Our Take on the Copyright Office Sovereign Immunity Roundtables

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Our Take on the Copyright Office Sovereign Immunity Roundtables
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Douglas Shontz from the Office of General Counsel at the University of Illinois and I participated in the Copyright Office’s State Sovereign Immunity Study Roundtable Discussions.  You can find the materials for the Discussions at the United States Copyright Office. We submitted a comment and a reply comment to the Study.

 

 

 

 

 

Sara Benson: Welcome to another episode of Copyright Chat. Today I’m joined by Douglas Shontz who’s from our University Counsel at the University of Illinois and we are going to talk about our recent experience with the U.S. Copyright Office Sovereign Immunity Roundtables. Welcome to the show, Douglas.

Douglas Shontz: Thanks for having me, Sara, pleasure to be here.

Sara: So, last Friday we participated in hearings with the Copyright Office. It was a very long day. I sat through all of the hearings. They started at 9 a.m. and went until about 5 p.m. and let’s give the listeners a little bit of background about what was going on there. Do you want to give some background Douglas?

Douglas: Sure, happy to. The precipitating event seems to really be the U.S. Supreme Court decision in Allen v. Cooper which was issued in March of this year and that decision found unconstitutional the federal law that had allowed private copyright holders to sue state governments for copyright infringement and it…resulting from that then two U.S. Senators sent a letter to the U.S. Copyright Office basically instructing them to study the extent of copyright infringement activity by state governments in the wake of the Supreme Court’s decision in Allen v. Cooper.

Sara: Right and from what I gathered from the decision the Supreme Court did not rule out the subject of getting rid of sovereign immunity for government actors but for copyright infringement in particular but said that the underlying evidence used to pass the law that was at issue in Allen v. Cooper was not strong enough to support getting rid of sovereign immunity. Is that is that your understanding too?

Douglas: That’s a good characterization. Yeah, the Supreme Court’s decision focused in on a test that was actually developed in another decision after this law was passed in 1990 and that decision refers to congruence and proportionality and what it’s basically saying is that if Congress is going to take the fairly extreme step of abrogating part state sovereign immunity under the 11th Amendment of the Constitution, that they need to justify it in some way. They need that the measures that Congress takes to abrogate the state’s sovereign immunity rights needs to be both congruent to the to the acts that are being performed and that the measures that Congress is taking are proportional to the acts that the state governments are taking that are appear to be wrong, unlawful or or somehow damaging. The interesting thing in this Allen v. Cooper case is they spend a lot of time talking about the proportionality component but didn’t spend a lot of time on the congruence component and it really is a two part test. So, it will be interesting to see as what is likely to be continued efforts in Congress to kind of revive some version of this law to to provide an avenue for private copyright holders to sue states if they remember that there’s two parts to this test. Obviously, the proportionality part is is really the more important one that you know you’re not providing this sweeping access to the courts, to the federal courts for private copyright holders to sue the states and that really seem to be the issue in the Allen v. Cooper case was that it is really open the door wide open for private copyright holders to sue state governments for infringement.

Sara: And I think the other thing that I took away from that line of cases was that in order to abrogate sovereign immunity the acts of infringement, the evidence that you need, I guess, needs to be shown to be intentional or reckless and widespread. So, that is what I was kind of focused on in terms of the evidence that was presented during those hearings and in my mind, I didn’t see that kind of evidence showing even if there was some intentional, let’s say infringement by individual, what we used to call ‘rogue actors’ at universities. It’s not widespread nor is it sanctioned by the university. Do you think that that matters in this case?

Douglas: I do think that matters and I think that was really a core part of the Supreme Court’s finding in the Allen v. Cooper case is that the Congress passed the law allowing private copyright holders to sue states but put nothing into the congressional record in terms of a congressional finding of this kind of widespread, sort of reckless intentional infringement by state governments that would have provided the the necessary justification under this congruence and proportionality test to carve into the 11th Amendment state sovereign immunity rights. And just for my benefit when you’re talking about the hearings are you talking about the roundtable discussion or something different?

Sara: In my mind, I keep calling them hearings and I know it was really a roundtable discussion but it seems to me that the copyright office was really trying to gather up evidence of some sort of infringement by state governments or potential for that that they could use to to demonstrate to Congress that this this is a problem, right? And what I saw is that there were some instances and I certainly felt badly for people, especially Allen from Allen v. Cooper. I think it was Allen, right, who showed up?

Douglas: That’s right, yup.

