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Read the Internet Archive Injunction Order here. Sara: Welcome to another episode of copyright chat. It's been a minute I've been on Sabbatical. I've been traveling to Geneva, working at the World intellectual property organization on some research. So, welcome back, we have a very exciting episode talking about the Internet Archive litigation with Jonathan Band from policy bandwidth. He is a renowned lawyer in intellectual property and policy out of Washington, DC. His views are his own. Nothing in this podcast, should be taken as legal advice, of course. But welcome, Jonathan.   Jonathan: Thanks for having me.   Sara: I would think, since this litigation has been pending for quite some time that most of our listeners are familiar with it. But we can go through a little bit of background. So the Internet Archive was sued by authors and publishers, because, largely as I understand it, because of the emergency lending during Covid. Is that your understanding, too? I mean, that's what prompted the suit     Jonathan: The suit initially was filed right after the Internet Archive announced the National Emergency Library early in the pandemic. But very quickly, as you know, with the pleadings and sort of look looking at where the decision ended up. The decision hardly focused on the National Emergency Library at all that just got a paragraph in the decision. It was really focusing on the controlled digital lending under the Internet archives open library. So it could be that that the National Emergency Library is what really got the publishers’ attention and that's what prompted the filing of the lawsuit. But the case ended up being about the open library more generally. And what's interesting about that is that that was not new. I mean, the Internet Archive has been doing, lending through the open library for a while. So you know I'm sure at some point in the future we'll sort of look back and try to figure out. You know why. what prompted it, and why and why did they not sue about the open library earlier? But that's, you know, not completely relevant to today's discussion.   Sara: Yeah, I also think that's interesting, because my own take on it, maybe not accurate, but my own take on it was that the authors got mad because they were. They kind of. They kind of went a little excessive, I guess, in the emergency library, saying, Well, we're gonna lend more than maybe one to one. Well, and they claimed usually to be lending older books. Maybe 5 years past publication date, but they threw a few newer books in there by mistake. I understand it was kind of not intentional on behalf of Internet Archive, and that was what kind of perked the ears up of the authors and the publishers. But yes, I mean, the case is broader than just the emergency. Library, which I think is important, because some libraries such as my own, were engaging in controlled digital lending through the Hathi Trust during covid, because we couldn't let people in the doors. We had a pretty justifiable, I think, reason, and the fact that they brought in this lawsuit up probably made it harder on the side of the Internet Archive to justify what they were doing. I don't know. Maybe that's my own, my own conclusion there. But the outcome, as we know which recently happened, was an injunction that told the Internet Archive, as far as I understand it, to stop doing CDL. Essentially, for now.   Jonathan: right well, it's a little more. Let's fine tune that a bit. So first of all, what happened is, you know, the lawsuit was initially filed back in 2020 when the National Emergency Library was opened. And then again, as I said, it sort of morphed into this focus on controlled digital lending by the open library. More generally. The judge issued a decision in in March of this year. So March 2023, basically saying that the open libraries controlled digital lending with respect to 127 books at issue in the case. So that was the 127 books identified by the publishers hashed, and the other publishers involved in the litigation. You know that that it was not fair use for Internet Archive to distribute those titles through its open lending. It's open library project in a controlled digital lending manner. Then the court said, Okay, now, parties, you figure out what happens next in this litigation, how we should proceed, what the order would excuse me, what remedies should look like and conceivably there could have been an additional a trial over damages there could have been a trial over saying, you know, or what about other books beyond these 127. But instead, what happened is, the parties started talking to each other, and they negotiated. And they basically they were negotiating, negotiating the judge. You know, the judge initially wanted them to, you know, come back with a proposal within a couple of weeks, and they kept on asking for an extension, and the judge gave them extension after extension after extension, and finally, a. At the end of July, the judge said, no more. You guys decide. You know you have to do something within 2 weeks, or else you know, I'm gonna do it. And so then within 2 weeks the parties came up with a proposed injunction. So they basically came up with a draft injunction, a proposed injunction that the court then approved. Now the injunction, basically said that Internet Archive and its partners, which include some libraries that were working with the Internet Archive would no longer reproduce or distribute covered books, and we'll get back to that in a minute. Covered books through the open library. And then the question became. What is the meaning of the term covered books. and that's where the parties had a disagreement, and presumably that's what's been. Why, there was all this delay, you know. It could be that they agreed pretty much early on on most of the contours of the injunction, but that they couldn't agree on covered books and covered books. The Internet Archive said covered books should just be books by these publishers issued by these publishers that are available in ebook form. Yeah, you know, sort of commercially through overdrive or through Amazon, kindle, but they have to be again available in ebook form. The publishers, on the other hand, were saying, No, no, no! Covered books should be any book that we publish or have published. You know I don't think there was. I don't think they were saying it necessarily needs to be in print. I figured I don't 100% remember. But it basically, the issue is, is it ebooks which are sort of currently available or books, general and so they submitted that question to the judge and the judge very quickly. Within a day, or actually over a weekend, the judge said, Okay, covered books means ebooks. Because you know what the Internet Archive argued, is, that this whole case has been about ebooks, and the fact that you know, the publisher said. It's not fair use because we are selling these ebooks. We're making these available now in ebook form, and the open library competes directly with the ebook market. So the case is about ebooks. And so, and the judge agreed that this case was all about ebooks and the harm to the ebook market. And you know, because that's what the case was about. The injunction can't be any broader than that. Can't talk about books generally. And so the injunction covers ebooks. But interestingly, it's not just this 100 727 titles. It's sort of any book that these publishers publish in ebook format. And they're supposed to provide Internet Archive a list of their titles. And they will. And then the Internet Archive is supposed to pull those out of the open library. It doesn't seem that it has to be titles that are now available in ebook. It could be if the publishers make other titles available in ebook sort of like their backlist. That's currently not ebook that they can make them available as ebooks. And at that point, Internet Archive needs to pull those out. Even though this injunction just covers these publishers, there is sort of like the side letter where the Internet Archive. I don't know if that side letter has been made available. But, the way it's been described is that in in in press releases is that other members of the Association of American Publishers who sort of like were behind this litigation if they want to sort of opt into this deal. They can do that, too. And I'm not 100% sure but what the you know to what extent the Internet Archive is committed, but it's sort of like if they don't do it, then they'll get sued, and you know they would have to do it, at least again, with respect to the ebooks. So that's that's the the basic framework of the injunction.   Sara: Yeah. So for those folks listening who are not lawyers. Injunction really means stop. You are being ordered to stop doing this. If you don't. If you violate that I'm assuming you're gonna get damages imposed against you.   Jonathan: Well, yeah, yeah, you'd be right. You'd be held in contempt. And in this case, yeah, damage. Or you know, you'd be fines would be imposed. You know. I suppose if it's sometimes with criminal contempt, you could go to jail, but I don't think that would happen here. There's no reason to believe that Internet Archive won't just comply. And you know, pull those titles. Yeah.   Sara: And also, as you pointed out, the one important factor is, it's a consent injunction. So you know, the parties did agree to this injunction. Then the judge signed off on it. So yes, I don't think there's any. There would be no reason they would be doing it intentionally. There might be an accidental thing that happens. So you answered a lot of the questions like, I think this gives the publishers an incentive to start making more ebooks, would you think.   Jonathan: Yes. In in theory it you know, some of their back list that is currently not available in ebook format. They might make available. But there's also the question as to why they haven't done that till this point. It could be that th

