State Sovereign Immunity Study Roundtable: Evidence of Infringement - Part 1 ^B00:00:10 >> Shira Perlmutter: Good morning, everyone. On behalf of the Copyright Office, I want to welcome all of you to this roundtable for our policy study on State Sovereign Immunity. Today's event is a first for the Office. These are the first public roundtables we've conducted entirely remotely. I'm grateful to the Copyright Office staff and in particular the Office of General Counsel and the Office of Public Information and Education, for working to ensure a smooth transition to this online format, and for making this event accessible to as many members of the public as possible. I'd also like to thank our panelists in advance for their contributions. As with all Copyright Office studies, or analysis and recommendations depend on the strength of the record presented to us, and we appreciate your willingness to provide the benefit of your expertise. The issue of state sovereign immunity to infringement suits has long been a concern for the Copyright Office. In 1988, at the request of Congress, Register Ralph Oman issued a report summarizing comments on this topic and proposing legislative changes. The Office's findings and recommendations provided the basis for the Copyright Remedy Clarification Act of 1990. Later, Register Marybeth Peters testified to Congress regarding proposed legislation that sought to avoid the constitutional issue by encouraging voluntary waivers of immunity by states. She noted that the ability of copyright owners to protect their property and to obtain complete relief when the rights are violated is central to the balance of interests in the Copyright Act. The current study comes at the request of Senators Tillis and Leahy following the Supreme Court's recent decision in Allen v. Cooper, striking down the Copyright Remedy Clarification Act. Their requests stressed the importance of the legislative record to an assessment of whether there is a sufficient basis for abrogating state sovereign immunity. Today's discussion is therefore critical to the offices and ultimately to Congress' consideration. We look forward to an illuminating discussion. Thank you again for your participation. And let me now turn the proceedings back over to Regan. ^M00:02:35 ^M00:02:38 >> Regan Smith: Thank you so much, Shira, and thank you for those remarks. We are going to begin the roundtable. And as Shira said, my name is Megan Smith, General Counsel of the Copyright Office. Before we start with the first panel, I will go over a few logistical items to make sure we're getting this correct. So I think everyone who is on panel one can turn on the videos and maybe stay muted until we commence. And so the roundtable sessions will be moderated by the Copyright Office attorneys here on the call. We will pose questions and call on panelists to respond. And we'll do our best to give everyone you know the opportunity to chime in. You can use the raise-hand button on Zoom or you can kind of raise your hand if you need to signal. But if you're not speaking, please mute your audio to minimize any extraneous noise. Given the number of panelists and topics that we hope to cover, we are trying to ask responders to limit responses to no more than two minutes. We apologize in advance that if it's going over, we may need to cut you off, we may even need to mute. And we're going to try not to do that. But we appreciate your understanding of our time constraints, our need to hear from everyone, and you know the virtual format we're all adjusting to. So if you can try to limit your comments to this specific question posed, there will be a few opportunities for everyone to speak, we envision. Secondly, we have five scheduled sessions. Today is the first one is scheduled to stop at 11:30, at which time we'll have a short break. They can be accessed by the same Zoom link we are now using throughout the day. I believe some of, I'm not sure, but perhaps certain panelists maybe you know, accessing one link where you can turn your video on for a panel that you're not on, just if you don't do that, that will help just turn your video on when it is the session you're scheduled for. Our final session of the day is an open mic session in which members of the public are able to provide additional comments for the benefit of our administrative record. If you are interested in participating, you may sign up at a Survey Monkey link provided in the chat box no later by 3pm Eastern time. If someone wanted to give me a nod that we have the Survey Monkey link up there yet. Yes, I see your nod, okay. So you should be seeing that. And if you are watching these roundtables, beginning at 5:15, Copyright Office staff will call on and unmute those who have signed up to participate, time permitting. Comment should be about three minutes, anything related to our study. And, but any comments, you know, can be on any topics noted throughout the day. And finally, today's event is being recorded. That video will be posted on the Copyright Office website YouTube channel eventually. We also have a court reporter transcribing the proceedings. As you, you may know, if you've participated in sort of the old-school, physical format of these roundtables, and that transcript, too, will be posted on the Copyright Office website. So now I'm going to start the first panel. This session concerns evidence of actual or threatened infringement by state actors. I will provide a little bit of a roadmap so folks understand or they may want to chime in because I do think that virtual media makes it a little harder to anticipate. So I want to make sure we can maximize on limited time. So we are hoping to touch on a few key areas in this order, mainly first sort of qualitative considerations in evaluating evidence of infringement and broader