Public Information
Office, U.S. Copyright Office, Library of Congress, James Madison
Memorial Building, Room LM-401, 101 Independence Avenue, SE.,
Washington, DC. Persons authorized to accept service of process are the
General Counsel of the Copyright Office and his or her designees.
(c) The Office of the General Counsel may be reached by telephone
during normal business hours specified in paragraph (b) of this section
at 202-707-8380.
Sec. 205.3 Waiver of rules.
In extraordinary situations, when the interest of justice requires,
the General Counsel may waive or suspend the rules of this part, sua
sponte or on petition of an interested party, subject to such
requirements as the General Counsel may impose on the parties. However,
the inclusion of certain legal processes within the scope of these
rules, e.g., state legal proceedings, does not represent a waiver of
any claim of immunity, privilege, or other defense by the Office in a
legal proceeding, including but not limited to, sovereign immunity,
preemption, or lack of relevance. This rule does not create any right
or benefit, substantive or procedural, enforceable at law by a party
against the Copyright Office, the Library of Congress, or the United
States.
Sec. 205.4 Relationship of this part to the Federal Rules of Civil
and Criminal Procedure.
Nothing in this part waives any requirement under the Federal Rules
of Civil or Criminal Procedure.
Sec. 205.5 Scope of this part related to Copyright Office duties
under title 17 of the U.S. Code.
This part relates only to legal proceedings, process, requests and
demands relating to the Copyright Office's performance of its duties
pursuant to title 17 of the United States Code. Legal proceedings,
process, requests and demands relating to other matters (e.g., personal
injuries, employment matters, etc.) are the responsibility of the
General Counsel of the Library of Congress and are governed by 36 CFR
part 703.
Subpart B--Service of Process
Sec. 205.11 Scope and purpose.
(a) This subpart provides the procedures governing service of
process on the Copyright Office and its employees in their official
capacity. These regulations provide the identity of Copyright Office
officials who are authorized to accept service of process. The purpose
of this subpart is to provide a centralized location for receipt of
service of process to the Office. Such centralization will provide
timely notification of legal process and expedite Office response.
Litigants also must comply with all requirements pertaining to service
of process that are established by statute, court rule and rule of
procedure including the applicable provisions of the Federal Rules of
Civil Procedure governing service upon the United States.
(b) This subpart does not apply to service of process made on an
employee personally for matters not related to official business of the
Office. Process served upon a Copyright Office employee in his or her
individual capacity must be served in compliance with the applicable
requirements for service of process established by statute, court rule,
or rule of procedure.
Sec. 205.12 Process served on the Register of Copyrights or an
employee in his or her official capacity.
(a) Summonses, complaints and all other process directed to the
Copyright Office, the Register of Copyrights or any other Copyright
Office employee in his or her official capacity should be served on the
General Counsel of the Copyright Office or his or her designee as
indicated in Sec. 205.2 of this part. To effect proper service, the
requirements of Rule 4(i) of the Federal Rules of Civil Procedure must
also be satisfied by effecting service on both the United States
Attorney for the district in which the action is brought and the
Attorney General, Attn: Director of Intellectual Property Staff,
Commercial Litigation Branch, Civil Division, Department of Justice,
Washington, DC 20530.
(b) If, notwithstanding paragraph (a) of this section, any employee
of the Office is served with a summons or complaint in connection with
the conduct of official business, that employee shall immediately
notify and deliver the summons or complaint to the Office of the
General Counsel of the Copyright Office.
(c) Any employee receiving a summons or complaint shall note on the
summons or complaint the date, hour, and place of service and mode of
service.
(d) The Office will accept service of process for an employee only
when the legal proceeding is brought in connection with the conduct of
official business carried out in the employee's official capacity.
(e) When a legal proceeding is brought to hold an employee
personally liable in connection with an action taken in the conduct of
official business, rather than liable in an official capacity, the
employee is to be served in accordance with any applicable statute,
court rule, or rule of procedure. Service of process in this case is
inadequate when made only on the General Counsel. An employee sued
personally for an action taken in the conduct of official business
shall immediately notify and deliver a copy of the summons or complaint
to the General Counsel of the Copyright Office.
Sec. 205.13 Complaints served on the Register of Copyrights pursuant
to 17 U.S.C. 411(a).
When an action has been instituted pursuant to 17 U.S.C. 411(a) for
infringement of the copyright of a work for which registration has been
refused, notice of the institution of the action and a copy of the
complaint must be served on the Register of Copyrights by sending such
documents by registered or certified mail to the General Counsel of the
Copyright Office, GC/I&R, P.O. Box 70400, Southwest Station,
Washington, DC 20024-0400, or delivery by hand addressed to the General
Counsel of the Copyright Office and delivered to the Public Information
Office, U.S. Copyright Office, Library of Congress, James Madison
Memorial Building, Room LM-401, 101 Independence Avenue, SE.,
Washington, DC. The notice must be in the form of a letter that is
clearly identified as a 411(a) notice. Both the letter and the envelope
should state: ``Section 411(a) Notice to the Register of Copyrights.''