To read the full opinion, see https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf Hello. And welcome to a special edition of Copyright Chat. Today, I wanted to update everyone on the most recent, exciting decision from the Supreme Court that is relevant to fair use. As you know from listening to previous episodes of Copyright Chat the Warhol decision from the Second Circuit Court of Appeals was appealed to the Supreme Court. And very recently, there was a decision on May 18, 2023. So just a spoiler alert. For those of you who don't want to listen to this entire episode. The case was upheld. It was affirmed by the Supreme Court. The Court found that the purpose and character under the first factor of fair use. Warhol's use of Goldsmith's photograph was not a fair use. And that was the holding of the case affirming the Second circuit court of appeals. For those of you who want additional details, just as a reminder, this case centered around Warhol using a photograph of the late great singer Prince. It was Goldsmith's photograph that she took for Conde Nast. She took and then licensed the photograph originally to Conde Nast for an artist reference. She was paid $400 for that artist reference and the artist was Warhol. That first use was actually permissible under license, but then Warhol took the photograph and made another series out of it. And then he licensed one of those prints back to the magazine and was paid $10,000. Now that particular use was not condoned by Goldsmith who then sued and the court had found at the lowest level that it was a fair use. It was reversed and then the Supreme Court also found it was not a fair use. Why? Well, the court noted that just because you add a new purpose or meaning or message under the first factor of fair use is not in and of itself enough. You have to consider the degree to which your new meaning or message changes the original work. You also need to take into consideration whether you are making the work commercial. Now, the court does note helpfully and correctly that commercialism is not the be all end all of the first factor simply because it's commercial. We know this. That does not mean it's not a fair use, but. The court does point out many cases where works have been borrowed and they've been changed even quite substantially and still it is considered a derivative use. The classic example is someone taking a book and turning it into a movie. Of course the movie has new meanings, new messages, many things might be changed. But we still consider that a classic example of a derivative work and not a fair use. The reason that they found this particular instance not to be a fair use was mainly because the work at issue here, which is a photograph of Prince, had itself been licensed to a magazine. And that was clearly one of the uses of those photographs. So therefore it was eating into the market of the photographer when Warhol used that same image as a basis for his derivative work and sold it to a magazine. How will this impact? Future analyses of fair use and how might this impact libraries. The good news is that it really doesn't change fair use law. What the Court does here is just clarify things and kind of lay out the differences between fair uses and derivative works, which is always an issue for courts below. One thing I think to think through though in light of this decision is that not every new meaning or message that you can add to work means that it is a transformative fair use.You must consider the degree to which you are changing the work and also whether it is displacing the market value for the original or a commercial. I think these things were always things we considered, but I think the court lays it out a little more clearly. How will this impact libraries? I think luckily the answer is not much. You know these works were being used in the same market there they were both creative works they were both artistic works and In libraries, we're often using works for non-commercial purposes and for research and for, other types of uses. And so I do think that the good news is that, this doesn't change the law a whole lot. It, clarifies the law a little bit, but there's really nothing too negative that comes out of this case and I think that that is the silver lining. It is not a bad idea to read the case, especially if you're interested in fair use and particularly transformative fair use because it does a really great job of clarifying, you know, the difference between a derivative work and a transformative fair use. And I think that that is one of the 1 million dollar questions I usually get on teaching fair use to students. Is where is the line between a transformative use and a derivative work? And so I think that this is a good case to read. I think it's a good case to try to understand if you care and are trying to apply transformative fair use to your work and are trying to apply transformative fair use to your works. But I think in terms of libraries and those who are. But I think in terms of libraries and those who are using, works for research, education, non-commercial I don't think it's gonna change our fair use analysis in a huge way. So I think that that is the real. Bottom line, I think, folks should definitely read the case for themselves. I think that they should, certainly build on the analysis here and feel comfortable. If they are adding something new in a different way and also maybe critiquing the work or using it for research or using it for educational purposes then those are good, classic fair uses that are not really changed by this case. And, otherwise I think, it's just a great thing to have some more clarity on the difference between transformative uses and derivative works. So I hope you found this useful. I do encourage you to read the case for yourself. See if you can find other nuggets of wisdom from, Justice Sotomayor's opinion here. But in general, there's nothing to different or new that comes out of this case. And I think that it is not going to change our practices at the university and research level too much. I'm glad you were here. Thanks for listening. I hope to see you again. Alright, bye bye.  

To read Sandra Enimil’s Blog from Harvard’s celebration of Fair Use Week that is referenced in this podcast episode, go here: https://blogs.harvard.edu/copyrightosc/2023/02/22/fair-use-week-2023-10th-anniversary-day-three-with-guest-expert-sandra-aya-enimil/   Sara: So, welcome. This is a live version of the copyright chat with Sandra Enimil from Yale University Library. We are here, and celebrating Fair Use Week. Welcome. Sandra: Da, da! That's the trumpet sounding. Sara: Very exciting. It's the tenth anniversary of Fair Use Week. I'm super excited, and I'm even more jazzed because we have a pending Supreme Court case. Sandra: Very exciting! Sara: Tell us about it. Tell us what you think about it. What do you think about it? Sandra: Alright! So the case is Warhol v. Goldsmith, and it is a very exciting case, I mean. There's the thing of there being, two artists, you know, who are being, you know, not being pit, but they are pit against each other, and a third artist, you know, is the subject of the photograph of which you know one of them, you know made it.  I think it's a really very beautiful photo of Prince. And then it became an Andy Warhol—Andy Warhol treated series of full of photographs and paintings, and whatever. The original photographer, Lynn Goldsmith, then, you know, finds out that you know this image has been “Warholized” basically. And you know, contacts of Warhol Foundation to say, this is my image using my image. What's going on? Nobody's asked for permission. Nobody has a license, and the Warhol Foundation says it's fair use. Actually, we're gonna go to court and get the court to say that it's fair use. We're just, you know, you know. You go away. Goldsmith does not go away, and she, you know it, you know, pursues it. And now we're at the Supreme Court waiting to see, like what the court is gonna say about is this fair use? You know we heard, I think, at in the hearing, the oral arguments we heard, you know, transformative being tossed around. We heard questions about why this particular image? Why didn't Warhol, you know, take his own image. Interestingly, you know, we don't hear anything about Vanity Fair, who they license the image, and then they just gave it to Warhol and said, Hey, do your thing with this and he didn't like not even mention anymore. That is like, so how that works. Okay? They license it right? Sara: That's an interesting point, because they licensed it for the 1985 version. Sandra: Right, right. Sara: They knew they didn't have another license, but you know we know why, right? It's the deep pockets, and they're going for the