trends. Secondly, individual examples. Third, the nature of alleged infringement at issue, that is whether reckless or intentional conduct is implicated. How can we tell whether exceptions and limitations may apply? And finally, whether state immunity has any effect upon sales and licensing practices. So before we begin, I'm going to ask my Copyright Office colleagues who are joining us today to introduce themselves and actually, all of the Copyright Office colleagues, if there are some who are I don't see on video because you will be participating. Other panelists can do, just pop up now to say hello. So starting with Mr. Amer? >> Kevin Amer: Good morning. Kevin Amer, Deputy General Counsel. >> Jordana Rubel: Jordana Rubel, Assistant General Counsel. >> Jalyce Mangum: Jalyce Mangum, Attorney Advisor. >> Mark Gray: Mark Gray, also Attorney Advisor >> Melinda Kern: Melinda Kern, Ringer Fellow. >> Regan Smith: Thank you. Thank you all and now, I think I will call on participants, so if you can provide your name and your affiliation. We will sort of hold off on opening statements, but you will have the opportunity to [inaudible] your broad interest in the first question posed to you. If we could please start with Mr. Allen? >> Frederick Allen: Good morning. Thanks for having me here. I'm Frederick Allen from Nautilus Productions and I'm the Allen in Allen v. Cooper. >> Regan Smith: Thank you. Miss Benson? ^M00:07:34 [ Inaudible ] ^M00:07:38 >> Sara Benson: Oh, good morning. My name is Sara Benson. I am the Copyright Librarian at the University of Illinois Libraries. >> Regan Smith: Thank you, Miss Johnson? >> Andrea Johnson: My name is Andrea Johnson. I'm with C MATH is EASY in Corpus Christi, Texas. ^M00:07:54 ^M00:07:57 >> Regan Smith: Thank you, Mr. Linder? >> Craig Linder: Good morning. My name's Craig Linder. I'm the Associate General Counsel at Dow Jones and Company to the publisher of The Wall Street Journal, Barron's, MarketWatch, and other publications. >> Regan Smith: Mr. Madigan? >> Kevin Madigan: Hey, everyone. I'm Kevin Madigan. I'm VP of Legal Policy and Copyright Counsel at the Copyright Alliance. >> Regan Smith: Mr. Munter? >> Johannes Munter: Hi, all. I'm Johannes Munter. I am a Consultant with the News Media Alliance. >> Regan Smith: Thank you, and Ms. Sapiandante. I hope I pronounced that right. ^M00:08:37 ^M00:08:41 I think you're muted. ^M00:08:42 ^M00:08:46 >> Maria Sapiandante: Am I unmuted? Hi, I'm Maria Sapiandante. I'm an Attorney [inaudible] Intellectual Property for [inaudible]. >> Regan Smith: Thank you, Mr. Sedlik? >> Jeff Sedlik: I'm Jeff Sedlik. I am a Professor at the Art Center College of Design and I am president and CEO of the Plus Coalition. >> Regan Smith: Thank you, Mr. Smith? >> Kevin Smith: Hi, thank you for having me here today. My name is Kevin Smith. I'm the Dean of Libraries and a Courtesy Professor of Law, that is I teach copyright law at the University of Kansas Law School. >> Regan Smith: Thank you. And finally, just because this is alphabetically, Mr. Thro? >> William Thro: Hi, my name is Bill Thro. I'm the General Counsel at the University of Kentucky. I'm here on behalf of not only the university, but the Association of Public and Land-grant Universities, as well as the American Association of Universities. >> Regan Smith: Thank you all for being here. We are very excited to hear what you have to share with the Office today. And you know, let's get started. I think if the first topic is to start on broader issues, I would like to direct the first question to the Copyright Alliance, who submitted a survey in response to this study. So I'm wondering, Mr. Madigan, could you please describe the methodology towards the survey and provide a short summary of the key conclusions that you have drawn regarding the prevalence of infringements by state? >> Kevin Madigan: Sure, absolutely. So, in response to the Copyright Office's NOI back in June, the Copyright Alliance launched a public survey, which included many of the same questions listed in the NOI. We solicited feedback from copyright owners on their experience with infringement by state entities. But we designed the survey in a way that we believed would solicit the most sort of accurate responses from creators and copyright owners who may not have a legal background. We also conducted interviews with a number of Copyright Alliance members and individual creators who have experienced infringement by state entities and have either been unable or deterred from exercising their rights due to state sovereign immunity. And overall, we compiled what we believe is compelling evidence, showing that the remedies against infringement are inadequate or nonexistent, and that state copyright infringement is a growing trend that is increasingly threatening the goals of the copyright system. And just to talk a little bit more specifically, I guess, we had our survey open for a few weeks, we had about 600, and I think it was 657 total responses. Well over 100 of those responses said that they had encountered infringement by a state entity. But I think it's important to note that of those respondents, over 50% said that they had experienced multiple instances of infringement. So we're not just talking about 115 total. Some of the respondents said things like there were multiple instances, they stopped counting, there are dozens, countless, several. And I would also note that over 60% of the, of the 657, total respondents to the survey said that they did not have time or resources to monitor for infringement. And so we feel like the numbers of people who found their work to be infringed by state entities would be a lot higher if there was more monitoring. And I would also note that the numbers don't account for matters settled confidentially out of court or situations where the owners