PART 205—LEGAL PROCESSES Authority: 17 U.S.C. 702. Source: 69 FR 39334, June 30, 2004, unless otherwise noted. Subpart A—General Provisions § 205.1 Definitions. For the purpose of this part: Demand Document Employee General Counsel, Legal proceeding Office Official business Testimony United States [82 FR 9364, Feb. 6, 2017] § 205.2 Address for mail and service; telephone number. (a) Mail under this part should be addressed to the General Counsel at the address specified in § 201.1(c)(1) of this chapter. (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 Copyright Information Section, 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. [69 FR 39334, June 30, 2004, as amended at 73 FR 37840, July 2, 2008; 82 FR 9365, Feb. 6, 2017] § 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 § 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. § 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. §§ 205.6-205.10 [Reserved] Subpart B—Service of Process § 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 the Office's 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. [69 FR 39334, June 30, 2004, as amended at 82 FR 9365, Feb. 6, 2017] § 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 § 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. § 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 to the General Counsel of the Copyright Office to the General Counsel of the Copyright Office via email to [email protected]. The notice must be in the form of a letter, as an attached file, that is clearly identified as a 411(a) notice. Both the letter and the email's subject line should state: “Section 411(a) Notice to the Register of Copyrights.” Attachments must be submitted in Portable Document Format (PDF), assembled in an orderly form, and uploaded as individual electronic files ( i.e., [69 FR 39334, June 30, 2004, as amended at 73 FR 37840, July 2, 2008; 82 FR 9365, Feb. 6, 2017; 85 FR 10604, Feb. 25, 2020] § 205.14 Court requests to the Register of Copyrights pursuant to 17 U.S.C. 411(b)(2). Where there is an allegation that a copyright registration certificate includes inaccurate information with knowledge that it was inaccurate and the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration, pursuant to 17 U.S.C. 411(b)(2), the court shall request the opinion of the Register of Copyrights to advise the court whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration. The request should be sent to the General Counsel of the Copyright Office via email to [email protected] [85 FR 10605, Feb. 25, 2020] § 205.15 Court notices to the Register of Copyrights pursuant to 17 U.S.C. 508. Pursuant to 17 U.S.C. 508, within one month after the filing of any action under title 17, notice of the names and addresses of the parties and the title, author, and registration number of each work involved in the action, including any other copyrighted work later included by subsequent amendment, answer, or other pleading, must be served by the clerk of the court on the Register of Copyrights. Further, the clerk of the court must notify the Register within one month after any final order or judgment is issued in the case, sending with the notification a copy of the order or judgment together with the written opinion, if any, of the court. These notices must be sent to the General Counsel of the Copyright Office via email to [email protected] https://www.uscourts.gov/forms/other-forms/report-filing-or-determination-action-or-appeal-regarding-copyright [85 FR 10605, Feb. 25, 2020] §§ 205.16-205.20 [Reserved] 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. (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. § 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 Records Research and Certification 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 http://www.copyright.gov. (1) Demands for testimony or documents. (2) Affidavits. e.g., (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 Records Research and Certification Section under existing regulations without the prior authorization of the General Counsel. Without prior approval from the General Counsel of the Copyright Office, 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 General Counsel of the Copyright Office. (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 General Counsel of the Copyright Office at the phone number indicated in § 205.2 of this part and shall immediately forward the demand to the 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. (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 Touhy Ragen, [69 FR 39334, June 30, 2004, as amended at 73 FR 37840, July 2, 2008; 82 FR 9365, Feb. 6, 2017] § 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 § 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. (c) In exceptional circumstances, the General Counsel may waive the limitations set forth in paragraph (b) of this section pursuant to § 205.3. [69 FR 39334, June 30, 2004, as amended at 82 FR 9365, Feb. 6, 2017] Subpart D—Ex Parte Communications Source: 88 FR 54493, Aug. 11, 2023, unless otherwise noted. § 205.24 Ex Parte communications in informal rulemakings. (a) General. ex parte (b) Applicability. ex parte (2) An ex parte (i) Communications made prior to the publication of a Federal Register (ii) Non-substantive inquiries, such as those regarding the status of a rulemaking or the Copyright Office's procedures; (iii) Communications made by members of Congress, Federal departments and agencies, the Judiciary, foreign governments, or state and local governments; or (iv) Communications required by law. (3) To the extent that communications made on Copyright Office web pages, including social media pages, would be considered ex parte (c) Process Submitting an ex parte meeting request. ex parte (A) The Copyright Office employee listed as the contact for further information in the Federal Register (B) The Copyright Office's Assistant to the General Counsel. The current contact information for this employee can be obtained by contacting the Copyright Office. (ii) If a party makes an ex parte (iii) The Copyright Office permits ex parte ex parte e.g., (iv) The request should be submitted by email. If email submission of an ex parte (2) Ex parte meeting request content. ex parte (i) The names of all proposed attendees; (ii) The party or parties on whose behalf each attendee is appearing; and (iii) The rulemaking that will be discussed. (3) Ex parte meeting summary. ex parte (B) Meeting attendees representing different groups may submit a joint summary letter, but if the groups represent conflicting viewpoints, the groups must submit separate summary letters. (C) If a party's ex parte ex parte (D) If the ex parte (d) Publication of ex parte communications. Ex parte (e) Impermissible communications General; attempts to circumvent the ex parte communication process. ex parte (2) Other impermissible communications Post-deadline communications. ex parte Federal Register (ii) New documentary material. (B) The restriction in this paragraph (e)(2)(ii) does not apply to any Copyright Office requests, e.g., (C) The restriction in this paragraph (e)(2)(ii) does not apply to non-substantive visual aids used in an ex parte (f) Effect of impermissible ex parte communications. ex parte