deep pockets and Warhol made all the money off of it right? Sandra: Like, who is right, who has a deep pocket? Right? Yeah, Warhol made all the money. Sara: Not Vanity Fair. Sandra: Warhol made all the money. Yeah, yeah. So yeah. Sandra: So you know I and I still like it not even sure how I feel about the whole thing. I am, you know, really kind of like is, this is, is, is it not? Is it fair? Is it, you know, like thinking a lot about it? And I, it's actually it's like this, I'm going into a tangent. So apologies. But Kyle Courtney host, the Harvard's that has a fair use blog for on Harvard's system, and you know, every year he asks folks to write something about fair use and I was just like kind of struggling with what I wanted to write about and decided, okay, I'm gonna write about this case. But kind of not really. So writing about something that's real tangential. Again, and it's about the use of likeness. So it's about it's basically about Prince. It's about subjects and photos, and they're people's ability to say, yes. So certain things happening with images that you know contain their likeness and then I'm gonna find a way to loop that back around the fair use at some point tonight, while I'm you know, finishing it up and crying. You know as you do as a forget procrastinator. But I just you know I've just been thinking a little about that about the use of his likeness, and how this is the set. It's the center of the dispute, but he's not really even part of it. Much like Vanity Fair. Like he's not even part of this, I mean the considerations around him is not really a part of it. Sara: Yeah. The part where I saw him come into it the most frankly was during the oral argument, where there were weird ways, one where people were joking about whether they, the Supreme Court justices, listened to Prince. Like what? And then also because one of the arguments about the transformative nature of the work was that the original photograph was supposed to be vulnerable right, and that the new photo by Warhol was meant to like be like pop culture and like commercialism and all this. So that was like the transformativeness arguably. Sandra: Right and that's what the you know. So his side is trying to try to make that argument of that. They needed this photo. They need because it's an early photo of him. And they needed to use that, because, of course, the common is like, why can't you use to use anything else or take up another photo of him? Or you know as Warhol has done in the past. He's taken his own photos, and then, you know, done his. The extra process that he does to things, or paid for licenses, which he's also done before. And so they're like, well, why this photo? Because you could have done anything else. And so that, yeah, that was their response was that it had to be this one because of the reasoning of the original, and how it looked and presented. Sara: But I, okay, I I know you're presenting it, as this is what they're arguing. Sandra: That's what they're arguing. Sara: But like the extent that they made the comparison, I really bought this comparison, which was they made the comparison to this Campbell soup cans right and saying like, Oh, well, why do you do it? Of Campbell's soup. He could have done it for Cheerios. He could have done it. It's like, yeah. But he wanted to do that brand, because that was the brand that was like comfort comforting like, you see, it. And you're like your kids sick, and you gotta buy them like the Campbell’s soup right? Sandra: Yeah. Sara:  And like that was the that was what he was going for, and same thing like he could have gone for another image could have gone for another artist. Sandra: Yeah. Yes. Sara: But he didn't want to. This is what he was doing. And like also, are we seriously going to start telling artists like Warhol? Which brand they should critique like a you know what I mean like it's I don't know like I'm not. I don't wanna be in that business. Sandra: I don't know. So the thing that's like awful, you know, I cause I like, I said. I have been all over the place with this, too, and like listening to a bunch of different commentary about it. And I'm just like, you know, Warhol and Goldsmith. They're both white, but one is a woman, and one is a man, and I like thinking about like the dynamics of that. You know that he feels like he could just take this thing from her there, you know I'm you know. That's in there and then also, like, you know, Prince, like I said, he's just he's just there, kinda you know, like he's not, you know, not even getting like the prints like it's Prince kind of thing. It's just he's just there, you know, as the black artist, you know. So I just I don't know. I have like so many things that are circling around in my brain, rattling around. Sara:  I like that. Our, I mean, I hadn't thought of that point of like the gendered point, and also the fact that, like, you know, she really didn't get it paid a lot right. Sandra: No Nope. She didn't get paid. She didn't get paid a lot, and then it's like when she goes to say, Hey, what's happening here? There isn't like, Okay, maybe. Or maybe there was I don't know we don't know about. I don't know that, you know. They didn't offer her something. Maybe they did. But you know what we know from like the filings that they came and said, we want the court to tell us that what we did was okay. And I'm just like I don't know. I'm kind of struggling with that, you know. Sara: But that's where. Okay, yes, but that's how every good, fair use case happens, isn't it? I mean, like. Sandra: You know, I know I'm on pins and needles and like know how it, how it, how it's gonna end up right? You know. Sara: Well, I also wonder. And I really, really do wonder this, how it could or would impact libraries at all. And I said this about the second circuit opinion, where they said, like, you can't change art into art. That's not transformative and my response to that is well, you know, libraries aren't really in the business of making art so. But if they start making new transformative decisions, right decisions about the purpose and character that could impact us a lot. So it depends on what they have to say. Right? I'm back to. It depends. Sandra: I mean, I think, like the how we sometimes get stuck with transformation is like, we think it has to be like a whole new thing. And I think for a lot of the work that we do. You know. Obviously, it's not everything, but for a lot of it. It's not transformative. It's like kind of working in the same direction as the original thing. But you know we have a smaller audience, or we're only using this. A portion of it, you know there are a number of other things that really help us if we don't have that transformative piece of it from the first factor. But yeah, I also don't know how it will impact us. We're not alone in that.  I think in a lot of the amicus briefs that kinda went around, you know, at least from the library perspective. It was like, we're just concerned. We don't. We're not saying which way to go, but you know we're watching. Sara: Yeah, it's kinda like, do no harm right like, do no harm.  Supreme Court like you c

  You can listen to the oral arguments yourself here: https://www.supremecourt.gov/oral_arguments/audio/2022/21-869 Pia M. Hunter is a Teaching Associate Professor at the University of Illinois College of Law and the Associate Director for Research and Instruction at the college’s Albert E. Jenner Jr. Law Library. She holds a J.D. from the University of Illinois College of Law and a Master of Science from the School of Information Science at the University of Illinois. Prior to joining the law library faculty, she served as Visiting Assistant Professor and Copyright and Reserve Services Librarian at the University of Illinois at Chicago (UIC) where she researched and developed best practices for copyright and fair use for instruction for the UIC campus. In 2013, she led the initiative to create Fair Use Week, an annual celebration that highlights the fair use doctrine and its significance to artists, students, faculty, librarians, journalists, and all users of copyrighted content.   