Sara: And I feel badly for him because, of course, he was mistreated by the government in that case if you read the facts about, you know, him taking a video and photographs, I think it was mostly a video and photographs of Blackbeard’s ship wreck and the state kind of taking that without giving him due credit and payment. I do feel badly but at the same time that is not enough to make… to abrogate sovereign immunity for everyone and I think what I noted the most was how strong the the evidence was on the side of folks from Universities saying, Hey we’re out here educating our users, we have, you know, strong copyright policies, we take matters seriously when people assert infringement and we don’t take this lightly” and so it seemed to me that there were instances, of course, of copyright infringement but they were actually few and far between. Which to me does not meet that proportionality test, right? So, it’ll be interesting to see what the Copyright Office says about the hearings or the discussions, right, because I suspect given what they’ve done in the past that they will find that there is evidence of infringement going on and that use whatever they can dig up, if you will, too kind of justify it and I don’t personally see that it was justified during that day of testimony.

Douglas: Yeah, I think that’s a really really accurate characterization in general. So, in the Allen v. Cooper case you have you know, normally if you’re going to try to press a claim like this all the way up to the Supreme Court you want the most sympathetic case you can have and in this case the North Carolina state government didn’t really didn’t have a particularly sympathetic position that they are in as you said you know, they weren’t sort of incidental or negligent copyright infringer in that case. They really didn’t paint themselves as I say as particularly sympathetic and the court found still in their favor because of the lack of finding by Congress that justified cutting into a constitutional right of the states. And so in the wake of that you have this just letter again from two U.S. Senators to the Copyright Office that kind of kicked off this process that resulted, most recently, in the round tables and that letter states explicitly that they’re looking, they’re asking the Copyright Office…Well, they start by saying that they the Senators quote “have heard from affected copyright owners that in recent years state infringement of copyright have become much more common” and so you can already see that they’re they’re really starting to set the stage for basically that the finding is is already there, right? They’ve already kind of made the case in their mind that this is a problem. A widespread and growing problem of state governments infringing copyright and then the Copyright Office starts the process of a of a study by issuing the series of questions and that’s where you and I first collaborated on behalf of the university to to submit a public comment and you know the nature of the questions don’t really get to accept until later on. The nature of the questions from the Copyright Office that they posted the public are really still more about narrow, specific instances of copyright infringement and not getting at any sort of evidence about widespread infringement so the first question for example from the Copyright Office to the public is “Please provide information regarding specific instances of infringing conduct committed by a state government entity, officer, or employee.” So, that doesn’t really speak to that that’s essentially the Allen v. Cooper case all over again in one specific instance is not enough to show the justifiable widespread conduct that would meet the congruence and proportionality test. So I thought, I thought that part was a little bit interesting about the way they even started this this whole process in the study and now later on in their list of questions they do try to pose a couple of questions that are little more about kind of widespread activity but that’s not really their focus and in what they’ve been doing.

Sara: I think what they’re trying to do albeit I feel that they failed but I think what they’re trying to do is just get this massive rising tide of complainants, right who say this happened to me and my brother and my sister and my best friend right and and that would maybe if you had enough individual instances they would try to throw them all in a pot mix it up and come up with a widespread showing. I think that they failed at that because the copyright alliance also did a study you say they have 1.8 million members and only a hundred and fifteen people said yes to a question about whether a state government or governmental actor had violated their copyright or  infringed on their copyright and even in that instance we don’t know that it was done intentionally and we don’t know that it was even an actual violation, right? We don’t know if there was a valid defense. So, to me, this this was a complete failure, right, at least in terms of trying to do that individualized like rising tide. The other aspect of it, of course, and one that we have been pointing out is that if you could show, you know, copyright policies that are infringing that would show that there’s actually state action, right, that the government is condoning infringement. Of course, there’s no evidence of that either and you know our university has multiple copyright policies, folks you can talk to, educational policies, we have sanctions in our student code all of these things that just show quite the opposite right, that we take copyright very seriously and that we don’t tolerate copyright infringement. So, I just I will find it really fascinating to see what a Copyright Office summarizes from these round tables because to me I don’t see the evidence there.

