Miami University Copyright Conference Episode

Miami University Copyright Conference Episode

Will CrossYou are tuned in to Copyright Chat. Copyright Chat is a podcast dedicated to discussing important copyright matters. Host Sara Benson, the copyright librarian from the University of Illinois, converses with experts from across the globe to engage the public with rights issues relevant to their daily lives.

Sara: Welcome to a fun and exciting and unique episode of Copyright Chat. Today, I am here at the Copyright Conference at Miami University, live, creating an episode of Copyright Chat along with Will Cross. We’ve been talking about the Scholarly Communication Notebook and my podcast’s involvement in it, in teaching and learning. And our audience has live, live polled, decided that what we’re going to talk about today is potential liability under the CASE Act and sovereign immunity, which is a very timely topic. So I’m very excited to talk about this. There’s a lot going on at the Copyright Office with the CASE Act and their proposed rules. So I would love to see if a member of our audience has a question they’d like to start us off with, about either sovereign immunity or the CASE Act. Yeah, someone just posted that the October 4th deadline is weighing heavily on them. It’s September 29th and we have until October 4th to respond to the call for comment. Will, have you made any comment to the Copyright Office in response to that call?

Will: That’s a great question, Sara, and I wonder if it would be useful to give a very quick, like 30-second overview of the topic just so people know what they’re thinking about. I see several hands raised as well. So I’ll, I’ll say that, that very quickly, yes, I’ve been involved with several, several groups including the EUIPO that I know you are part of as well, and Sara, you released a really nice ALA-sponsored resource in this area. So yeah, we’ve been thinking about this issue a lot. We did a webinar last week talking to a bunch of different librarians as well. So I see several hands raised.


Sara: Yeah, I think Alvin, would you like to ask a question?


Alvin: I work at a land-grant, and we should, should, enjoy sovereign immunity. Does that immunity extend to librarians and the scope of their job?


Sara: That’s a really good question. And, so, sovereign immunity generally would protect individuals who work there in the scope of their employment, at least protecting them from large damages. So I’ll use an example. I think most of us on this call are aware of the Georgia State University case, right, where Georgia State was sued for their E-reserves policy, where they said that a flat percentage could be copied from a textbook for E-reserves use. And of course, we know that there’s no flat percentage that equals a fair use. And the court actually said that at one point in the case, which was helpful to us copyright librarians. So, that doesn’t mean that they’re immune from suit. It does mean that they would be immune from the large damages, because that’s what sovereign immunity protects, right, from copyright damages. So what they could obtain, in that instance, is an injunction, telling folks to stop doing whatever they’re doing that is potentially violating the law. And that’s what the plaintiffs, Oxford University Press was one of them in that case, sought. The word of caution about that case is, it lasted a really long time. So even though in the end there were no damages at stake, the case kind of went on and on, and of course, during that time, you incur attorney’s fees and other things. So, and I would add as an aside, and someone posted in the chat also, under the CASE Act, state and federal governments are also immune from liability under the CASE Act, presumably following sovereign immunity. However, and one of the things that is a little unclear is, does that extend to employees? And it really should. But if you read the last US Copyright Office proposed rule, they made some really weird claims about agency law, which seemed to make a distinction and say, well, they didn’t say employees when they talked about opting out, so maybe they aren’t talking about employees when they’re talking about state and federal governments? I don’t know. I personally think that probably employees shouldn’t be held liable under CASE Act either under principles of sovereign immunity, but as we all know, it doesn’t prevent you, even in federal court from being sued. It prevents you from incurring damages. It would then say, okay, well, they have less incentive to sue you because they’re not going to get those big statutory damages, but they could still sue you and go for an injunction. Will, that was a long answer. I’m going to let you clarify or add your two cents or correct me if I said anything wrong, cause Lord knows I do sometimes.


Will: Well, there’s two of us, so hopefully between the two of us we’ll be okay. No, I think you said it really well. It’s important at the outset to say that these are two, sort of parallel aspects of the law, that sovereign immunity specifically says if you are a public institution, a state institution, those damages are not available. But exactly as you say in Georgia State, the, the plaintiffs were not really interested in damages. They were interested in coercing people into accepting a blanket license, right? That was the endgame for them. So that’s the first piece. The CASE Act is specifically the Small Claims Tribunal that you described, that is there, in theory because copyright lawsuits are so expensive and complicated, right? The number that’s being thrown around a lot, is what, $276,000 or so, is what it costs to, just to basically begin a suit in federal court. So, so, that speaks to the, both the cost of suing somebody and potentially the cost of being sued, even if there are no damages, as those attorney’s fees can certainly add up from there. The question then about whether individuals can either opt out or just say, “I’m an employee acting within the scope of my duty, I shouldn’t even need to opt out. I’m, I am covered in this case under basic, sort of fundamental principles of agency law.” That, I think, is the heart of this, this comment that’s coming up due October 4th, is how we think about library employees in that space. And I, and I think several people have said this and it’s absolutely right. Libraries can’t do anything without librarians, right? The, the building doesn’t get up and walk around and scan books or whatever, right? It’s the people doing the work. So, any sort of opt out or exception that said, “The library is immune from suit, but all the individual people can be sued.” is sort of illusory. It doesn’t do anything useful, right? So, from my perspective, it’s hard to make a good faith argument that librarians shouldn’t be considered, sort of, protected by both sovereign immunity and the broad sort of limitations that the CASE Act provides as well, when they’re acting within the scope of their employment. And we can have conversations about scope, scope of employment, and that sort of thing as well. But, but to me, that’s the, that’s the baseline piece of it. The other thing I wanted to say at this stage is it’s important, I think, to articulate the sort of privileged nature of libraries and librarianship generally, that this is a core principle in copyright law, that what libraries do is society serving. It meets the mission of the progress clause. So, libraries have this whole, you know, set of copyright exceptions in Section 108. If you’ve ever put that weird notice on your photocopiers or scanners, that’s what you were doing in that context. So, so not only is it a weird reading of agency law to say, “We want to protect the institution, but not any of the people doing the institution’s work.” It also sort of flies in the face of the core policy judgment that Congress and the courts have made in terms of saying, “Libraries are really important. The work they do promotes the progress of science and the useful arts. We need to make sure they have the space to do that good work.” So that’s, that’s my soapbox that I was on for a long time.