Sara:                    Welcome to a live recorded episode of Copyright Chat today. I am so excited to bring you the wonderful Pia Hunter. Welcome, Pia. Pia:                      Thank you, Sara. It's a pleasure to be here. Sara:                    So if you didn't know, Pia is a law librarian at the University of Illinois College of Law and a founder of Fair Use Week. Tell us about that Pia. Pia:                      Oh, gosh. Fair Use Week is, first of all, it's so wonderful that it's, we're coming up on a 10 year anniversary in February, 2023. I'm truly excited about that, but it is the result of a, a meeting of librarians back in 20 12, 20 13, and we were talking about the significance of fair use and not only how important it is to academics and scholars, but to everyone, to, to artists, to people every day who create content, everyone. And so we were discussing how wonderful it would be to set some time aside each year to acknowledge fair use, why it's significant in our everyday lives, and promote it to everyone so that we can take up the banner and protect this, right? Because I know that it's an affirmative defense in terms of the Copyright Act, but there are things we can do under fair use, and we, we use fair use every day. And so Fair Use Week is designed to promote and, uh, inform people about that. Sara:                    That is really exciting. I keep forgetting, we're coming up on the 10th anniversary, and this is a really interesting time p to be talking about fair use because as we know, the Supreme Court is addressing transformative fair use right now. Pia:                      I am, I'm not afraid to admit that I am a bit nervous <laugh> about this case. I Sara:                    Think I, I think I said that in a nervous tone, <laugh>, Pia:                      I think you said, I think your tone certainly reflects my, my feelings on the subject. And I'm looking forward to our discussion because a lot's been happening lately. Sara:                    Yes, a lot has been happening. So if you haven't been paying attention, let's get you up to speed. There is a very exciting case involving the Andy Warhol Foundation and a photographer and the late great singer Prince. So this is a really fun case that is up at the Supreme Court. Of course, it started below and in the lower court, um, the Warhol Foundation had one on its fair use claims where Andy Warhol borrowed, I say borrowed in a nice way. Um, the photograph of this famous photographer who took a photo of Prince, and he originally had, had permission through licensing to use the photo for an inspiration in a magazine article. But later on they, they, he had another reproduction and he did not have permission, and he claimed fair use. And in, in the Second Circuit Court of appeals, they reversed and said, Nope, it was not a fair use. And the issue at the Supreme Court was all about purpose and character of the use and whether it was transformative, which is, oh, scary to me because the last time Supreme Court addressed this was 1994. Pia, tell us some more about kind of what the arguments are on both sides. Pia:                      Okay. The arguments from the Goldsmith side, that's the original photographer, the artist, is that basically the Warhol Foundation has not produced this content in any way that is transformative. And when we went into oral arguments, there was a great deal of discussion about factor one, what is the purpose and character of the use? And the justices were really clued into fi trying to determine how the photograph was diff different in what ways from the Warhol piece, which is an artistic rendering and has been produced many, many times in several prints and sold over and over again. There's also, and on the Warhol side, they're claiming that it's a transformative use, that even though the commercial purpose of is the same and similar, that Warhol by taking the photograph and creating a painting from it. And from that painting came several other prints that were licensed and sold and so forth and so on, that this is a completely new work. Pia:                      And the justices seem early on to be pushing back against that because if you look at the photograph and you look at the paintings and the prints and the reproductions, you can s it's obvious that those come directly from the photograph. And this is what's troubling to me because I think for so many years there's been a lot of talk about transformative use in terms of a fair use argument. And quite frankly, I think transformative use has dominated to the fact that it has overshadowed some of the other factors that are just as important. So this case may bring some balance back to looking at all four factors, because if you consider all four factors, then this could very well be a fair use. But if you're basing it solely on whether the, the level of transformative, then we run into, into some difficulties. Sara:                    That's an interesting perspective. I think, um, I agree with you that on one side they're arguing that, um, it was just the same use, right? So I think that the, the thing that troubled the court here was that on the one hand, this photographer was in the business of licensing her works to, um, vanity Fair and other magazines. And that was the purpose that Andy Warhol also used his work for in this instance. Now, to me though, Andy Warhol in general has very different uses for his works, right? His works hang in many mag in many, um, museums, people come to see his works. They're not only used in magazines. Now, I'm certain that this photographer also could have her work in a fine art museum, but I do think that there are broader uses for a Warhol work. Um, and a lot was brought up about the other Andy Warhol case, the famous soup can case, right? Sara:                    Where the judges said, oh, well, this is not as hard a case in that instance because the soup cans were used for a different purpose, right? And normally the logo on Campbell's soup cans was used to market the brand. And of course, um, the use by Warhol was to show mass consumerism. Um, one point that the, the, uh, uh, photographers, lawyers made was that he had to have some necessity to use that particular photo. I wonder what you make of that argument, Pial, because the justices seem to be kind of buying into that a little bit. Pia:                      They did seem to buy into that a little bit. And the necessity argument is one that I find fascinating because it was ne it was necessary to use the Campbell soup can in its entirety, it's, it's it's logo, it's symbol. You look at that automatically and you recognize that it is Campbell's soup. So the necessity argument and Warhol's subsequent series of that discussion sparked a discussion of consumerism. When you, when I look at the Prince photo, I'm a little <laugh>. It's funny, I am such a huge Prince fan that when I look at the Prince photo, I think that it's Prince. So it has to be necessary <laugh>. And I know that's not a legal argument. It's more than mentality, I think for me than anything else. But looking at this, it's, it's, it seems that the justices are buying into that, that philosophy. I'm not sure how sustainable that really is in the long term. Pia:                      He could have picked any number of photos or images to do that exact same thing. It didn't not necessarily have to be prints, but because it was print, I think that lends itself to the argument about the fourth factor and commercial use and market for the work, because he's doing what is considered a reproduction. And I know that the, uh, Martinez, Mr. Martinez, who's the Warhol's attorney, used the term follow up work. And in my mind, that is the same as a derivative work, which falls to the bundle of rights that is reserved for the owners. So as this goes on, it'll be interesting to note how they, they, they parse out each factor and really examine what's happening in terms of the original content. Is it truly a derivative work? What's the difference between a follow up work and a derivative work? I mean, I think it's, it's a subtle nuance there, if there is a difference at all. And they're gonna have to examine each of these factors closely. So this, this may be something that, that justices appear to embrace now in the early stages, but I think that, that, that may change as time goes on. 1:                         Yeah, I think that's interesting. And I, I agree with you that one of the cruxes of the, the issue here was what is the line, or where is the line between a derivative work and a transformative work? Although to me, that's always been the question, right? That's always been the million dollar question in these types of cases. It just was made even more salient here because one of the things that they

Also check out the ALA Policy Corps  as well as the ALA Advocacy website Sara:    Welcome to another episode of Copyright Chat. It's been a hot minute sorry about that everybody but today we have a        very special guest. We have Jim, Neil. Hi, Jim! Jim:     Hi!  How are you? Sara: Great! And Jim is the University library in emeritus at Columbia University. He also served as ALA President, and he received 2 awards from the ALA, the highest award on as an honorary             member in 2022, as well as the L. Ray Patterson copyright award. Congratulations Jim! Jim:     Thanks, Sara. Sara: So, Jim, I just wanted to get started. How did you get involved in copyright, as you're not a lawyer by training. But you've been such an advocate in the copyright field and            I'm just curious how you got involved in in the beginning. Jim:     Well, it it actually goes way back to the early 1970s. I graduated from Columbia School of Library Service at the end of 1972 and began working as a librarian the following year, and you'll recall this is when a lot of the discussion and debate began to revolve around the updating and modification            of the US Copyright Law. And so my early professional career was advanced during this period of time, and I participated in many of the early discussions that led up to the 1976 copyright law. And so I was born in the context of fair use and the context of the exceptions, the limitations that define the ability of libraries to serve their communities. I hung out with copyright in a pretty low level way until the late 1980s, and it was at that time when so much of our work had become automated, and we're beginning to see the early publication of the things that we had historically acquired in print were now becoming available electronically, and of