didn't pursue enforcement due to the perceived sort of futility of remedies available when suing states. ^M00:12:49 You know, I think it's also important to talk about the, our responses to our question about the time that the infringement was discovered, because there was a clear trend of increasing infringements starting in the mid to late '90s. And then increasing yearly through the 2000s and 2010s, with the most instances, instances occurring in 2019. And I would just say that I think this steady sort of rise over the last 20 years corresponds, you know, with the Florida Prepaid and Chavez cases that challenged the validity, validity of the CRCA and may have resulted in states taking sort of a more liberal or liberal approach to unauthorized use of copyright protected works. I can go on about the survey. I know I'm probably getting to my two minutes here. >> Regan Smith: Well, maybe I can ask a couple of questions. I think the Office has some questions about this survey design, and then I would try to fit the message, who would be called the next one? I think we'll turn to Miss Benson. But I do want to make sure we can ask these questions first to you, Mr. Madigan. So one question was about the longevity. So your, it seems to me the trend analysis you just spoke to is not necessarily reflected in the survey. The survey did not, because the survey asked questions about some period of time for infringement, or is that you're separately contributing that comment from your other studies? >> Kevin Madigan: No, no, our survey, one of our questions was what year was the infringement detected? And so we have in our initial comments, we have a paragraph or so talking about the results to that and we created a graph that shows sort of a steady few instances to the 1990s. And then starting in the late '90s and early 2000s, that's when they start to go up and they increase every year up until when we stopped. The last year was 2019. >> Regan Smith: Okay, could you speak a little bit about to the survey logistics? So what was the response rate, or where was it publicized? What is the completion rate, if you know? >> Regan Smith: Well, we had, like, I think I mentioned 657 total respondents. And we did, we created the survey through Survey Monkey. We again, we drew the questions almost entirely from the Copyright Office NOI. There were certain questions we didn't include that were more directed to state policies that we just didn't feel that wasn't really the information that we were trying to gather. You know, these were, these were questions directed more towards individual creators and copyright owners. So for the most part, they were drawn directly from the NOI. But we didn't include in our initial comments all of our list of questions, but we're happy to make those available to the public. ^M00:15:51 ^M00:15:55 >> Regan Smith: I think if you, if you were willing to share the list of questions to the Office that might be helpful in analyzing that. And I also wonder, would you be willing to submit the individual survey? I was thinking last night the call to response cards, I'm sure that's not the term they use anymore, but the individual actual responses? >> Kevin Madigan: Yeah, we'd be happy to do that. And one of the reasons we didn't attach it, it's just because the, I mean, for some of the questions that we asked to explain the instances of infringement, you know, there's 60, you know, page long responses. So it is quite long, but we're happy, we're absolutely happy to share that with everyone. >> Regan Smith: Yes, I think if you're willing to, that may be, that may be helpful. I know that, you know, the court noted it is important to see if instances could be corroborated. So, you know, we will be welcome to set that into the record. Could you again, just to setup? We're [inaudible] around you a little more than most, but can you opine in your opinion from Copyright Alliance whether the respondents are representative sample of relevant copyright owner [inaudible] to the Office or Congress go about evaluating that? >> Kevin Madigan: Well, I think they're, they're certainly representative of the individual creator members that we represent. Most of the people who responded to the survey were small businesses or individual creators. So I would say these aren't really representative of some of the larger organizations that are members of Copyright Alliance. But I think those organizations were represented through their own comments, and are also represented on this and other panels throughout the day. >> Regan Smith: Okay. Thank you. And so Miss Benson, your comment, did focus, you know, address your [inaudible] address the survey. Would you like to share your thoughts on the survey and perhaps the overall approach you would suggest the Office or Congress takes towards analyzing evidence [inaudible]? >> Sara Benson: Yes, thanks for the opportunity to comment on the survey. One of my concerns about the survey is, of course, and you've just mentioned this, that the data was not shared openly. I, too, create and conduct surveys, and I'm very aware of proper methodology, in terms of information science, and just social science in general. And one of my concerns is the small number of respondents. I understand that 657 total respondents sounds like a large number. But if you're talking about all of the American public who owns copyright, that's a very small number, including myself. I have many copyrighted books, articles, et cetera, educational materials, and I never received the survey. So I think, unfortunately, I don't feel like it's a representative sample. And I don't feel that it's statistically significant. And I feel like that is an important factor because we are looking, and when broaching sovereign immunity, we need to see evidence of widespread