Sara: I get that. I think, whenever you engage in advocacy with a public body, right, you’re not usually, your name is attached to it. And if you’re stating what you do for a living and you know, you’re, you’re potentially letting them know what you do and why you do it. At my library, and this may not be true of others, my name is already out there and what I do is already out there, right? I’m listed very publicly. My resources, my library guides have my name on them, right? So, to me, it didn’t raise any specter of liability that I wasn’t already kind of dealing with. I think the title copyright librarian kind of indicates, oh yeah, I do have to make fair use assessments and people do come to me and ask questions about copyright information. Of course, I don’t make other people’s fair use assessments, but I guide them and empower them into making their own. I would say the person who posted here said that they are engaged in interlibrary loan. Again, I, I know what interlibrary loan is, right? That means that you are scanning copyright protected works. That’s the nature of the job. And I think most people know that as well. And so to me, hopefully that doesn’t really raise any additional liability on your part when you submit something. But of course, I can’t promise that there aren’t copyright trolls out there, right? Unfortunately, they already exist. I think the benefit in us submitting these comments is that we’re trying to let the Copyright Office know that this will impact our daily work. And the goal here, at least for me, in calling for large collective action, is that I want the Copyright Office to understand the impact, that this proposed ruling would have, right? The proposed rule that they put forth about the opt-out provisions said, you know, yes, a library or an archive can opt out, one time, of the CASE Act or Small Claims Act proceedings, and then they never have to worry about it again, right? If someone tries to sue them, they, they opt out automatically. And the benefit of that is that if you forget to opt out, you can get a default judgment against you, right? And then all of a sudden you have damages. And so that’s why that was, as Will said, libraries are protected and archives are protected if they do this one time, right? Because our society and our Congress understands that what we do is important. That what we do shouldn’t be interrupted constantly by little lawsuits, right? That the library can’t function in that way. But what they don’t understand, what the Copyright Office doesn’t understand, I think, and what Will said quite brilliantly, right, was the library isn’t making the scanning. The library, you know, the library is just a building. It doesn’t do anything. The library only does things through its employees, and if the employees are constantly being sued, guess what, the library might as well shut down. And so, if Congress really wants to protect libraries from being sued constantly and having to remember to opt out constantly, they should also protect employees from the same. And so, this is what, um, this is why I encourage advocacy. And my real sincere hope is that we will move the needle on this. This was a proposed rule by the Copyright Office. It’s not final. And I’m really hopeful that through collective action we’re able to convince the Copyright Office that they got it wrong. And if we do that, then our goal has been met, right? Having your name on that document is not going to subject you to any potential liability because you, when your library opts out, it will also cover you. And that’s the goal. Can I promised that goal will be met? No. Unfortunately, advocacy is always like that, right? You, you do your best and you hope that it makes that impact. But I do think it’s worth doing. I think advocacy is worth doing, even if it does mean that we have to put our name on a public document.


Will: Totally agree. And I see we’ve got an anonymous question I want to address in just a second, but before that, I just want to jump on what you’re saying and plus one it as well. There are a surprising number of cases where some larger sort of legal policy fight is happening and librarians can sort of get swept up in it in different ways. I think about the Kirtsaeng case a few years back, where there was this large and sort of technical conversation, about, you know, whether works were lawfully made under this title and what that meant geographically. I don’t think most people were thinking about libraries when that litigation was happening. But several library organizations wrote amicus briefs to the Supreme Court and said, “Don’t forget about us while you’re weighing all these other policy questions, please don’t let us get sort of squished underfoot for these big other conversations.” And not only did we get the outcome we wanted, we got some language in the opinion that basically said that “The work of libraries is important, a different ruling in this case would have an adverse effect on libraries and librarianship.” So that was part of our calculus. I think we have some nice case studies where we said, properly, “You might not be thinking about us, but please do in this moment to make a decision that recognizes that.”


Sara: Great, I do see that question about whether you can make an anonymous comment. Do we know the answer to that, Will?