course that would explode in the 1990s. It was also the time that two other things happened. one in the mid-1980s, I'd become very interested in national information policy and my initial plunge into that was in the area of government information: Making sure that the information the Government produced was widely and openly available and accessible. But, in 1990s I also became Dean of University Libraries at Indiana University, and that was at that time that I recognized how important it was for up or major research libraries, and by extension all academic libraries, to play a significant role as new thinking about copyright began to evolve. I worked with the Association of College and Research Libraries. I worked with the Board of ARL, of which I was then a member, to really position us as associations that were part of the national debate around copyright. I also worked with Indiana University to create what I think was the first University library-based copyright advisory office at Indiana University based in Indianapolis and we hired Kenny Crews at that time to run that office. And so I began to meet with groups of librarians around the country, with different boards to develop strategic direction and actions around copyright. And when I made to move from Indiana to Johns Hopkins where we created a similar copyright office. I got a call from Washington asking me if I would be willing to join the US delegation that was going to go off to Geneva to participate      in the World Intellectual Property Organization, a diplomatic conference negotiations on copyright, the basic   objective being to update the international copyright law to reflect the digital and network environment in which we were operating. So I went off for 3 weeks to Geneva, was an advisor to the US delegation. I tried to get exceptions, limitations, and fair use into the discussion and the debate and that ultimately, of course, led to the             adoption of the Digital Millennium Copyright Act in the United States. So that sort of explains the early involvement in             participation. Sara:    Sounds like it was an adventure beginning with the change to the Copyright Act in 1976 all the way through the Digital             Millienium Copyright Act, which, of course, is still debated today. And the library exceptions which we're still trying to get      at an international level today, so it's still ongoing. This work never ends, Jim, when is it going to end? Jim:     I think it's perpetual. You know we play a lot of defense in the area of copyright not wanting to open up discussions about aspects of the copyright law that really benefit us and enable us to support our communities, but there's been so much effort to strengthen copyright on behalf of the copyright creators, and therefore we've been active in Washington for the last 20 years, trying to prevent unnecessary, inappropriate, and difficult to work with copyright changes coming out of Washington. We've also had to deal with several important initiatives at the State level during that period as well. And I think we generally have been have done okay. We tried to work with the creator community to update section 108 of the copyright law, which is that section which specifically provides the exceptions and limitations for libraries and artists enabling us to do things like inter library loan, and make preservation copies, and copies for users, and so forth. But we did not come out of that 3-year process. I was on the 108 study group. We did not come out of that process with an acceptable plan of action that would enable all interested parties to reopen 108 and make the necessary changes. And so that was an interesting process. and I learned a lot about how copyright works. And who is involved, and what the relationship is between the publishing industry ,the creator industry, and the copyright office in Washington. So we've done, I think, modestly well representing libraries, but there's so much more work to do. Sara: You mentioned the section 108 study, and I do assign that             discussion document from the US Copyright office that came out of that study to my students and often they say to me, Professor Benson, why hasn't this happened? What's going on? There's a model law at the end. Why has this not happened? My perspective, and I wonder what your perspective is, is that potentially opening up section 108 could be problematic. Given what happened with some other portions of the Copyright Act, such as the TEACH Act that went South. I mean the TEACH Act is good in theory. If you're, unfamiliar with the TEACH Act it provides online opportunities for educational uses of certain works it's supposed to mirror the face-to-face teaching exception under Section 110(1). It's in section 110(2) of the Act, but unfortunately it became so cumbersome to apply that most universities, including mine, don't really exercise it. And I wonder what your perspective is about opening up section if we were to do that today? Jim:     I think it would be very difficult and challenging, and we would put our ability to serve our communities at risk. One of the real important debates within the 3 years of the 108 study group was are digital works covered by exceptions and limitations in copyright? And what is the role and purpose of contracts, licenses that libraries sign with publishers and other creator companies. What rules govern the use of those materials? And I think it's clear from litigation and from legislation that there are really two streams of guidance. One is if it's in print, you're probably going to be able to apply the exceptions and limitations in section 108. If it's in digital form, you're probably going to be mandated to use the provisions of the contract, the license agreement that you sign. The public law of copyright versus the private law of contract. And the problems that I have with that are that it means that I put this in the area of social justice. I always have. If you have good lawyers, if you have a lot of money. If you have influence you have good connections, you're probably going to be able to negotiate a better contract, a more favorable contract, then the smaller instructions that don't have good legal counsel don't have a lot of money, and are gonna just defer to the contract that they sign. To me, that is an issue of social justice and it's on that basis that I fought this from the very beginning. I think we don't want to open one way. It could really create a real risk to our ability to serve our communities. We have seen other initiatives coming out of Washington besides the TEACH Act. We recently went through the crazy CASE Act deliberations, and worked very hard in this provision of creating a small claims court capacity for people to get sued for supposed violations of copyright and making sure that libraries and library staff were exempt from those lawsuits. So I think it's going to be a constant battle, and I think, with a new Congress coming on board in the fall—and we're not quite sure what the political makeup will be of the Congress at this point, but we have we have some thinking about that, will there be new initiatives to upset the balance that we've enjoyed in the copyright arena. We're also seeing more what I would call legal court cases around copyright, than historically, we experienced. And I think what we don't want to happen is that judicial decisions begin to define what copyright is in this country, and I think that's going to be a real challenge going forward. Copyright for most of the American population has been one of those “MEGO” topics—my eyes glaze over. People don't really know what it is or care about it, or know that they should care about it, and we've seen over the last decade or so copyright appearing on the front pages of newspapers and hitting the popular press in the areas of music and film, and art. And so people, I think, are a little bit more aware of copyright. But too of

For more information about the Standing Committee on Copyrights and Related Rights, see this SCCR website Sara:     Welcome to another episode of copyright chat. Today I have Winston Tabb joining me from Johns Hopkins University he’s the University Librarian and a longtime expert adviser to the copyright and other legal matters committee to the IFLA organization. Welcome. Winston: Thank you. Sara: It's so nice to see you and to see you on the verge I understand of your retirement? Winston: Yes. I think it's going to happen sometime. I just don't know exactly when because I had agreed to stay until my successor was in place. So the process is moving along. I heard a rumor the day will come soon. Sara:     Well, congratulations! And I know throughout your career you've had a lot of interest and expertise with international copyright issues, both with the copyright and other legal matters committee and with the World Intellectual Property Organization. And I wanted to take this opportunity to kind of pick your brain about that process of how we the United States and IFLA engage with the World Intellectual Property Organization. From what I’ve heard, it seems to move pretty slowly and it’s a very political process. But, correct me if I’m wrong. Winston: Well, I think one of the first things to understand is what an unusual organization the World Intellectual Property Organization is. Within a particular