Douglas: Yeah and I don’t either and I don’t and I didn’t hear any really during the round tables from folks at both on the the state government side and on the private copyright holder. You know the particular instances are still single anecdotes about infringing behavior and really even I didn’t hear anything about anything even close to the Allen v, Cooper type example where it was really just sort of out there with no justification. So for example, here at the University of Illinois the number of allegations of copyright infringement that we field in a year is well…we’re talking single digits at most and that was before the Alan . Cooper decision. So, at that point people had the private copyright holders, people have the right to come and you know, make claims against the university, they can press their claims in court if they wanted to but the reality is that we weren’t even getting that many complaints to start with and so it’s really interesting what..I agree with you I’m very interested to see how folks in the Copyright Office try to continue to to make the case that there is widespread intentional serial infringing activity going on in the state governments. You know, what I didn’t hear a lot from these roundtables was input from other state government agencies sort of what people would think of more of the traditional type state government agency you know, the department of revenue or the department of public health or something like that  the state actors that came to the round table and also put in the public comments during the open comment period that you and I provided comment on. It was really the universities, the public universities and to some extent that makes sense, right, is that you know we, we’re both the most active producers, generators of copyrighted material through our faculty and university activities and also, consumers of copyrighted material for our educational and research purpose. So, it does make sense that we’re kind of the centerpiece of or the center of discussion about state activity related to copyright, in general but yeah I agree with you. I’m a little bit, you know, confused as to what they could sort of hang their hat on at the Copyright Office about any evidence of widespread infringing activity by state government.

Sara: Yeah and I thought I thought it was kind of interesting some of the questions they asked about us trying to have our cake and eat it too, right? So, like one of the questions was “Well, you all say at universities that you’re not infringing, so, why do you need sovereign immunity?” And to me that doesn’t really that that question is a little bit unfair right because first of all, well are you saying that we should be infringing because we have sovereign immunity? I mean, that’s not a good position to take, right?

Douglas: Right.

Sara: And secondly, you know, we need sovereign immunity because it was granted to us by the Constitution and why was it granted by the Constitution because we are guardians of State funds, right, and so therefore you know they don’t…they being you know who framed the Constitution did not want state governments to go broke right because of all of these damaged lawsuits and in copyright in particular the damages get high really fast if you look at if you look at the statutory damage provisions right? So, you know, a single act of copying one thing can be thousands upon thousands of dollars and those are taxpayer funds, right, and so we really do need to guard those funds and it doesn’t mean that we take that to say oh well we’re just going to ignore copyright and I think that point was made numerous times. That we’re not only copyright users, we produce copyright. We have University presses, we have authors, we have students writing things, we have research going on and so, therefore, we want to guard copyright and protect copyright because we benefit from copyright, as well. And so I just…I’ll be interested to see what the report says. I think maybe you’ll have to come in and we’ll have to debrief after the report comes out and kind of just see what we think of it but I thought some of the questions, to be honest with you, from the copyright office seemed a little bit biased if you will like it seemed like they were trying to dig up trouble, right?

Douglas: Sure, sure, sure.

Sara: And I know that was maybe what they felt was their charge, right, because they were specifically asked, Senator Tillis was one of the senators who asked them to to do the study and and maybe they feel an obligation to copyright owners but it seemed like at times they were really trying to make what I would say mountain out of a molehill, right? One of the questions they asked me in particular was, you know what does intentional infringement look like. Well, it’s not hard to define intentional infringement, right? It’s something that you do on purpose and I was saying things like, ”Well, if you remove a copyright notice that seems pretty intentional, right, but on the other hand that’s not all that you need, you know, and when I tried to point out well it can’t just be intentional it has to be widespread, it has to be like an Institutional policy, I got cut off. Sometimes I felt like it was almost like they didn’t want to hear counter-arguments, right, and I don’t know what made me feel a little bit like, wow maybe they’re just trying to prove this case and and no matter what we say they’re going to say that there’s widespread infringement and I really hope that’s not true. I mean I would like to hope that the Copyright Office is being a neutral investigator here because I think that’s their role. And so like I said I’ll be interested to see what the report says because I felt that all of the folks who came to speak on the behalf of universities and on behalf of government actors and state governments, I thought we did a really great job in demonstrating that we respect copyright and we actually do engage with folks when when they come to us as evidence of true infringement. We don’t just turn them away and say, “Oh, we have sovereign immunity,” right, and so yeah, I just didn’t see the evidence that they were looking for. I didn’t see it. Maybe they saw something I didn’t see but I really didn’t see it, so.