Will: I think it was answered in the chat, which is that you can, but it’s still recorded in certain ways. There was also a person wrote in and asked to, to ask a question here anonymously. So if it’s okay, I’ll read that one out. And then I see Jonah has his hand up as well. So the question is sort of a strategic one and it asks, is there a risk in, risk involved in stressing how much effect this might have on our daily operations, when we know that some folks in the Copyright Office seem to already think libraries are sketchy, and library users especially, are sort of sketchy edge users, like it does in a sense that confirm the, I think, wildly inaccurate, but existing bias, that like where “We were already sort of looking at you with side-eye and now you’re coming back and asking for more protection. What’s up with that?” And I think there’s something to say around sovereign immunity with that. But Sara, I’m interested how you would respond to that question.


Sara: So I think what you’re saying is when you write this letter saying how it might impact your daily work, are you going to get kind of a, more scrutiny, I guess, into what you’re doing. My answer would be no, but I also didn’t, when I wrote in, I didn’t write every single thing that I do on a daily basis, in very great detail, right? Because I first of all, like I just, I need to protect patron privacy. So like, that is foremost right? In everything we do, we all know this, right? So I would never say I scanned this thing for this patron or you know, a specific thing. But what I did say is that I routinely make fair use determinations for my own teaching and for my own library guides and my own educational outreach that I do on campus. And it would be hindered if I would have to respond to these lawsuits for everything that I did, right? It would just it, and it might also put me in a position where the risk gets higher and higher, right? I mean, fair use is a risk assessment every time. And so I don’t think anyone would look askew at that, only because what I say that I’m doing is really typical. I mean, I’m not I’m not doing anything atypical. And I don’t know what you could say that they would feel like is pushing it too far. I mean, I see, I see your point. Maybe if you get into, we’re doing controlled digital lending and here’s how many books we’re scanning and all this, right? Maybe they would think that was pushing it far, but I even think there, many libraries are publicly stating that they’re doing controlled digital lending. So that’s not even anything super controversial. So I guess, I, I don’t think so, but I wonder what you think, Will.


Will: Yes, I mean, I think that’s right, and along with what you said about fair use being a risk assessment, fair use is a muscle as well, right? And so I think, I personally think there’s real value in getting on the record some of these concerns even if we don’t win the day. So that as the conversations about the constitutionality of this stuff and other things are there, that that’s out there. The piece that I do understand is that they’re historically, the Copyright Office has not always been a library-first policy body, right, for better or for worse. So I, I, I could imagine somebody saying if I was talking to a judge or a legislature, they often love libraries, but this particular context feels different. The other piece I wanted to bring in is, we included sovereign immunity in this conversation because that’s been kind of a third rail in this space and it’s not the same thing, but I think in terms of the way policy folks are thinking about it, it overlaps. So just to quickly share that context, my state, North Carolina, relied on sovereign immunity for some pretty aggressive use of photographs of Blackbeard’s ship, without, sort of going through the steps that they maybe should have done. That’s for a court, and not for me, to decide. And last term, the Supreme Court upheld sovereign immunity. They said that sovereign immunity should exist. Even in this context where this doesn’t seem like the best case study. Like, if I wanted to defend sovereign immunity, those set of behaviors or not, the model set of behaviors I would have brought forward.


Sara: And just sovereign immunity means that a state or federal government cannot be sued in copyright for damages, for money. Not that they can’t be sued, right? Because we all know that they could for Georgia State purposes, right, for maybe an injunction or, injunction means stop doing that, right? Whatever you’re doing, stop it. But that they can’t get those statutory damages. Sorry. I’m just interrupting you, go on.


Will: No. Thank you.


Sara: I like and I also love the fact that it was a pirate case.

Will: Yes.


Sara: Yeah, there’s nothing better than a case about copyright that involves a pirate, just saying.

Will: At last we find when piracy is the right statement, finally, when using the term so much. Anyway, one of the results of that is the court’s opinion basically said, “Under current law, sovereign immunity stands. But if you have concerns, the legislature can do something about it.” So this large study was launched to try and determine whether or not we should revisit sovereign immunity. It, we could spend some time talking about that report. I think it, it, the people watching it came in with a set of expectations that weren’t necessarily met by the data they found on the ground. But, at least to me, that creates a sense that people are sniffing around the broader concept of sovereign immunity and saying, “This, this blanket shield from liability makes me suspicious and skeptical.” And these larger questions about the policy values of that liability are being asked. I think there’s a really overwhelmingly strong way to articulate why it’s important to have that immunization and that protection both for sort of nerdy, you know, principles of federalism reasons, but also for actual on the ground work. But if there’s already an environment where people are launching studies trying to undo or remove sovereign immunity, having the conversation about how librarians are treated under the CASE Act may touch that third rail in some places. So I, the thing that really resonated to me in that question was that, that sense of like, “These are stormy times, I’m going to be careful where I stick my umbrella.” Or something.