subgroup, the Standing Committee on Copyright and Related Rights, which is the one with which we engage, I don’t remember how many branches there are at WIPO, but that’s the most important one for us. What I couldn’t believe when I went to my first meeting and it still amazes me is that you can have an organization with, I think, 185 of so member-states and WIPO functions entirely by consensus. That is, there is never a vote taken in the sense that you would have your normal body where 51% of the people would be able to prevail if they can do that. So any one country, whether it’s Russia or Ukraine, the largest or smallest country, can really bring things to a halt. And that’s why it is so frustrating sometimes because the progress is so glacial. On the other hand, when you do have a victory in an environment like this, it’s really a major one. So the most important thing that has happened, I believe that the 20 or so years that I’ve been engaged there is the adoption of the Marrakesh Treaty and it almost didn’t happen and took quite a long time several false starts and starting over. But part of the reason that happens in actual fact is because of the necessity for having consensus. Sara: Yeah, that’s a really good point. I mean, I think most people in the world, or I guess maybe not most, but many are aware of that treaty. And it seemed like a pretty smooth process from the outside. But can you give us an insider’s view a little bit of how long this was pending and what happened with the treaty? Winston: Well, as I said, there were several false starts. So, I went to WIPO for the first time in 2003, which is the time when I was appointed to be the chair of IFLA’s copyright committee. Of course, I was just amazed at how things worked and how they didn’t. My very first meeting that I went to was of the cultural administration group. I think you’re gonna be working with them, if I understand right. So, we’re working on some kind of instrument that would deal with cultures and I was so fascinated to see, but sitting at the table were people from various minority groups. The Sami from the North and the Maori from New Zealand were actually part of the official groups. And it was a very substantive discussion. So I was expecting it to be like that when I went to other meetings such as to the meetings of the standing committee on copyright, but it was definitely not the case. The Standing Committee on Copyright it members of federal agencies only. The United States usually has people there led always by the Patent and Trademark Office because they are the executive branch, but also generally at least one person from the US Copyright Office. But I was really kind of amazed when we first started working on what came to be the Marrakesh Treaty to find that there had been a lot of efforts in the early 1990s to have such a treaty and they finally just completely collapsed. So, this was like a second start. And you never know exactly why something works the second time around. I don’t think it was just because we all had t-shirts which we probably wore saying “stop the book famine.” But I think that really helped as a way of kind of characterizing what it would feel like to be blind, able to have access to books it was a book famine. That word famine really just captured people’s attention. Nevertheless, it did take at least six or seven years. I can’t even remember quite how long it went. At first everyone was kinda just nice about it. And then there’s the publishing industry that began to realize this might actually happen. They began to be very, very oppositional—really oppose almost every aspect and were able quite often to get other national entities to agree with them. Probably the most negative force against this treaty and the one that I believe was most susceptible to the publishers was the European Union. So this is another thing that is very unusual about the SCCR, which is that when we’re in session, it is possible for someone from Luxembourg to speak or from France in their national capacity. But really the authority speaking comes from the European Union representatives. Of course, in a way it represented  the bureaucrats who speak for that entire group. And the EU was just not willing to have any part of this until this moment that I will never forget in Marrakesh. We finally met and the negotiations were going on. But the EU was not moving. And I saw the then Director General do something that I never saw before or after which was essentially to call out the EU in the public session and basically say you are continuing the book famine. If we can’t make some progress here after we've gathered, and made so much progress and get to the finish line, it's going to be on you. And you can just feel the moment when the publishers and their representatives to the EU understood that they were getting ready to come under a very black cloud, so to speak. So it was really one of those wonderful turning moments right in the middle of that week. And then things fairly quickly came to a close, but it was at least a 20 maybe even a 25-year process. So I try to think about what I think our first Copyright Treaty for libraries was only introduced in 2005 or 2006 I think we first began to shop it around. So if you're taking a long view and compare it to what happened with the blind, where we're doing okay. We have to take solace. Sara:  So it's interesting because you are pointing out that the only folks that really have a voice at these treaty discussions are official representatives. So how are the publishers then getting their voices heard? Is this through independent meetings? Do they come to the meeting as an observer? How are they involved? Winston: Yes. Well, they're involved in exactly the same way we are. So one thing I will say about the standing committee on copyright or related rights is very open to NGOs that wanted to come. Usually the very first agenda item after adoption of the agenda is the addition of new members. And so we've never had a problem about that. So we're often actually seat them side-by-side with the publishers that are all as usual people from the licensing agencies. I'm sorry. It's been so long since I was actually there. But we're all sitting there together, representatives from all the NGOs with our label in front of us. Almost always, member states are invited to speak first, and then if there's time, then we will be invited to speak. And I will say, I think we've been treated very fairly. When I put my light on saying I want to speak, I'm almost always the first or one of the very first people who is invited to make what we call an intervention. Sara:  Okay, so. they're there talking with the EU. They're also participating in the group discussions. That makes perfect sense. So, after Marrakesh, where do you see the SCCR headed? What is the next kind of issue that's on the horizon? Winston: Well, the very biggest issue that's on the horizon and the longest there is a broadcasting treaty. So there are basically right now two major issues before the SCCR. There are a few others that are kinda crept in, like the Russians wanting to have theater stage directors rights. But the two topics that are given, roughly four out of the five days, more or less evenly divided are the treaty on broadcasting and then the treaty for libraries, archives, and museums. That one has been under discussion. It was under discussion the first time I went, and it is still under discussion. Glacial progress is made. Then one of the things I need to be clear about another oddity or feature of the SCCR is that regime change really matters. So you can be moving along very nicely and suddenly a country's regime changes. This happened to us very explicitly with Brazil. We had two very, very strong supporters from the Brazilian copyright office working with us very closely who were advocating for us, and would often introduce articles or motions that were in our favor. And one day we were there and they had this panic came across their faces. We found out the regime had changed. They had been summoned home. And the next people who came from Brazil had no interest in library. So that's a whole other reason that it takes so long to get things done because you develop relations and then those people vanish. Another problem is that people who are there usually, not for the United States, for example, who really do come from our federal agencies, but mos