infringement. I don't think that this survey does much to show that. Some of my other concerns about the survey include whether fair use was considered at all in the survey. I understand that sometimes when people have their work being used by someone else, they immediately say that it's infringement. But we as copyright experts, and I'm sure I'm talking to people who are all experts, so I'm not trying to, to explain it to people. But I think there are a lot of exceptions that apply. Of course, you know, at university libraries and educational institutions, we have quite a few exceptions that apply to copyright such as Section 108, Section 110, Section 107. And I think unfortunately, when things are used for educational purposes, sometimes others don't understand that. And I'm not saying that fair use applies to everything that's educational. That is, please don't take this comment as overstating the case. But I do think it should be included in some sort of descriptor in the survey to make clear that there are some exceptions and that, and I know that there's a Ninth Circuit case on point where when sending a DMCA takedown notice we as, as users and creators should also consider whether the use was a fair use. And I think in this survey, we should take that into account as well. And we should use a critical eye when interpreting the evidence. So the evidence that was submitted, I don't see it as evidence yet because I haven't seen the data. So when I conduct qualitative research and quantitative research, I try to make my data as open as possible and put it into our data repository so that I can see and others can see whether the results are replicable, because to me, good science requires replicability. So I think I'll stop there so others can comment. >> Regan Smith: Okay, I actually may want to add two follow-up question, to you. And I do think it's helpful that Mr. Madigan has signaled that they may share the data. So that to the, to the two small questions. First, I mean, you've noted and essentially, we're all copyright owners, we all are creators, I don't know if that necessarily means the scope of the potential respondents needs to be the entire American public. Right? Because as Mr. Madigan mentioned, you know, his numbers, he's more focused on perhaps people who are trying to, to license or make economic use of their copyrights. And there's certainly a lot in there. So do you have an opinion as to what would be the proper frame that we would look at to determine potential responses? If we think, you know, maybe something a little shy of everyone is the subset? >> Sara Benson: Well, I do think that I understand that you're saying this subset is people who are trying to make economic use of their works. But that also is a large group of people, because I also make economic use of my works as an educator, and I do a lot of independent consulting, and I have a book published through ERCL, another book coming out through ALA. So, you know, we at universities have a lot of creators, right? We create scholarship, we create books, and so I don't believe that that population was included in this survey of folks who are actually creating for educational purposes as well. So I think the survey has to at least include my representatives, right, who are scholars and researchers, and who also create economic value. So I'm not sure I can define the exact scope of it. But I do know that I feel it's missing a key element. >> Kevin Madigan: Can I respond to that? >> Regan Smith: Okay, thank you. Yes, I think I would like to hear from you. The copyright, I was not trying to throw that out of the definition. We're trying to probe to figure out what should be the lens we're looking at to determine whether there's widespread infringement. So Mr. Madigan, if you could respond to that, including maybe how you publicized the survey as well? >> Kevin Madigan: Yeah. So when you dive more into the survey, you'll certainly see plenty of responses from people who create educational materials. So they're, they're certainly represented in this survey. And if I could just go back to the fair use plan for a minute? You know, obviously, limitations and exceptions are an important consideration. But they're not entirely relevant to this study [inaudible]. I say that because ultimately, whether we abrogate or just say sovereign immunity would have no effect on states' entities' ability to defend itself by showing fair use or invoking any other limitation and exception. And I believe that's why you didn't see any questions in the Copyright Office [inaudible] directed to fair use. And in fact, if the unauthorized uses are fair, as many of the university commentators have said, then sovereign immunity is really irrelevant. And these types of uses can continue whether or not immunity is abrogated. And I would also say that the highest number of respondents for our survey that said they found infringements were photographers, and the organizations and individuals, creators who submitted comments attest to the fact that the unauthorized uses that they encountered were really wholesale reproductions of their works for commercial purposes that are therefore unlikely to be fair uses. And then if I could just say one more thing about the fair use as it relates to sovereign immunity is that the doctrine of state sovereign immunity actually prevents fair use analyses, and it hinders the development of the fair use doctrine. You know, there may be state entity use that raise novel and important questions about the boundaries of fair use questions that may actually benefit users of copyrighted works. But when we sweep those questions aside, in the name of sovereign immunity, you know, it actually I think does a disservice to all copyright stakeholders by sort of holding back the development of our