Guest post by Kevin L. Smith, Dean of Libraries at the University of Kansas
On March 23, 2020, the Supreme Court announced a decision in one of the three copyright cases before it this term, Allen v. Cooper, a case that involves alleged copyright infringement by the state of North Carolina for using some video shot by a private videographer of the salvage operation for Blackbeard’s notorious pirate ship, the Queen Anne’s Revenge. Predictably, the Justices cannot resist word play about piracy and copyright infringement. The truth is that the case is really about sovereign immunity, so the jokes might have more appropriately focused on Queen Anne. The question presented in the case was whether a state can be sued in federal court for copyright infringement, and, specifically, was the effort to allow such lawsuits through the Copyright Remedies Clarification Act a valid exercise of Congressional authority.
Both these questions received a resounding “no” in the unanimous opinion. The Court found that Congressed did not have authority, either under its Article 1 power to grant patents and copyrights or under section 5 of the 14th Amendment, to abrogate sovereign immunity to create state liability for copyright infringement. Patent practitioners will not be surprised that much of the discussion focused on the Court’s 1999 precedent in Florida Prepaid. Indeed, most of the debate in the case, which feature a majority opinion and two different concurrences, focused on the amount of deference due to established precedent, and it seems pretty clear that much of the background in this discussion are positions being established regarding Roe v. Wade.
To me the big question coming out of this case is how much it changes the landscape for teachers working in public schools or universities. Can we all breathe a sigh of relief and no longer worry about copyright infringement? I want to suggest that this decision doesn’t really change much, and that educators employed by states should pretty much continue to do what they are doing, relying on fair use but not throwing all caution to the wind. Two important points occur to me.
- There is still injunctive relief available against a state entity for continuous violations of federal law, under the Ex Parte Young doctrine. The long running lawsuit by three academic publishers against Georgia State University is premised on this doctrine, and, even though the publishers seem to have largely lost on fair use grounds, this case that is now as old as some fine Scotch is still costing GSU time and money. So simply relying on a “go ahead, try to sue me” attitude still seems unwise.
- Employees of non-profit educational institutions also have another protection from liability, in section 504(c)2 of the U.S. copyright law. This statutory defense remits all statutory damages – the biggest bite available to most copyright plaintiffs – for such employees who have a good faith belief that their actions were fair use. If this provision is to mean anything, it must mean that the revision applies even (indeed, only) when that belief was mistaken, so that a court has gotten to the issue of damages. In effect, this provision has already widened the scope for fair use decisions made by the very teachers and faculty who might think they could benefit from the ruling in Allen v. Cooper.
So maybe it is only the folks who represent state institutions who need to pay much attention to this case. It is an arrow in their quiver of defenses to raise if they get sued. But teachers and faculty at those institutions should go on as before, making smart fair use decisions, even as they recognize that both Congress and the Court have given them some extra breathing room.
Fair use is crafted for the benefit of educators and researcher. The examples of the kinds of activities that might be fair use makes this clear, since five of the six examples are education related: criticism, comment, teaching, scholarship, and research. These examples are not per se fair use; the factor analysis still must be applied. But they do indicate that Congress intended to give educators a great deal of latitude in making fair use decisions, as well as a reduced risk, based on the 504(c)2 provision discussed above.
As most educational institutions move to online teaching during this period of efforts to contain the outbreak of COVID-19, teachers and faculty should keep this latitude in mind. Our first priority should be providing the best education to students in the online environment, and doing it as expeditiously and efficiently as possible. Many publishers of academic materials are moving to make the resources they publish widely available. In my own copyright law class, I use an open casebook, but also asked my students to obtain and read a monograph from MIT Press, and at our request, the Press gave each student a link to download a no-cost copy of the book, in case they did not have the purchased copy with them when they were told to stay at home. I mention this to illustrate that publisher are thinking about these issues with us, and have tried to be helpful. It is also the case, however, that sometimes we will have to rely on fair use, and that is OK. With or without the Supreme Court’s ruling in Allen v. Cooper, fair use was made for us, and it was made flexible precisely so that we could respond to changing circumstances.
Recently, a group of copyright specialists in academic libraries, many, but not all of whom are lawyers, drafted a statement about fair use in a time of emergency, which can be found online with a list of signers and those who have endorsed it (full disclosure: I am one of the signers). This statement recognizes a long-acknowledged fact about fair use — it is extremely driven by circumstances – and makes an effort to assess how the extraordinary circumstances under which teachers and academics are now trying to deliver their courses might impact a fair use analysis. It really simply serves to remind us that fair use is flexible, adaptable, and designed to support teaching and research. Whether or not our state institutions can be liable for copyright infringement damages (and the Court has now told us that they cannot be), fair use remains our most useful and productive legal tool in this enterprise.