Sara: Well definitely, and folks have been, folks being legislators, had been kind of attacking sovereign immunity. And the Copyright Office has done their own inquiry into it. And for now, at least, according to the Supreme Court and the Copyright Office, there is no viable evidence of you know, enough harm to individuals through sovereign immunity that we should breach sovereign immunity or get rid of it. However, yes, that’s an ongoing thing and it kind of continues to poke, rear its head, right, because the Copyright Office will tell them, “Well, we don’t have enough evidence right now, but come back to us in five years with another report,” right? I mean, that’s kind of what happens. It’s like “Gather some more evidence.” And they had a horror story, a parade of horribles of, you know, that poor individuals, and some of them I really did feel for, I have to tell you, I was there during the hearings and they were saying like, “The university stole this and made all this money. And then they told me to go away because the sovereign immunity,” and that does happen. I’m not going to lie it does, but I mean, that’s not what, that’s not typical. I mean, at my university, my general counsel joined me for the sovereign immunity hearings, and, you know, we consider ourselves good faith actors. Like, if we find out that a faculty member has done something illegal or copied something, put on their website, we immediately go take it down. We say, “Okay, we need to do something about this right away.” We don’t just say “Too bad, we’re not going to pay any damages,” right? So it’s, it’s just, it does happen. It’s unfortunate. But I think that it’s pretty rare. And I think that was what the Copyright Office concluded, that the evidence really just didn’t show that it’s widespread enough to create that kind of irreparable harm that we would need to pierce sovereign immunity. I see Jonah’s had his hand up for a while, so Jonah –


Jonah: So I’ve seen several commentators and Will just mentioned a moment ago that there was some question about the constitutionality of the CASE Act. I was wondering if both of you could expand a little bit about why people feel that the CASE Act might be unconstitutional. And also, I assume that unconstitutionality applies to the entire framework of the CASE Act and not just vis-à-vis, like library employees.


Sara: That’s right. And great question, and I’m not the most familiar with these arguments, so I’ll let Will jump in, but my understanding is that it has to do with the tribunal, and that it’s not an official court. And I think that’s the concern, that you’ve got, not, not a real, it’s not a real court, right? It’s, it’s appointed by, these are judges appointed by the Copyright Office to handle these claims. Over to Will.


Will: That’s exactly right. The Seventh Amendment talks about the right to trial by jury. And obviously you can opt out of your trial by jury in some cases. But the CASE Act, by creating this weird tribunal, that’s not necessarily even in the article 3 constitutional space, that’s where judges tend to live, generally, there’s this question about whether people’s rights are being impacted in some way. Because it’s this sort of weird, made-up, quasi court where you don’t have all of your rights and protections, but it does still seem to be bind right? You can’t lose under a case tribunal and then just kick back to the federal court if you don’t like the results. So are we locking people and especially through this, right, the, the, if you get an email or if you don’t get an email because it went to your spam, telling you that you have been accused and you don’t respond, you’re stuck with whatever judgment they have. So if, you can, without getting any opportunity to trial by jury, or even in some cases, any opportunity to meaningfully understand that anything has been raised, and you’re bound by that, there are, I think, serious constitutional problems there as well. People have also, I think, rightly asked some questions about whether this is described as a small claims process. Well, where I sit, $30,000 is not small claims, right? That’s, that would be a real life-changer for me in some ways. So, from the perspective of a large international rights holder, $30,000 might be the thing you find in your couch cushion or whatever. But I think that the claim that “This is just for the little stuff, you know, up to $30,000,” feels a little maybe disingenuous or just out of tune with the way most people’s lives and finances work.


Sara: Right. And one thing that I struggle with is how this court would be compared with administrative judges, for instance. Because I think their argument on the other side would be like “This is just like an administrative court where we don’t have all the same rules as, you know, regular court and you don’t necessarily have a trial by jury, but we have delegated our rights to this administrative court judge.” You think that’s going to fly here, Will?


Will: I have stopped trying to predict the Supreme Court over the past year or two as it has continued to surprise me. If we could go this podcast without using the word Chevron at any point, that would make me super happy. I do not know, To me both the equities in the constitutional arguments seem pretty compelling in terms of questioning it, but it would, because that’s where I sit and that’s the world I live in and those are the issues I think about. So I, I would like to imagine that the Supreme Court would take a close look at this, but I would like to imagine a lot of things.


Sara: Yeah. No, and I do think, that that’s, I think that’s going to be their response. And again, I don’t, also don’t know how that would turn out. I do also know, I think the Electronic Frontier Foundation is looking into this and very serious about suing, but they have to wait till they have a real case. So I think they have to wait until someone gets sued, and then they’ll have standing to bring a lawsuit. Until then you don’t have, so standing is, is one of the requirements we have to file a lawsuit. You can’t say well, “Prospectively, I’m just mad about this.” You have to have some real damages happening to a real person, a real plaintiff. So I think that they’re gathering up what they can in the meantime and all their arguments, and they’re kind of waiting for the first plaintiff to come along who says, “Yeah, take my case and let’s fight it constitutionally.” That’s my understanding, and I’m, I’ll definitely be on the sidelines cheering them on, or happy to help them if I can in any way.


Will: Yeah, I feel the same way and I imagine there will be a certain amount of plaintiff shopping. Who is the most, you know, who, who is the best example of why this is problematic set of practices.


Sara: Great point.


Will: Something to watch.


Sara: We have a question in the chat that other people are, are kind of saying “Me too!” So I’m going to read it out loud here. It says “I’m organizing an email to our library staff to alert them about the CASE Act so they can submit their own statements, and I’m pushing for an institutional statement. I’m wondering if I should reach out to faculty at my institution. Would this potentially affect faculty as well. Those working on OERs are using course reserves, for example. Or is this more librarian oriented?” So the opt out provision is for libraries and archives specifically. And so, generally, I would say, “Will the CASE Act impact faculty?” Probably so, right, and that also depends on whether you’re a public institution or private institution because we again, don’t know how the courts are going to look at sovereign immunity. And they’ve, they’ve allowed and said, state and federal governments can’t be sued under the CASE Act, but we don’t really know how that’s going to play out in terms of individual employees. So there’s that. But in terms of this opt out, if you’re trying to have people respond about the opt out specifically, that is about library employees and archival employees.