understanding of fair use. ^M00:25:20 ^M00:25:24 >> Regan Smith: Thank you, when one final just [inaudible] question of how is the survey publicized? >> Kevin Madigan: How is it publicized? Oh, I mean, we can share it with you all today, if you'd want. It's not public now. >> Regan Smith: No, but I mean, did it? Was it on Twitter or how did you try to gather responses? >> Kevin Madigan: Oh, right. Yeah. So we sent it to our you know, we blasted it out to our full membership, we tweeted about it, send it out in emails through all sorts of social media platforms. >> Regan Smith: Okay, thank you. So I think that the next quarter, just so people can get ready is Mr. Thro, Mr. Sedlik. So, Mr. Thro, I know you have a lot of experience on these issues as well. Could you speak to the general approach you think the Office or Congress should take in evaluating this question as well as your experience and any broad patterns in [inaudible]? >> William Thro: I think first and foremost, as the Copyright Office undertakes this study, it's important to distinguish between an infringement and a constitutional violation. As Miss Benson said, not all alleged infringement are even infringements. But even if there is an infringement, that doesn't necessarily mean it's a constitutional violation. As the I think the court has made clear all of its sovereign immunity jurisprudence, Congress doesn't get to pick what is a constitutional violation, the court does. And in the context of copyright, that would mean a deprivation of property without due process. Now, what does that mean? Well, for one thing, it means that negligent copyright infringement is not going to count as a constitutional violation. It's going to have to be something that's really close to a taking. It also means that there is a question as to whether there is an adequate remedy at state law. If your state allows you to recover for a regulatory taking, it is possible that that state would also allow you to recover for a regulatory taking that results from the state's policy that deprives you of your copyright. So I think you have to really narrow the definition of what you are looking at. Infringements don't matter, constitutional violations do. >> Kevin Amer: May I just give a quick follow up on that? So I mean, I and others can weigh in, too. I mean, I think the question for us is, how do we, as the Copyright Office, make that assessment? And I, I, you know, I hear one of the concerns about survey evidence is the fact that, you know, there is a, it's difficult to know, to what extent the claims were meritorious, you know, or to what extent the state may have had a fair use claim or whether, as you say, you know, that the infringement was negligent versus intentional. Do you have sort of, you know, thoughts about how we can, you know, what sort of evidence would be most useful for us in doing the study and sort of making that assessment as to how prevalent these sorts of infringements are? >> William Thro: Well, I think it is in terms of assessing a constitutional violation, it's important to look at other areas of the law. And generally, if a governmental entity isn't going to be found to have violated the Constitution, then the governmental entity has adopted a policy that actually results in a constitutional violation. If a university, for example, said that African Americans could not attend, that would clearly be a constitutional violation. So if a university had a policy that we will always violate copyright, and never pay any attention to it, that may be a policy. Similarly, if we took somebody's book and said, "Hey, this is a really great book, we can make a lot of money off of it." And we took copies of the book and then produced our own copies of the book and sold it without any royalties to the author, that would probably amount to taking, but the fact that one of the 15,000 employees at the University of Kentucky inadvertently violates someone's copyright or even intentionally violates their copyright does not necessarily mean that the University of Kentucky has committed a constitutional violation. >> Regan Smith: Can I ask a question? I think you have a wealth of experience in public institutions as well, as you know, the state of Virginia, certainly. Do you have any sense as to whether there is a distinction in policies adopted by public institutions compared to you know, private colleges or universities? I don't know if you have. I would be interested to hear your thoughts. >> William Thro: Yeah. And this is purely anecdotal. It is not, you know, based upon any survey or anything like that. I think first and foremost, it's important to remember as Miss Benson said, that universities are creators of copyright, and various other intellectual property and all of that. We want our employees to do that. And we want to take advantage of that. So we're not going to do anything intentionally to undermine that from happening. I think the biggest probably use of the states for sovereign immunity, is if we get a suit that is totally trivial, and we get a number of those in all kinds of spheres, because people perceive that a state university doesn't like bad publicity, and a state university has a lot of money. You know, we'll use sovereign immunity to get rid of the nuisance suit as quickly as possible. But, you know, overall, I think we are doing everything we can to support not only copyright, but intellectual property. ^M00:32:02 ^M00:32:08 >> Kevin Smith: May I comment? >> Regan Smith: Sure. >> Kevin Smith: Thank you. Thank you very much, because I am a university administrator and a librarian, and I've spent the last 15 years as a copyright advisor in both a public and a private university. That is, before I worked for the University of Kansas, I worked for Duke University. So I can speak directly to are