In compliance with Fed. R. Civ. P. Sec. 4(i), a notice of the
institution of the action and a copy of
[[Page 39336]]
the complaint must also be served on both the United States Attorney
for the district in which the action is brought and the United States
Department of Justice, directed to the Attorney General, Attn: Director
of Intellectual Property Staff, Civil Division, Department of Justice,
Washington, DC 20530.
Subpart C--Testimony By Employees and Production of Documents in
Legal Proceedings in Which the Office Is Not a Party
Sec. 205.21 Scope and purpose.
(a) This subpart prescribes policies and procedures of the
Copyright Office governing testimony, in legal proceedings in which the
Office is not a party, by Office employees in their official capacities
and the production of Office documents for use in legal proceedings
pursuant to a demand, request, subpoena or order.
(b) The purpose of this subpart is:
(1) To conserve the time of Office employees for conducting
official business;
(2) To minimize the possibility of involving the Office in the
matters of private parties or other issues which are not related to the
mission of the Office;
(3) To prevent the public from confusing personal opinions of
Office employees with Office policy;
(4) To avoid spending the time and money of the United States for
private purposes;
(5) To preserve the integrity of the administrative process,
minimize disruption of the decision-making process, and prevent
interference with the Office's administrative functions.
(c) An employee of the Office may not voluntarily appear as a
witness or voluntarily testify in a legal proceeding relating to his or
her official capacity without proper authorization under this subpart.
(d) This subpart does not apply to any legal proceeding in which:
(1) An employee is to testify regarding facts or events that are
unrelated to official business; or
(2) A former employee is asked to testify as an expert on a matter
in which that employee did not personally participate while at the
Office so long as the former employee testifies concerning his or her
personal opinion and does not purport to speak for or on behalf of the
Copyright Office.
Sec. 205.22 Production of documents and testimony.
(a) Generally, all documents and material submitted to the
Copyright Office as part of an application to register a claim to
copyright are available for public inspection and copying. It is
possible, therefore, to obtain those materials without use of a legal
process. Anyone seeking such documents must contact the Certifications
and Documents Section of the Office. 37 CFR 201.2(b)(1). Certified
copies of public documents and public records are self-authenticating.
FED. R. EVID. 902 and 1005; see also, FED. R. CIV. p. 44(a)(1). In
certain specified circumstances, information contained in the in-
process files may be obtained by complying with the procedures of 37
CFR 201.2(b)(3). Correspondence between a copyright claimant or his or
her agent and the Copyright Office in a completed registration,
recordation, or refusal to register is also available for public
inspection. Section 201.2(d) of this chapter prescribes the method for
requesting copies of copyright registration records. An attorney
engaged in actual or prospective litigation who submits a court order
or a completed Litigation Statement may obtain a copy of the deposit if
his or her request is found to comply with the requirements set out in
37 CFR 201.2(d)(2). The fees associated with various document requests,
searches, copies, and expedited handling are listed in 37 CFR 201.3.
Other publications containing Copyright Office procedures and practices
are available to the public without charge from the Copyright Office or
its Web site: http://www.copyright.gov. The Office website also allows
online searching of copyright registration information and information
pertaining to documents recorded with the Copyright Office beginning
January 1, 1978. Pre-1978 copyright registration information and
document recordation information is available to the public in the
Copyright Office during regular business hours. If the information
sought to be obtained from the Office is not available through these
Office services, demands and subpoenas for testimony or documents may
be served as follows:
(1) Demands for testimony or documents. All demands, requests,
subpoenas or orders for production of documents or testimony in a legal
proceeding directed to the Copyright Office, the Register of Copyrights
or any other Copyright Office employee in his or her official capacity
must be in writing and should be served on the General Counsel of the
Copyright Office as indicated in Sec. 205.2 of this part and in
accordance with the Federal Rules of Civil or Criminal Procedure.
(2) Affidavits. Except when the Copyright Office is a party to the
legal proceeding, every demand, request or subpoena shall be
accompanied by an affidavit or declaration under penalty of perjury
pursuant to 28 U.S.C. 1746. Such affidavit or declaration shall contain
a written statement setting forth the title of the legal proceeding;
the forum; the requesting party's interest in the legal proceeding; the
reasons for the demand, request, or subpoena; a showing that the
desired testimony or document is not reasonably available from any
published or other written source, (e.g. 37 CFR, Chapter II; Compendium
II, Compendium of Copyright Office Practices; other written practices
of the Office; circulars; the Copyright Office website) and is not
available by other established procedure, e.g. 37 CFR 201.2, 201.3. If
testimony is requested in the affidavit or declaration, it shall
include the intended use of the testimony, a detailed summary of the
testimony desired, and a showing that no document could be provided and
used in lieu of the requested testimony. The purpose of these
requirements is to permit the Copyright General Counsel to make an
informed decision as to whether testimony or production of a document
should be authorized. The decision by the General Counsel will be based
on consideration of the purposes set forth in Sec. 205.21(b) of this
part, on the evaluation of the requesting party's need for the
testimony and any other factor warranted by the circumstances.