Will: Well said, I’ll ask the follow-up question to you and if other folks want to jump in as well, what, if anything, are you going to do to prepare your non-library employees there? Are there a series of workshops coming out to say, “This is a wacky thing. It might never affect you, but if you’re interested, here it comes.” Or how are we as a community thinking about educating beyond the libraries in this matter?


Sara: That’s a really good question. And, and for me, I feel like it’s a little early, only because these proposed rules are still coming out. Like there’s another proposed rule that came out just today. And I got it in my e-mail and said, “Okay, too long, didn’t read yet, but will, right?” So I think it’s such a moving target that I’m not prepared yet to reach out to faculty generally, but I do think it will be important once we kind of know where the playing field is and what’s going on to have some, some strategic conversations. Like first, I’m going to have strategic conversations with library administration. Like, even if we are state and federal, a state or federal library, which we are at University of Illinois, if the opt-out provisions are extended to employees, I’m, I’m going to push that we just file the opt-out regardless, because it would cover our employees. That would be my ask to my administration, if we get what we’re asking for in this push right now. Secondly, I would have to say, yeah, to faculty and say, “Let’s have this conversation. What is this thing? What is this small claims court? What are the potential outcomes and how does this impact you?” And then again, big question mark, “We are at a state government institution, how does that impact employees?” And I would also really encourage them to understand that they can always opt out no matter what. So even if you can’t opt out preemptively and do it once and it’s going to apply to everything, which is, of course a good scenario, you can opt out for every single suit. And then that would say to the person, “Hey, sue me in federal court.” Now, we know how sovereign immunity works in federal court, right, at least currently. And so that would give us some measure of protection there if we’re not sure about the CASE Act outcome. And so, you know, without giving legal advice, which I’m not allowed to do in my role as copyright librarian, I would try to let them know, like here are the options, right? The option is you go to this court and try to argue that because you’re a state or federal employee, you know, they can’t sue you, but, you know, I don’t know how that’s going to turn out. Or you can opt out and say, “Hey, you would have to come and sue me in federal court.” And we know that’s pretty cost-prohibitive for them. And we also know that they can’t get damages against you there. So I would let them know these are their options and of course, everyone has to make their own decision because I might have a faculty member who knows a lot about this and is like, “I’m really angry, really angry that they’re suing me, they shouldn’t be. So I’m going to fight this.” I mean, hey, more power to them, but like, I’m not going to tell them to do that necessarily. I’m going to give them options.


Will: Thank you. Yeah, a couple of people, Molly Keener, and others have added in chat, and it sounds like they’re doing basically the same thing. “We’re keeping high level administration aware, we’re talking to counsel’s offices. But it’s a little early.” I also wanted to, I think Nancy in the chat mentioned that if you’re especially at a larger institution, the question I get sometimes is like “I work in the library, so I’m going to write on behalf of the library where, I work at NC State, so I’m going to write.” And at most institutions, especially as Nancy says, large institutions, there are pretty clear rules around who can and cannot speak and write on behalf of the institution. So if I submitted comments on behalf of NC State, our legislative advocacy people would murder me and you would never find my body, right? So, so be aware that there are a small set of people who can speak on behalf of the institution, and that there are probably people on your campus who have big feelings about who is doing that work.


Sara: That’s a really good point. And on the flip side of that, I’ve been really fortunate to work with those government outreach folks at Illinois to get their kind of permission, if you will, to speak on behalf of the library and the sovereign immunity instance, for instance. I’m, I coauthored a letter on behalf of our institution with our counsel’s office. So if you go through the right channels, you can get those permissions, but you have to be aware that you need that. You can’t just go ahead and do it. And also usually you need the Dean of the library to say it’s okay, the counsel’s office to say it’s okay, the government relations folks to say it’s okay, and just to go through a variety of, of processes. When things come up really quickly like this, this current call for responses, I just signed it on behalf of myself individually because I sometimes I don’t have time to run through the chain of command, right? Like to know like, okay, I need to go to this person and this person then this. Like, just because you have permission to do it once doesn’t mean it’s kosher to do it again and again and again. So I had permission, like I said, on sovereign immunity to really speak up on behalf of the university. But I don’t have that permission like as a blanket statement. It’s a really good point. Any other questions? Take it away.


Will: So Susan Kendall asks whether we can share some communication that you would have the library administration, that those of us who are not lawyers, can use with your administration. I don’t have anything in my back pocket, but it seems like a great service. Some group, whether it’s EUIPO or ALA, or whomever, could do is to say, “Here’s some model language to let people know what’s happening with CASE, here’s some model language that’s targeted towards faculty” and you know that there is a broad need for that. So that might be something that maybe somebody has already done. I’d love to learn about it. And if not, it would be great if somebody could do it.