Douglas: Yeah, I agree with you. I think the…I came away with a similar impression that the approach that they were taking, the questions they were asking during the roundtable sessions were more along the lines of justify to us why we shouldn’t take away sovereign immunity again, that it was…rather than sort of an objective, neutral and we are examining the state of affairs with respect to state governments and copyright infringement something something along those lines. It was really much more as we’ve talked about here it is much more of their going in position seem to be that they think that there is widespread intentional copyright infringement going on by state governments and they were going to find the evidence to back that up. And what I heard in the in the roundtable sessions really cut against that narrative. That it was…it was really good and I think our University is a pretty good example most sort of well behaving universities and I am not aware of any that are misbehaving in this regard but we have, as you’ve said, we have I mean well in first order we have people like you. We have a dedicated copyright librarian to advise student, faculty, and staff about copyright because we have…we want to show that we are complying with the law and we also have want to be able to protect the copyright, copyrighted materials that we generate here. You know, so we have people who advise on and sort of go out and do outreach and explain about copyright law we have resources on campus. And then on the very few times, again low single-digit, the very few times that we receive allegations of copyright infringement from private copyright holders we look at those very carefully. You know we don’t just we don’t just have a copy paste “This was fair use” I’m talking pre- Allen v. Cooper. You know, we don’t just say, we don’t just have a copy paste “This was fair use go away your allegation is unsubstantiated.” That’s not our approach and in the same way even after Allen v. Cooper, we don’t just have a form response email that says “State sovereign immunity, go away, you can’t sue us,” right? We look at each instance and we consider the facts around them and kind of walk through a full analysis of how did the copyrighted material got placed where first instance, what the justification was behind the use and a lot of times when we’re seeing are incidental uses of photographs, right, because that’s kind of the most obvious think I mean there are people that run web crawlers that look for photographs and either image analysis or metadata buried in the photographs that they’re crawling the web looking for where these photographs have reappeared and then sending, you know spinning up their machinery to start making claims for damages and the like and so when we look at these instances it’s really not a case of intentionally trying to infringe copyright. It’s certainly not a case of trying to profit off and in the main, we can find that the usage falls well into fair use standards for educational institutions and even then on occasion our university has still paid a settlement fee as a result of the use and so but we still have to kind of a lot of time, a lot of effort try to grapple with these allegations and but there’s no indication that it’s widespread and intentional to the level that that really should be a very high bar for abrogating 11th Amendment state sovereign immunity.

Sara: Yeah and I think you raise a point there that makes, that I felt was a little bit strange during the round table discussions which is the burden should really be on those were attempting to abrogate sovereign immunity and it shouldn’t be on those of us who are you know representatives of the state, right?

Douglas: Yeah.

Sara: So, I felt sometimes at the questions were like “Well, why are you doing this, why are you doing that” and the reality is that’s not the burden, right? I don’t have the burden of proof here, right, and so I think that’s part of the reason the Allen v. Cooper case came out the way it did  because if you don’t go out there and get this evidence or if the evidence, in my opinion, I don’t think that evidence exists, right?

Douglas: Yup.

Sara: If the evidence doesn’t exist, you can’t make it up, right, and again if you… if it state actors were behaving so badly that there was a widespread, you know, angry mob then why did large survey instrument only receive 115 angry people, right, out of millions of people itjust to me that’s that doesn’t add up and so that suggests to me that there are a lot of people who are who are contacting you know universities are or state governments and say “Hey you took my stuff” and then and the response is “Oh man, sorry, we’re going to take this down, oops” Not, “Hey we’re we’re mean and we get to do this just because” and again I do know that those things happen, right, Allen v. Cooper is not not a good case example for state government behavior, right, but I also think it’s an extreme example. I don’t think it’s the day-to-day, you know, behavior and and that’s what Congress needs to look at if they’re attempting to to abrogate sovereign immunity. So, it’ll be, this might be a whole other thing, right, where we go through more hearings, we get another law, it sits there for a while, right, and then ends up at the Supreme Court again and it’s is this just a 10-year cycle that were on just repeat what do you think?