Sara: Welcome to another episode of Copyright Chat. Today I have a special guest and member of the ALA Policy Core. I, too,  am a member of policy core cohort three, and so is my guest today Timothy Vollmer welcome Timothy. Tim: Thanks for having me on. Sara: And so, I'll call you Tim for short because that's what I usually call you and Tim and I had met each other previous to becoming members of the policy core through copyright circles. I know Tim works at University of California Berkeley, with Rachel Sandberg and Tim, why don't you tell us a little bit about what you do there and and your previous work history. Tim: Yeah, sure thing. well I'm the scholarly communication and copyright librarian at UC Berkeley, and we have an office that helps scholars, understand, copyright law, the publishing process. We also deal a lot with various intellectual property and information policy issues that come up in, you know, teaching and research and an academic writing. So, we intersect a lot with copyright challenges copyright concerns that researchers have probably some of the same things that you experience working at a large academic institution. But before I was here at Berkeley. I also worked for Creative Commons for several years. And I'm sure a lot of your listeners are somewhat familiar with Creative Commons. This is a nonprofit organization that provides free copyright licenses for sharing all types of creative works, and the licenses really help provide increase sharing on more open terms, then you know the default. all rights reserved. Copyright regime. And I've also worked actually with the American Library Association, a long time ago, I was a Technology Policy Analyst at the ALA Washington office. And there we did a lot of research, and also policy advocacy on technology and other legal issues that are relevant to libraries. So thinking about things like intellectual property and copyright issues. Broadband policy, and also like organizing and educating alien members on copyright issues that come up in our library work. And then as you mentioned, I've been a part of the a la policy core, and we're part of this. The third year the third cohort. Sara: Well, it sounds like you've had a variety of interactions with the library community over the years and also the copyright community so it seems like a perfect fit for your current position, and obviously we were both drawn to the ALA policy core. And I personally was really interested in doing more advocacy with the United States Copyright Office, and just getting to know how to make an impact on policy nationwide because, of course, so much of what we do as librarians, is to try to get access to information for our patrons and copyright is one of those ways right that we try to get access is, people think of it, a lot of times as a barrier, but I think of it as kind of one of those ways of means of access right through a lot of different ways sex, you know copyright exception section one await of the Copyright Act and fair use and things of that nature. But I wonder what drew you into deciding to join the policy core. Tim: Yeah, some of the same reasons for you. I think there's oftentimes like a public conception that copyright is like a bad or like a negative thing, but in my work, you know, working with the LA Creative Commons and now working in a library. I think our role is really to educate and push on our users to exercise their copyrights and then flex their copyright muscles because because oftentimes, there are like you say limitations and exceptions such as fair use, and we need and are able to take advantage of these. And it's an important thing that we can work on together with regard to the alien policy core. I've really wanted to learn how to become a better advocates around a lot of different library issues especially some of the issues that we deal with on a day to day basis, you know, working in academic libraries. So, looking into ways that we can help push for improvements and updates to copyright law. I'm looking at digitization issues. Access to research issues, open access publishing those types of things. But I also wanted to get the more sort of plugged into policy issues, and other advocacy work for different types of libraries which I don't have that much experience with. I did start out working in a public library and also worked at the Wisconsin State Law Library and those are really interesting jobs as well but I kind of wanted to know how to advocate better for for other types of libraries as well and see how we can contribute to those space spaces. Um, so as a policy core has really provided a kind of a broad overview on how to do that and it also incorporate many different types of librarians and library workers so of course you and I are working in college and research libraries, but there's a a broad spectrum of other people so we have school librarians and people who are working in public libraries. And people are working in community libraries, those types of things. So I think the policy core has really given me and this is sort of what I wanted out of it, a better understanding of not only the issues, the policy issue that those libraries sort of encounter, but how we can work together to advocate for better outcomes. Better funding better public policy outcomes for all types of libraries. Sara: That's a really great point and I often when I teach about copyright at the high school at the University of Illinois. A lot of my students are surprised when they realize just how much copyright will impact their work right as, for instance, a school librarian or a public library and I mean copyright is kind of one of those all inclusive topics and so it has really given, both of us I think an opportunity to grow our network and to kind of understand what the different areas are that different people are struggling with through the pandemic there's been a lot of funding issues, there's been a lot of broadband issues. And it's been really interesting to kind of learn what people are handling right now and and and it seems like right now there's also a lot of fights ago about freedom of information and right you know different books that are on the shelves that maybe parents don't want to see on the shelves in a children's library or a school library so there been so many different issues that we've been hearing about which has been really interesting. Tim: Yeah, you're totally right like issues around intellectual freedom around broadband access for libraries, these are ones obviously that maybe you and I don't deal with on a day to day basis but it's important to be able to advocate for them, and with them for other library workers and other libraries as well. Sara: Yeah. And so we have the opportunity. Not too long ago to go to Washington DC and to have a face to face meeting with our cohort of course our cohort began in the middle of Kovats so normally we would have done that much earlier but I thought that was one of the most useful parts of our training because we learned some really fascinating. Media techniques right and we're kind of putting the hot seat with, you know, pretend that you're doing like a video interview right now and what what is this going to look like. I found that really challenging but also really interesting and helpful in terms of training and I've had some similar training here at University of Illinois but I felt like this was even more targeted because the folks doing the training or media specialist. What did you find to be a kind of the most rewarding part of your training as part of the policy core. Tim: Yeah, um, I will say that media training was a little bit outside of my comfort zone, I guess, but I really appreciate that we were able to do it, especially in the context of understanding how to best communicate a message with the decision maker or a member of Congress, or with the media because crafting a clear, concise, usually short message about a policy topic that you're advocating for is really crucial. You know, one thing I was actually involved with last year as a part of the policy Corps was doing a virtual Hill meeting with a staffer on on library funding issue so we were advocating for an increase in a library funding. And, you know, one thing that was really interesting and important to know about in this meeting was really short, it was like a 10 minutes, like zoom meeting with a staffer and something that we talked about going into the meeting as we were as we were kind of building up. What we wanted to talk about and how we wanted to deliver it it was like the understanding that a lot of these staffers. They cover, you know, 10 issues or more. And maybe library is just one of them, or maybe they only deal with library issues in their capacity as someone who's involved in education. So, sort of understanding that we need to craft a very sort of deliberate and concise message about the policy ass, or the policy issue that we're talking about, is really important so that was one of the most interesting pieces from like the media training that I sort of took took took away from it, but also lots of other great sort of tips around how to, how to host like events, how to get your message out in a variety of different forms so obviously it's not all just meeting with legislators, it's about creating campaigns and doing social media and thinking about sort of online messaging. And I know we do a lot of that sort of in our work as well. And then, you know, kind of talking a little bit more broadly with regards to the policy core and maybe some of our issues. There are a lot of different ways that we can we can advocate, you know, one of them is talking with policymakers and entering into conversations and relationships with staffers that deal with intellectual property and library issues. But another thing that you mentioned earlier is dealing with institutions like the corporat

You 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

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 a

To read more about Controlled Digital Lending, please see this White Paper by David R. Hansen and Kyle K. Courtney available at https://controlleddigitallending.org/whitepaper