there differences? The answer is no. I've worked on developing copyright policies for both of those universities, as well as consulting with a host of universities on the development of copyright policies. The one conversation I have never heard is, "We don't have to worry about this because of sovereign immunity." I have been involved in multiple developments of policy at both private and public universities, and across the board. Those are careful processes that try to observe the legitimate rights of creators for the, for the reason that Miss Benson stated. We have a campus full of creators that try to make responsible use of the exceptions, including fair use. But I have never, ever heard a university adopt a policy or a practice simply because they believe they were insulated from lawsuit by sovereign immunity. >> Regan Smith: Thank you, it's helpful to hear your experiences. I'm wondering, to make sure we're sort of zigzagging between perspectives. Could we hear from Mr. Sedlik? Because I think as Mr. Madigan noted, a lot of the responses the Copyright Alliance received were from visual artists and you have represented their interests in many associations. >> Jeff Sedlik: Sure, well, in addition, I am a professional photographer, but I'm also, I also work in academia. I'm a 25-year professor at the Art Center College of Design. And first of all, the individual creators and their trade associations hold a deep respect for the universities and the libraries and research institutions and have no complaints as to legitimate fair use or usage under 108, et cetera. They understand the vital role that these institutions and the people who work with them and for them or attend those institutions play in, in society. But at the same time, in my in, in my role as a mentor to my fellow photographers, through my trade association affiliations, I get photographers and illustrators coming to me requesting advice. They don't know where to turn, their works have been infringed and sometimes and increasingly so, this is by state entities. I would agree with the comments thus far that the people who work in the museums and the libraries are not going out and purposefully infringing. But at the same time, even if you look in the comments that the Copyright Office received, you will see letters from institutions saying, "Yeah, we used it, but you know, we have immunity." And they're not relying on fair use, they're relying on immunity and those responses. These are letters from institutions, from libraries, et cetera, and from colleges. So I would advise the Copyright Office that you need to consider the universe of discovered infringements, because creators discover only a very small percentage of the infringement of their works. They're out creating, they don't have the time to, you know, scour the universe for all the infringements of their work. And they typically happen upon them, or they're advised that there is an infringement, and then they have to address it. And so those are the only people that I hear from. I don't hear from the people who didn't discover the infringement by state entities, I hear from the people who did. So we have to be careful about when we're talking about numbers. ^M00:36:11 In addition, you know, I'm an educator who creates, and many of those on this panel and who will be participating today are educators who creates, but there's a difference between educators who create and rely on the, their employment income as their, to feed their families versus creators who rely principally and only on their creative licensing income from their creations under copyright law, under the Constitution, in order to make use of their works. And that's very, I mean, sorry, in order to sustain their businesses and to feed their families. And when their works are used without their knowledge or permission, by any entity, it harms them. And the remedies available to them, such as injunctive relief, are not helpful to them. They need to get the revenue that they deserve under the Constitution during the copyright life of their work in order to support themselves, their businesses, and their families. These are not greedy people, these are people who are struggling to survive. And so, in addition, the notion that taking would solve the problem is also incorrect because the courts, in my understanding have interpreted it to mean that all of the value of that asset is [inaudible]. So it's a real challenge. And what we're finding is that, in closing, that creators are hesitant, to even contact the states, and most certainly very hesitant to bring an action against the states because of recent developments and perceived possibility of liability if they lose, and also the cost of the action. >> Regan Smith: Thank you, Mr. Sedlik. Actually, I see Ms. Sapiandante, you may have unmuted. Did you want to respond to that? >> Maria Sapiandante: Yes, I would, I think that it's important that the Copyright Office look at every state, because there are some states, especially California, that has adopted statutory authority, in which they have trained, mandatory training for their employees and for state agencies. And so there are states and individual states that have done that. And it's important to not just take it as a broad sweep for sovereign immunity, but to look at what efforts each state has been making to educate basically their employees. >> Regan Smith: Can you please, do you have the California statutory [inaudible] for that? >> Maria Sapiandante: I do. It is the California Government Code 13988. And basically, what California has is that it mandates that all state agencies provide an infrastructure for educating their employees on what actually is copyright. With the new era of Internet, there is a huge, people don't know the difference. If it doesn't have a