Typically, when the information requested is available through other
existing Office procedures or materials, the General Counsel will not
authorize production of documents or testimony.
(b) No Copyright Office employee shall give testimony concerning
the official business of the Office or produce any document in a legal
proceeding other than those made available by the Certifications and
Documents Section under existing regulations without the prior
authorization of the General Counsel. Without prior approval from the
General Counsel, no Office employee shall answer inquiries from a
person not employed by the Library of Congress or the Department of
Justice regarding testimony or documents in connection with a demand,
subpoena or order. All inquiries involving demands, subpoenas, or
orders shall be directed to the Copyright General Counsel.
(c) Any Office employee who receives a demand, request, subpoena or
order for testimony or the production of documents in a legal
proceeding shall immediately notify the Copyright Office General
Counsel at the phone number indicated in Sec. 205.2 of this part and
[[Page 39337]]
shall immediately forward the demand to the Copyright General Counsel.
(d) The General Counsel may consult or negotiate with an attorney
for a party or the party, if not represented by an attorney, to refine
or limit a demand, request or subpoena to address interests or concerns
of the Office. Failure of the attorney or party to cooperate in good
faith under this part may serve as the basis for the General Counsel to
deny authorization for the testimony or production of documents sought
in the demand.
(e) A determination under this part regarding authorization to
respond to a demand is not an assertion or waiver of privilege, lack of
relevance, technical deficiency or any other ground for noncompliance.
The Copyright Office reserves the right to oppose any demand on any
appropriate legal ground independent of any determination under this
part, including but not limited to, sovereign immunity, preemption,
privilege, lack of relevance, or technical deficiency.
(f) Office procedures when an employee receives a demand or
subpoena:
(1) If the General Counsel has not acted by the return date, the
employee must appear at the time and place set forth in the subpoena
(unless otherwise advised by the General Counsel) and inform the court
(or other legal authority) that the demand has been referred for the
prompt consideration of the General Counsel and shall request the court
(or other legal authority) to stay the demand pending receipt of the
requested instructions.
(2) If the General Counsel makes a determination not to authorize
testimony or the production of documents, but the subpoena is not
withdrawn or modified and Department of Justice representation cannot
be arranged, the employee should appear at the time and place set forth
in the subpoena unless advised otherwise by the General Counsel. If
legal counsel cannot appear on behalf of the employee, the employee
should produce a copy of these rules and state that the General Counsel
has advised the employee not to provide the requested testimony or to
produce the requested document. If a court (or other legal authority)
rules that the demand in the subpoena must be complied with, the
employee shall respectfully decline to comply with the demand, citing
United States ex rel.Touhy v. Ragen, 340 U.S. 462 (1951).
Sec. 205.23 Scope of testimony.
(a)(1) If a Copyright Office employee is authorized to give
testimony in a legal proceeding, the testimony, if otherwise proper,
shall be limited to facts within the personal knowledge of the Office
employee. An Office employee is prohibited from giving expert
testimony, or opinion, answering hypothetical or speculative questions,
or giving testimony with respect to subject matter which is privileged.
If an Office employee is authorized to testify in connection with his
or her involvement or assistance in a proceeding or matter before the
Office, that employee is further prohibited from giving testimony in
response to an inquiry about the bases, reasons, mental processes,
analyses, or conclusions of that employee in the performance of his or
her official functions.
(2) The General Counsel may authorize an employee to appear and
give expert testimony or opinion testimony upon the showing, pursuant
to Sec. 205.3 of this part, that exceptional circumstances warrant
such testimony and that the anticipated testimony will not be adverse
to the interest of the Copyright Office or the United States.
(b) If an Office employee is authorized to testify, the employee
will generally be prohibited from providing testimony in response to
questions which seek, for example:
(1) To elicit information about the employee's:
(i) Qualifications to examine or otherwise consider a particular
copyright application.
(ii) Usual practice or whether the employee followed a procedure
set out in any Office manual of practice in a particular case.
(iii) Consultation with another Office employee.
(iv) Familiarity with:
(A) Preexisting works that are similar.
(B) Registered works, works sought to be registered, a copyright
application, registration, denial of registration, or request for
reconsideration.
(C) Copyright law or other law.
(D) The actions of another Office employee.
(v) Reliance on particular facts or arguments.
(2) To inquire into the manner in and extent to which the employee
considered or studied material in performing the function.
(3) To inquire into the bases, reasons, mental processes, analyses,
or conclusions of that Office employee in performing the function.
(4) In exceptional circumstances, the General Counsel may waive
these limitations pursuant to Sec. 205.3 of this part.
Dated: June 24, 2004.
Marybeth Peters,
Register of Copyright.
Approved by:
James H. Billington,
Librarian of Congress.
[FR Doc. 04-14852 Filed 6-29-04; 8:45 am]
BILLING CODE 1410-30-P