Sara: Will, I love that idea. And I think in terms of when we move forward, I think that we are, that would be a great service, right? To have some standard like “Here’s language to communicate about CASE with your employees. Here’s some if you’re a public employee. Here’s some if you’re a private employee, here’s some for libraries, here’s…” something like that would be such a great thing. And I am a member of the ALA Policy Corps group and I think that would be an awesome project for us. And again, I would say it’s a little early for that in terms of how we can, we can’t predict the future about CASE. So we gotta wait a little bit and then I’m really, fingers crossed, that the lawsuit about constitutionality actually goes forward and we can get rid of all of these concerns, but it’s just a moving target. And unfortunately, that’s, that happens a lot with copyright, right? It’s, it’s, it’s a moving target a lot of the time. So I do, I think we should have some sort of repository for that kind of information. And I, I, I think it’s a great idea. There’s a question, did the Library Copyright Institute create a sample of language that could be used? I don’t think so, but I do know, you know, if you look at the comments that have been posted about the CASE Act, there’s a lot of good information you can gather. It’s all public. Will, do you know of anything that they created the Library Copyright Institute?


Will: We did a webinar on this last week and we borrowed your language. We said “This is what ALA has provided. This is a nice way to, here’s some specific verbiage you can borrow, but also here’s a nice way to frame, sort of introduce the idea, provide your context, give specific examples.” So that’s the thing that was circulating in those slides that should be available, the recording should be available at this point, but that’s not LCI’s credit, that’s ALA’s credit. We were just sharing their good work.


Sara: You know, everyone has their own unique perspective and we all have different ways of looking at things, right? And so it’s really good to get, just a variety of perspectives, about all the things that are happening in copyright world. Kenny is obviously a wonderful person to talk to always because he’s just a really nice person. And I have a Copyright Chat episode talking with Kenny. So I recommend you listen to it if you’re interested. He of course authored the famous Copyright Checklist, that most people use for fair use. I recommend it to folks all the time. And in our, in that particular episode, we were talking about the copyright guidelines in Circular 21 and how they’re really outdated. Other questions?


Audience Member: I do. So what is next? How should we proceed in the coming months, while we kind of wait to see what comes down? And once those things come down, the final rulemaking, what the court looks like, what are ways we can work together to move forward?


Sara: That’s a great question. I mean, I think one thing that I would recommend to everyone here, is to sign up for the US Copyright Office Notices. This is how I learn about what’s going on with the CASE Act and the new rulings and things, right? Instead of hearing it from someone else, you can hear it directly from the Copyright Office. So I highly recommend that, and read, read the proposed rulings as they come out. And if you feel that there’s something that you or your library could respond to, pass it up to your dean, pass it up to general counsel and keep them apprised of what’s going on because things are definitely still moving along and not solidified yet. So keep on being engaged in that process because I think it’s really important that we are aware of how it’s, how it’s moving. And then once, once we have some final idea of what’s going on, hopefully the ALA Policy Corps or someone else can put out some really helpful, useful information. I’m thinking like the SPARC information that they have about the state by state laws on OER, right? They’re just so good. I love their website and their tools. If we can come up with something like that, that’s just really short, but really comprehensive, I think that we could be doing a really great service. So maybe come up with your own stuff and we can kind of put our heads together and come up with that documentation because I think we’re going to need a lot of outreach to our faculty and to fellow librarians about how this might impact our work.


Will: Yeah, that’s, that’s a great point. And the question that you mentioned a moment ago is, is if this constitutionally goes away next term, have we spent all this time getting people invested and raised all this awareness, and then suddenly it’s like “What happened to that CASE thing you said was going to ruin the world?” “Well, it just went away.” So as, as we were talking about engagement with faculty, that’s one of the issues that I’m really thinking about is, one, getting faculty to show up for a website on copyright Small Claims Tribunal can be challenging. So I’m, I’m wondering if other people are having that, like, is this something faculty and others aren’t going to care about until they’re being sued and it’s too late. Like, is there a way to say “This might be nothing. It might be really important, but you need to know about it now. Because once you get a notification, it’s probably too late for us to do anything about it.”


Sara: Yeah, I mean, I don’t think it’s too late for us to do anything once they get a notification as long as they didn’t sit on it. Because I, I just read, the one thing that I did read is that you have 60 days to respond to the notice under the proposed rules. Again, nothing final, which is quite a long time, if it got to the right place. Like Will was saying, if it got in your junk email or went to the wrong location, like that’s just a problem. But if, if a faculty member does come to me and they have the notice in hand, I think that’s a really good time to have that kind of “Here are your options” conversation, right? I mean, you could do nothing and then you could get a default judgement. That’s not a good idea, right? Default judgment means “You didn’t even bother to show up, pay these damages, because this is what we’ve decided.” So that’s bad, and right, your options are, you know, opt out and decide to say, “Hey, you know, I’m not, I’m not engaging in this process. If you want to sue me, take me to federal court” or respond, right? And then you can respond with, “Hey, this was a fair use,” or “Hey, this is, I’m a government employee” or whatever your defense is, but of course you don’t have any guarantees that how that’s going to turn out because these are the judges, judges are not real, they’re not federal judges, they’re not necessarily trained. And even federal judges on copyright sometimes get pretty confused. They get a little turned around. So I’ve had experiences as a practicing lawyer that you wouldn’t believe or I have a motion that I think is a slam dunk and I get denied. And then I have another motion that I think there’s no way in heck, this is going to go through and the judge lets it through. So judges sometimes do wonky things. So it’s important for people to know that too. Even if they’re like, “I know I have a fair use. I know that this is permissible, that’s so obvious.” That’s why, yeah, judges sometimes make mistakes and I think these judges could too, right?