copyright designation on it, that it's free. Anything that's on the Internet, and so on. I provide a lot of training to, across California. And basically, once you train employees, and I think it's the education part that they should look at, more at statutes that mandate educating employees, educating state agencies, public entities, things like that, as opposed to a broad sweep of sovereign immunity. >> Regan Smith: Okay, thank you. I think to be mindful of time. Next, we're going to make sure we get to probe on some more of these individual stories. We note that it's something that court, you know, signal could be helpful. I'm going to pass the mic to my colleague, Miss Mangum. >> Jalyce Mangum: Hello. I wanted to start with Mr. Allen, if I could. You described in your comments to the Offices NOI incidents in Alabama and then in North Carolina. Can you describe those incidents, and how you attempted to enforce your copyrights and also whether when you try to enforce what their sovereign immunity was offered as a response from the Entity? >> Frederick Allen: All right, I'll do the best I can in two minutes. I responded to two specific things. One, the Department of Natural Resources in Alabama pulled an image off my website, removed a copyright mark, and then reposted it to their website. And I sent them a bill for that work. They sent me a response back that they had taken the work down, but they weren't going to pay the bill. And given the cost of dealing with an infringement, it was not worth the amount of money that I would have made off that relatively small bill that I sent them to even pursue that. And that's a very common thing. I've had that happen in several other instances with other institutions, whether they were government or not. So cost is a huge issue. I've heard it said that typical copyright case costs in excess of $350,000 to prosecute, and I can assure you that that number is correct from personal experience. In the bigger picture in Allen v. Cooper, and I'm going to assume that a certain amount of knowledge already exists from the panelists and everyone about that. The State of North Carolina violated an agreement that involved the company that found the shipwreck Queen Anne's Finch, Blackbeard, the pirate shipwreck, and I was a party to that agreement because I had an agreement with the company that found the shipwreck. We went into mediation, the state paid me $15,000 for copyright violations in that. And then within about a year and a half, the state of North Carolina passed a law that we like to call Blackbeard's Law, which converted Nautilus intellectual property into the public domain. Within three weeks of that the state of North Carolina again, published videos that included Nautilus intellectual property, video and images, without my knowledge, permission, or a license. And that's pretty much what led to our lawsuits, which we filed in December of 2015. Now, over that period, as you well know, we've been all the way to the Supreme Court. And we're unable to enforce our copyright under the Copyright Clarification Act. And I think I have several frustrations along those lines. One, I'm the creator of my work, I registered my copyrights in a timely matter. I have defended my copyrights, I've even watermarked the work that's an issue. So I have followed every federal statute and law that I'm required to follow, and I still have no remedy, and no way to address the infringement by the state of North Carolina. And so we're five years into the litigation, and we have yet to be able to address the actual facts of our case. So, you know, you know, with all due respect to the academics here, you know, when they talk about state remedies, and that's a big if. They're, most states do not have remedies. And judges, as you'll see from our panelists coming up later, always refer to federal issues. They say copyright's a federal issue, this is not a state issue. And that's certainly what we've encountered the state's given a long list of why they are not responsible for infringement as a state entity. They say that the agreement that we signed initially, in 2013, in which they paid me $15,000 is void, illegal and unenforceable, yet they signed it. So that is the reality here, and I would absolutely echo everything that Mr. Sedlik said. I've experienced the exact same things and I'm a creator. I only get paid though, when I work. I don't have a job where I get a paycheck every week. And my intellectual property is a big part of my business. And I've been licensing images and video for 25 years plus, and I depend on that. Also I have the problem that you know, this infringement or copyright violation is an intentional act. In my case, you have two intentional acts, which are, bookend a law that is literally written to take away my intellectual property. So I don't, I don't know how you address that, but that is certainly an inequity there. And I guess also in the case of the UNC Press, which is part of the North Carolina college system, they have 4400 copyrights registered. I looked this up for fun one time. Now the state of North Carolina can enforce a copyright infringement case against me. But right now, I have absolutely no ability to enforce a copyright infringement case against them. And so I'm not asking for, in my case, a special rule, I'm just asking for the same rule that everybody else has. If they can enforce their copyright violation against me, I should have that same right and that same equitable ability in court, but I don't have that right now. And more than anything, I'm a state taxpayer, and states are using my money in the, especially in my case, to infringe my work. So I'm in now I'm now in direct competition, which the state is, to the state that I pay taxes to, I just don't think that works on any level. And in the end, as