Douglas: i think that’s entirely possible and you make a great point about, you know, the Allen v. Cooper case was not not in my mind not a typical example at all and because at least our approach and the approach of my counterparts at other universities is again it we’re notified of an issue, we go look at it and you know our usual first reaction is to give the copyright owner, the person making the allegation of infringement give them the benefit of the doubt and take down the material immediately, right? Say “Okay we’re going to take this down and then we’re going to examine the circumstances around it.” You know, unless it’s a very clear, well-supported fair use instance to start with in which we might say “Okay we’ve already know the way this material was presented someone thought through the fair use analysis upfront. It’s sitting there, we’re going to leave it there and we’re going to explain that back to the person making the allegation” and the other thing you were just saying, which is a good point, the evidence certainly doesn’t exist in any empirical form that I’ve seen and one of the questions that that I fielded on the round table was from the chief counsel of the Copyright Office Ms.Smith was trying to compare public universities to private universities and you know, I said something to the effect about what, good luck even trying to find well formulated, systematic, empirical data about private universities and their quantity of allegations and claims of copyright that they field and deal with but again also what’s the point of that comparison? We are public universities, we are stewards of the public funds, we have an educational mission. I mean the interesting thing is that in some ways, you know, if you look at the mission of public universities and state governments, in general we should really be pushing the boundaries of copyright to say most of what we do is justified by fair use and you have to prove to us that we’ve infringed but we actually don’t take that approach like we’re very cautious and with good reason, again, because we want to be respectful of the creative efforts of other people, photographs music movies et cetera and also we generate a lot of copyrighted materials, as well, so we have we have a strong interest in a well-functioning, you know, copyright enforcement system but at the same time we also have, there’s no evidence that we, that state governments but the public universities in particular are just willy-nilly, reckless, serial copyright infringers.

Sara: Yeah, so I really am interested to see what comes out of this and to review the transcript when it’s available. I did miss the open Q&A session at the end of the day so I’d like to go and see what was said there but in general, I really didn’t see a whole lot of evidence to suggest that sovereign immunity really needs to be abrogated and that there’s widespread infringement going on. So, it’ll be interesting to see. And my other experience with with individuals is that most people are just really afraid to violate the law and even when they have clear, what I would view as clear instances of fair use, some people are just very risk-averse and they don’t want to even try to engage with fair use and so, you know, I just think that it’s not the norm or the case, in general, that people are you know intentionally infringing copyright, especially on our campus where those are the folks that I’m engaging with and so it’ll be interesting to see what the conclusions of that round table discussion are.

Douglas: Yeah, I mean, I can even think of a sort of related example of the we have a requirement to provide accommodations for students and staff but obviously, the most important for us as a university for disability accommodations in the classroom and you know, I regularly am getting questions about whether copyright-protected material can be used and adjusted in the way necessary to make it accessible for someone with a disability and that’s, you know, that’s really sad that people are so so worried about potential claims, lawsuits related to copyright infringement that rather than than what should be the default answer, of course, we can do this for students who are visually impaired or hearing impaired in some way to make sure that they have a good quality experience in classroom equivalent to the other students, you know, that instead they’re, you know, they’re coming to to our office and saying “Geez, gosh, can we, you know, can we do this? Can we comply with the Section 508 of The Rehabilitation Act? Can we comply with the Americans with Disabilities Act because we’re worried about copyright infringement” and that’s a really kind of a sad commentary on the state of things but it also highlights the fact that people are not, again, they’re not out there just, you know, infringing at will and doing it without regard to copyright laws. They’re much more concerned about copyright infringement than anything else.

Sara:  Yeah, and I definitely agree. I have not had instances where I met with people and I explain copyright law to them and they’re response is “I don’t care I’m going to do this anyway” or something like that…

Douglas: Right, of course.

Sara: I just haven’t I haven’t had that experience and so, I think it will be, yeah we will have to keep our eye on what what happens from here on out in this study and you know, keep on just telling the story of of what’s really going on at universities and thanks so much for joining me today. I hope people found this interesting. I found it really informative to participate in the round tables. I was so glad I was able to do so because this time we did them remotely so that made it much easier for everyone to participate and I just appreciate your time talking with me today about it.

 

Douglas: It was my pleasure thanks for having me in and they said you know with it might be that we end up here having another discussion in the wake of the Copyright Office issuing their report and could very well be back in the same position and you know, another year, two years what have you of another a new federal law that where they try to kind of fix the failures in the one that was overturned under Allen v. Cooper and you know, all of us having, you know, kind of trying to make the case yet again that they haven’t met the threshold of showing widespread intentional infringement without regard to the rights of the owners so we’ll see what happens.

Sara: We will and regardless we’ll just keep on informing our users on campus and keep on being good actors and we’ll see what shakes out.

Douglas: That’s exactly right and for you and for me, Allen v. Cooper didn’t really change anything. right? We’re still, we’re still out there thinking about this, trying to inform people, doing a careful analysis of all the actions of the University and you know we’re not just as you’ve said we’re not just saying, “We just don’t care about copyright now because we have state sovereign immunity.” We still care just as much as we did before.

Sara: Well, thanks a lot and I will definitely circle back when we get the results of that round table discussion because I’ll find it really fascinating either way no matter what they say.

Douglas: Indeed, yup, same here

Sara: Bye

Douglas: Take care.

 

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