Will: You would hope. And I’m sure the argument is, these judges are going to have that specialist training, so they’ll be especially well-prepared. So then the question is, who’s going to give them that training? Is CCC’s version of a copyright webinar, is it ALA’s, et cetera. So that specialization you’re right, is a problem too. Sometimes comedic levels, at the federal level, whether the specialization that these judges have means they are more sophisticated or just more invested in one view of the doctrine is a different thing. Carla, please go ahead. I’m sorry.


Carla: No, this conversation brings something to mind for me in that happened back when I was in college, which was during the time of Napster in the late 1990s. And I met one of my friends for lunch and he was looking very depressed. He had gotten notice from a music company and they said “We saw you’ve been sharing our music illegally online, that you can either pay $3,000” in the late 1990s to a college student, which was terrifying, “Or we will sue you.” And you know, something I was just thinking is, could we see with the CASE Act, copyright trolls saying, “Hey, we’re going to see you in small claims court. But if you don’t opt to do that, we’re going to take you to federal court, or you can just make this all go away by paying us X amount of dollars and we’ll leave you alone.” And the chilling effect that might have, do you think that’s a possibility?

Sara: I definitely think that’s a possibility and I think that, that’s part of the art, the goal of outreach, right? Is to educate people that they can opt out and that they don’t have to pay that money, right? So yeah, it’s, it’s, it’s definitely a possibility and, and if folks are just unaware of what this is, right, they think, “Oh, I’m going to go to court, I better pay this” and they don’t even know. I know that the notice is supposed to tell you about the opt-out provision and all of those things. But, you know, some people just get really scared. You get a letter in the mail saying you have to pay this money. And you think, “Oh no, I have to do this,” right? You just want it to go away. And so I think that is a real possibility.


Will: Yeah, I’ve, I’ve dropped the phrase, but somebody basically described the CASE act as a copyright troll factory. I think there’s, there’s something to that. Nancy, I saw your hand raised. If you’d like to ask a question or jump in, please do.


Nancy: Yeah, I, I realized that what I was thinking about is, is rather tangential. But with respect to trolling, those of you who work in academic libraries may have seen some of this lately. I’ve seen an increase in people who put some kind of vaguely copyrightable measurement tool online. And then other people use it without permission, which is only questionably a copyright violation anyway, forms are not usually very copyrightable. But the people who made the form, some people really seem to have gone full trolling model on this. Their form is out there primarily to get people to use it. And then once people have used it, if they publish on the research they did with the tool, they are now threatening the authors with lawsuits. I don’t know if they’re getting payments, but they are getting retractions. Which is, I’m concerned about, just because that’s not a correct legal response to this kind of, if it is a copyright violation, retractions are not the right answer. But, but I think that the over, as I said, this is tangential, that’s why I put my hand down. But it is an illustration that the trolling model already exists, and has both some monetary drivers and some other weird drivers that I don’t understand.


Sara: Yes, it definitely does exist. And as Jonah was pointing out, there is someone who is licensing under Creative Commons and then using that to sue people, which is even worse in my opinion, it’s like you’re using Creative Commons to trap people into violating the whatever you put on there and then you’re suing them. It’s just mind-blowing. But yes, I think, I think unfortunately, some people are trying to trap people into using their thing and then suing them. But I would agree that a retraction is maybe not the way to go. And also someone, I wish someone, would just fight that, right? And get a court to say, “Hey, by the way, this isn’t even copyrightable.” But the problem is, and we all know this, going to court is not free, right? You can’t go, most people can’t just go to court and say, “Okay, I’m going to be pro se.” You have the court filing fees, you have to show up and you have all these deadlines. It’s a very complicated process, so it’s not as easy as all that, although I wish someone would fund it, maybe EFF, and like, find out if there is someone they could defend and really push the issue. Because if this is happening again and again and again, it needs to be dealt with, in my opinion.


Will: And good discussion in the chat on the, sort of the rise of copyleft trolls. There’s an article in there documenting the practice, and then Creative Commons has been working recently on updating their license enforcement language to say, “It’s your right, but what we hope the community will do is follow this set of practices.”


Sara: Yeah, Nancy, Nancy is like “Exactly what academic author is going to say, “I’m going to defend this and see you in court, sue me” and then like get their own lawyer.” I mean, it’s just so expensive, so we really would need an organization to take that on. Agreed. But it would be great. Other questions. This has been such a fun conversation. I just have to say this was a really fun thing to do. And I’m so happy that you all were so engaged. I just, the time has been flying by and I’ve been really enjoying it and it was fun for me to be on the other side, right? Not to be the one asking all the questions, but to get to answer some of them. So I really enjoyed engaging with you all. I hope this will inspire some of you to listen to other episodes of Copyright Chat and to give me your feedback about those and to get engaged with them. And maybe use the Scholarly Communication Network output that I come up with about teaching with Copyright Chat, or come up with your own ways to teach with Copyright Chat. I’ve actually used, that, that method with Gordon Spiegel before. And I did it live in a class. I played the episode and then I would stop it. And as I asked him a question, I would say to the class like, “What’s your answer?” right? And have them kind of figure out if they knew the answer to a common copyright myth. And it was a really fun way of holding a live class. So you can even use the, the podcast live during class. There are just so many different ways to use it for teaching. So I really hope that some of you are inspired to do that.