You may also wish to listen to a previous episode of Copyright Chat, where I hosted Mike Furlough as he discussed the HathiTrust Emergency Temporary Access Service https://www.library.illinois.edu/scp/podcast/mike-furlough-explains-the-hathitrust-emergency-temporary-access-service/           Hello listeners, and welcome to another episode of Copyright Chat. In keeping with the themes of previous episodes during COVID-19, I am doing a solo produced episode, with just myself, Sara Benson, discussing a current, and necessary copyright topic. So for today's episode, I actually took to Twitter to ask you, the public, what you wanted to hear about the most. And the two most pressing issues that arose were Controlled Digital Lending, and not far behind, E-Reserves in libraries in the time of COVID-19. So today, I am going to address the first issue, which came up with the most votes in my poll on Twitter: Controlled Digital Lending. Now I did not come up with the term Controlled Digital Lending. In fact, my colleagues Kyle Courtney and David Hansen wrote a white paper all about Controlled Digital Lending, which I'm linking to from this episode. And based on their understanding of it, and their explanations in the white paper and my own understanding of it, I'm going to explain it to you. And of course, I take no credit for their white paper, of course, and any misunderstanding that I tell you in this podcast episode are my own, but I think I have a pretty good grasp on what they're arguing and what libraries are operating under when they are engaging in Controlled Digital Lending in the way that, for instance, the Emergency Access Library from HathiTrust is engaging in it. And so, without further ado, let me dive into Controlled Digital Lending from my own understanding. So first of all, under the copyright act, we have a right of first sale under section 109 of the act. So that's Volume 17 of United States Code, Section 109. And under the right of first sale, anyone can sell, give away, do whatever they wish, with a book or other item that they purchase in physical format from a publisher or an author. And so when I publish a book, let's say I'm publishing a current book from the American Library Association, when the ALA sells my book to a reader, the reader then owns that particular copy of the book. And so the reader can lend that book out to friends, the reader could sell that book on Amazon, could put it on their front yard in a little free library, they could sell it in a garage sale, etcetera, etcetera. They own that particular copy of the book, and they have extinguished ownership right of the publisher upon the sale of the book. So the publisher can no longer garner any kind of compensation from lending of the book or the sale of the book, right? So when you sell in your garage sale, you don't need to offer any remuneration to the author or the publisher at that point. And so, that is what most library lending is occurring under, section 109 of the copyright act. When we purchase a physical book, we lend it out as many times as we would like, and we don't have to pay any fees for that lending. And that's the same type of thing that an individual can do in their home library, or little free library, for instance, or the public library, for that matter. Now important aside is that this has to be from a work that is in print or in a physical format, such as a CD or a DVD. And another aside, or important fact, it does not allow you to make a copy of the work. It allows you to sell that particular work. And so, you don't own the copyright, right, you can't do all the things that a copyright owner can do, such as make reproductions, but you have the right to that specific piece of property, that specific book, that specific CD-ROM, that specific painting, or something of that sort. And so, that is a lot of what we do, like I said at public libraries and academic libraries, we lend out the work. And the reason, I think that we have the right of first sale and it's so strong is that we understand that a physical work, over time, will deteriorate. Right, so, that physical work doesn't last forever. Of course we, of course we work very hard in preservation and libraries to preserve the work as long as we can, and we have rights under section 108 of the copyright act that give us rights to make reproductions or copies for the purpose of preservation, which is a whole other story, but we try to preserve the physical work, right, we scotch tape the cover on if we need to, we will help re-bind it if we have to, with the cover, with the binding becomes lose, etcetera. But at some point that physical, those physical page of the book will deteriorate, and so it is not, it cannot be lent indeterminably, forever, right, for an indeterminate amount of time. So where the right for first sale, the right of fair use begins, right? And the right of fair use is an umbrella, right, that works in operation with our other rights in the library, such as the section 108 rights of reproduction for preservation and inter-library loan, and things like that. Section 108 is, can be independently used, but it also can be one of things that begins when another right ends. So the theory of Controlled Digital Lending says that, if I, a librarian in a particular library have one copy of a physical book, and I do not lend out that physical book, but I lend out a digital reproduction of it that is not further replicable, so it has digital rights management on it, and it can only be viewed by one verified library card holder at a time, then I'm essentially just exercising an extension of that right for first sale, right, I bought this one book, I can lend out this one book as many times as I would like. Now the right of first sale has never been extended in a court or by the Congress to digital works, right, because again, a digital work could be reproduced over and over and over and not necessarily ever deteriorate, which might somehow hamper the right of the copyright owner, right, because they have recovered for one sale, but if you keep that one book forever and lend it out forever and ever, then they never will get those other sales. So that would, at some point end, right, the right of first sale, but then fair use begins. And that's where Controlled Digital Lending kind of falls, in this gray area in-between section 109 and section 107, which is fair use, saying that, "Hey, we are lending this book for education and research purposes, we are not making any money off of the lending, we're not replacing the market value for the work, because we did purchase the work, and we would have otherwise been lending out to our users." And in particular, especially during COVID-19, when we are in a public health crisis, and our public, our patrons, cannot come into the library physically to see the physical, we are going to let them view the book on an emergency basis, digitally. And so that's where first sale and fair use meet, and in particular during COVID-19, I think this is a really great argument, because we are trying to protect the public health by not allowing the patrons to borrow the books, and there are risks to borrowing physical books. A lot of libraries are quarantining books after they are returned because they've been handled by the patron and germs could spread in that matter, and so they are quarantining the books for up to a week, and so, you have a lag time, and at the same time, really crucial research is going on, right. We are trying very hard, especially at the University of Illinois, which I'm sure you've seen our prolific testing that we've been engaging in. We're trying very hard to come up with a vaccine for COVID-19, we're trying to come up with effective treatments for COVID-19, more effective and quicker testing and more widespread testing. And all of these things are so important for public health and education and research, and if people can't get to these important resources, these books that are held in our library, they potentially cannot engage in this life saving resource, this life saving research. And so, the fair use argument is fairly strong right now. I think the fair use argument, in terms of Controlled Digital Lending, can vary, right, the strength of it can vary, right. How, what type of book are you lending this way? Right, is it Harry Potter, or is it, you know, a medical book that's being used to fight COVID-19? These are very different resources. And then are you limiting the lending to one-to-one ratio, right, which is the idea that we have one book in our possession in the library, so we are lending one copy to one patron at a time. And, if you, say, have five copies of the book, you could potentially simultaneously lend it to five users. And then of course taking those measures to make sure that the book cannot then be further distributed from that patron to other people, right, making sure that the book is controlled in terms of digital rights management, so that, when that patron checks out the book, they are unable to further lend it to other people. And so, I think, like I said, that there is a very strong fair use argument, especially during COVID-19 for things like the HathiTrust Emergency Lending, emergency access, and I know other libraries are also engaging in their own version of this with their own locally sourced digital copies that have Controlled Digital Lending on them, such as lending to one patron at a time with digital locks and things like that. An