Post written by: Brandon Butler, SPN’s Law & Policy Advisor
A Law and Policy Bonanza for SPN in February and March 2020
It’s been an extremely busy couple of months in the law and policy realm for SPN. We have multiple Supreme Court case updates, comments filed on the next Register of Copyrights, and much, much more. Here’s the bullet-point version:
- The Supreme Court published its opinion in Allen v. Cooper, the case about pirates and state sovereign immunity, and we won!
- In the other case we’re watching, Oracle v. Google, a bunch of amicus briefs were filed on Oracle’s side, and the Court has postponed oral argument due to the COVID outbreak.
- SPN submitted comments in the Library of Congress’s inquiry about the attributes and priorities to consider in selecting the next Register of Copyrights.
- The Cyberlaw Clinic students will begin preparing for the next cycle of the triennial DMCA rulemaking this summer.
- The Law and Policy Working Group began gathering information about software license documentation available in SPN member collections that they hope will help design a research project for clinic students.
- Allies and friends in the European Union and New Zealand have reached out for guidance as they attempt to influence copyright reform processes in those regimes.
If you’ll bear with me, below you’ll find more detailed briefings on each of these items.
Supreme Court I: Victory in Allen v. Cooper
The Supreme Court’s opinion in Allen v. Cooper, published March 23, 2020, was a strong-ish vindication of state sovereign immunity from lawsuits over copyright infringement. (Stay tuned for the “ish.”) You can read more about the case in our first big blog post about it, but the short version is that states (and state entities, including universities, libraries, and museums) are immune from lawsuits over violation of federal law (thanks to the 11th Amendment) unless the US Congress properly waives that immunity. Congress passed a sweeping waiver of immunity in 1990, and this case is about whether that law was legitimate. SPN joined an amicus brief with several library groups arguing that it was not, and the Supreme Court agreed.
Writing for the majority, Justice Kagan finds that the Copyright Remedy Clarification Act of 1990, which made states liable for any infringement just like private parties, exceeded congress’ power because it was not based on evidence of widespread, serious violation of constitutional rights, nor was the waiver tailored in any way to address what little evidence of harm there was at the time the law was passed. Accordingly, the court concludes that states retain their immunity.
What all of this means for state institutions is that, for now, copyright holders cannot file infringement suits against them seeking money damages under the Copyright Act. However, there are at least two good reasons for states not to hoist the Jolly Roger flag and fire up the infringement machines. First, it is still possible to seek a court order to stop infringing activity, using a mechanism from a landmark case called ex parte Young. For larger projects, a court order to shut down would entail the loss of a substantial investment. For SPN members, for example, it is crucial that projects like EaaSI be carefully designed to be consistent with copyright law, because substantial investment would be lost if a court ordered the project to end. (Plus, EaaSI is housed at Yale, which is not a state institution—sorry, y’all!)
The second reason for states to continue to obey copyright law is that the Court’s opinion in Allen included a roadmap for Congress to follow to successfully waive immunity in a future law. To do so, Justice Kagan, argued, Congress will need to gather evidence of widespread, willful violation of copyright by states. Based on that evidence, Congress could waive sovereign immunity and subject states to the full range of (draconian!) remedies available against non-state actors. So, states can take some comfort that the stakes are reasonable if they make a mistake in navigating copyright law, but they should also recognize that Congress is standing ready to raise those stakes as soon as copyright holders can provide evidence of widespread bad action by the states.
Supreme Court II: the Usual Suspects Turn Up in Oracle v. Google; Argument Postponed
The SPN and Library Orgs brief in Oracle v. Google was kind of a preemptive strike: it wasn’t quite a response to anything we had seen in the case so far, but rather a pre-buttal (if you will) of arguments I strongly suspected we would hear from copyright industry organizations in their amicus briefs. Because this is the first Supreme Court case to squarely address fair use since 1994, I feared the big content groups (RIAA, MPA, etc.), together with groups who claim to represent authors and creators, would take this opportunity to ask for limits on the strong fair use rights the courts have enforced over the last three decades. Sure enough, they came out of the woodwork in support of Oracle, with most of their support coming from copyright industries unrelated to software, in stark contrast to Google, who drew substantial support from the software and technology industries, as well as individual computer scientists. Jonathan Band has a handy summary of the briefs here. Suffice to say, we should be glad we intervened!