Will: Yeah, thank you for saying that. That brings us back to the sort of the SCN conversation at the top that this can be a “Your final assignment is create a podcast.” instead of writing a research paper that gets thrown away, it’s there, or, “Take two podcasts and remix them in different ways.” All the pedagogical opportunities here, I think are really, really exciting and important.


Sara: Or come up with a new module, right? “Find one of Sara’s Copyright Chat podcasts that she didn’t turn into a teaching module and come up with your own teaching module” and then add it in to the OER right there. Just so many, possibilities are endless, but I do love the idea of creating your own copyright podcast, which is kind of fun. Because I just think I’ve had assignments like that where I’ve gotten to create something myself and I always find them really, really engaging. And active learning is just, for me, a lot more rewarding. Any, any other final comments from the crowd or things you would love to hear a Copyright Chat podcast about? Because I’m always looking for ideas. If you have other topics that you just think, “Hey, you really should do a topic about this.” Oh, a music one, ooh, that’s a really good idea. I should definitely do a music one. “Do you use videos from Copy Talk as part of educational material?” So I don’t have videos on the Copyright Chat because it’s a podcast, but I do have sometimes links to readings and sometimes links to other videos and things so, that I’ll put with, so I always have a transcription of the podcast because obviously some folks can not engage with it, if they’re hard, they have hearing struggles, so I always have a transcript available. And with the transcript is where I put additional materials.


Will: I was just going to say, one of the things I really appreciated about this session is the way you’ve demystified the technical aspects. I think if you said to somebody out of the blue “Do you want to make a podcast?”, they’d go, “That sounds really complicated and difficult.” And I think this has been a nice demonstration that it’s actually not as challenging and not as big of an ask as it could be. And obviously the opportunity to have some intro music from ccMixter, or right, you can sort of walk that copyright walk in terms of the way you build resources and, or rely on fair use to play a short clip from something. You could ask students to demonstrate their understanding of those concepts in the way they build the podcast.


Carla: So, as we’re nearing the end of the podcast, I just want to express my deepest thanks, first off to Will and Sara, for this wonderful and very informative discussion on the CASE Act. I know this has been in so many folks’ minds and I am welcoming every learning opportunity I can get on this. And I think this has been an exceptional one. My deepest thanks also to our participants. It has really warmed my heart over the last few days to see how much you all are engaging with these presentations, the conversations going on in the chat. I just think this is so fantastic and the chat will be preserved. I know there’s some questions about that, so you can download that, and I’m happy to pull links out of the chat, to put in a document that we can ask later. Before we close out, any final thoughts to share, Will and Sara?


Sara: I would just say, I’m so happy to see so many people engaging with copyright here in this room today. And just keep on, keep on doing that, right? I mean, I’m always learning something new about copyright every day. And copyright is one of those fun things that changes a lot. Right, as someone was pointing out, “You should talk about music, cause there are a lot of new cases and it’s changing a lot”, right? It is. And then the Music Modernization Act changed it even more, right? That’s what makes it fun is that it’s, it’s a moving target, something that you can always learn something new about. I never claim to know everything about copyright because… Kenny Crews might know everything about copyright, but not me. But I always, I just have a passion for it. And I think that’s what you need to have if you want to be a copyright librarian and if you’re interested at all, reach out to me, we are a really great group of people. We are a really nice group of people and we help each other. It’s been, it’s been a fabulous career choice for me. I’ve really enjoyed working with everyone including Karla and Will, and Nancy on this call, and Emily. And I just really can’t say enough about it as a career choice. So if you’re thinking about it at all, feel free to reach out to me, and I’m happy, I’m always happy to chat with anybody, especially because I love Copyright Chat.


Will: Yeah, I’ll say the same thing, but not as well, as I’ve been doing for most of the session today. I, I, it’s a really fun community to be part of, and I’m really excited about resources like Copyright Chat and the SCN, that sort of capture the community conversation. And it’s not just like “This is the expert and we’re going to shut up and listen to them.” It is, “Let’s talk about this as a group and share different experiences.” I think we’ll get a better and more robust and more invitational, and inclusive as well, understanding of what this body of practice is and can and should be. So I appreciate everybody adding your voice today and I’ll second Sara, what she said, please reach out anytime. Questions like “I’m new to the field, and how do I deal with that?” or “What do you think about this?” We’re all very happy to have those conversations.


Sara: And shout out to Molly and Sandra. I mean, it’s just a really fabulous group of people. I cannot say enough about my copyright colleagues. They are just wonderful people also. If you’re at all intimidated and you say, “Ooh, it’s law, I just don’t want to get engaged,” like, talk to us, because really, really you can do it. And especially if you find it really interesting and fascinating and you know, you just really want to learn more. That to me is a sign that you’re, you’re interested, right? And so, even if you don’t want to become a copyright librarian, if you’re just like, “I’m going to be the go-to copyright person at my library.” Hey, everyone needs that. That’s a certainty. So, and then, don’t feel afraid to ask questions when you have them. Because again, I mean, we, we ask questions all the time, and no question is a bad question, and I’m always happy to engage with people, so please, please reach out, and thanks for joining us today. It was so much fun.

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