Oral arguments for the case were scheduled for March 24, but have been postponed due to the COVID-19 crisis. It’s not clear when they will be rescheduled, but we’ll keep you posted.
SPN Shares Priorities for the next Register of Copyrights
In March, SPN provided comments to the Librarian of Congress, who had sought advice from stakeholders as she looks to appoint the next Register of Copyrights. Our full comments are available here. (Note that we had to enter them into a form, with strict word limits, hence the stilted format). The Copyright Office sits in the Library of Congress and plays a crucial role in building the Library’s collection as well as maintaining the record of copyright registrations and other records about ownership. The Office also advises congress on copyright law and policy issues, writing white papers and reports that can be influential in the policymaking process. The Register of Copyrights is the head of the Copyright Office, and directs the Office’s activities. The last Register, Karyn Temple, left late last year to become global general counsel at the Motion Picture Association.
In our comments, we asked the Librarian to appoint a Register who is familiar with the full diversity of works and activities affected by copyrights, beyond the handful of industries that have dominated the Copyright Office’s docket in the past. For decades, the Register and many key staff positions in the Office have routinely been filled from the ranks of the book publishing, film, and music industries, and (even more frequently) the trade associations and law firms that represent them in Washington. It is time to appoint someone whose experience would better prepare them to look out for the public interest, and to recognize the difficulties that copyright creates for cultural heritage institutions in a digital, networked era.
We also pointed to the importance of the Office’s power to demand deposit of new works in an era where more and more culture lives in the cloud and is never available for libraries to collect and preserve for the long term. We suggested that the new Register prioritize the creation of new rules and supporting infrastructure so that digital works (especially software) can be properly collected and preserved, both by the Library and by other cultural heritage institutions.
Your Help Needed Soon: DMCA Rulemaking and License Documentation
March also saw the spin-up of two new SPN law and policy activities. First, we had our kick-off chat with Kendra Albert at the Harvard Cyberlaw Clinic and plotted out the next cycle of activity for the DMCA anti-circumvention triennial rulemaking. The Copyright Office should begin seeking our input over the summer and early fall, so the Clinic will be preparing to request expanded rules to enable software and video game preservation. The main points we hope to modify are the current rule’s limitation of access to the physical premises of the preserving institution (a limitation whose potential negative effects have become much more easily understood in recent weeks) and the requirement that the preserved copy be “lawfully made,” a concept that may be difficult for non-lawyers to apply.
The Law and Policy Working Group is exploring another potential clinic project, this one focused on software licensing practices. We are looking for a well-defined collection of software license documentation that we could further curate (if need be) and share with a law clinic student team, with the goal being an analysis of the terms of the licenses of a certain era, genre, or other category of software. The Working Group is in the very earliest stages of thinking through this project, but we’ve already received extensive offers of help and even some pretty substantial metadata documenting collections we could use.
Copyright Review and Revision Worldwide, with Implications for SPN
Over the last few weeks, SPN staff have fielded inquiries from friends and allies around the world who are engaged in various forms of copyright reform and revision efforts. Some of these efforts are underway in earnest, with looming deadlines and significant impending changes. The European Union has passed a new Directive that must now be implemented by member states, including several changes that could be helpful for software preservation. New Zealand is engaged in a multi-year copyright review process, as well, that could yield both helpful and harmful provisions for digital preservation. We hope to provide these groups with some help in the form of documentation of the advantages of flexible fair use rights to US institutions (for those who are in a position to advocate for such provisions), as well as a sense of what’s needed to smooth the way for cross-border collaboration on software preservation.