a creator, this is my job, this is my work, this is how I pay my bills, this is how I pay for equipment, for insurance, mortgage, everything that everybody else does. And if the state of North Carolina can download one of my videos from YouTube, and put it out in the world, and monetize it, or demonetize it, can take away that value, and I have no recourse, that's a real problem. So again, in my case, I just want equity. I understand fair use and all that. But I would like the ability to have the same legal, federal copyright protections that a university or state entity has. So I really kind of feel like my case, Allen v. Cooper is the canary in the coal mine, and the predictable outcome of a failure to hold states accountable for copyright infringement. And so this is why we're here. ^M00:46:44 >> Regan Smith: Thank you, Mr. Allen, we really appreciate those comments. I want to move to Miss Johnson of C MATH is EASY. I know, you had stated in your initial response to our call for roundtable participants that you had had an incident with a university in Texas. Can you describe that experience or that incident, how you believe your rights were infringed, how you attempted to enforce your rights, and then also whether sovereign immunity was offered as a response to you from the entity? >> Andrea Johnson: Well, it all started with helping some students with mathematics. They had asked me, the parents had asked me to help them on a specific test, state, Texas exam. And so I asked the parent, "What are you using?" so the student brought something from school from a Moody High School, and they had an, and I looked. Well, as I was going through, there was nothing on the front, it just said TSI math, practice test. And so I was like, "Well, let me look and see so I can begin to help and, and begin to tutor the student." But as I began going through it, all of a sudden, the work started changing. And then all of a sudden, I began to notice that some of the work look familiar. All of a sudden, I saw Texas A&M University, Upper Bound Program, and all of a sudden, I see many parts of my workbook retyped, and on into this math packet. And, and so that our original book is written in 24-font, in color, but now our work was retyped with typos in black and white, nine font, and lifted out at least 30, 40 pages of the meat of our workbook, reprinted, and then given to high schools in the district, and this particular program at the university, they go to several of the high schools in the city and other independent school districts and so I don't even know how far my work has gone. And how many times it's been reproduced and copied and passed out to whole high schools, and so forth. And it was verbatim. We use like, I guess you can say lay terms. When we were writing this workbook, we wanted it to be easy. Anybody can understand it at a glance. And so they just used every word, every math problem, every number that we use verbatim. Mathematics is not easy to retype. And so division problem, a square root was retyped intentionally and put out to schools without our permission, without any kind of contract. We've been talking with Texas A&M in five or six different apartments for, since 2015 because we heard about the need, 80% of students were failing this exam. We have been going to the Corpus Christi Independent School District since 2016, telling them about our TSI math workshops and boot camps to help them with their, their issues with mathematics for this particular exam that helps students get into career and, and also into college. The particular test that we deal with, if a student wants to get into dual credit classes to take dual credit classes, they have to take this exam. The 80, over 80% of students were failing the math portion and cannot take college math courses. That's where we came into play at. And so all of a sudden, we realized that we could not be everywhere. So we designed this TSI math workbook, which was seven years in the making. And so when we began to, when we put out the book, it had a book launching. All of a sudden, our business slowed down. And we were wondering why. And then months later, we realized that our work had been retyped in Texas A&M. Upper Bound had put their logo on our work, even though it had our logo, and had copyright at the bottom, had our name on it. They lifted it off, and then pass it, passed it as their own. And so our business is almost that, almost as if this, this was our livelihood, that was taken from us, that we decided to step out of the classroom so that we can help more people as educators. I came from middle school with an engineering background before that, and my business partner is a university college professor. And with seven children, all of a sudden, we, we are writing books, but then things are no more because the university has taken our clientele, passing it to the high school. >> Jalyce Mangum: If I can interrupt and ask, how did you bring this to their attention? Or did you bring this to their attention? And what was their response? Was sovereign immunity offered as a response? >> Andrea Johnson: Well, when we began, when we began to try to pursue it, COVID happened. And so we discovered it late January, early February. And so we were asking around, what can we do? How do we need to approach? So we were investigating how we could approach. And so when we were about to begin to, to let them know about the issue, everything shut down. So there was nobody in the office to even approach because the doors were closed. They weren't taking just any kind of phone call, and so forth. So. So the COVID pandemic really put a damper on trying to reach people. And so and then we pursued 11, been through 11 lawyers, and everybody said, "Oh, sorry, it's Texas A&M University. We don't want to we don't want to tackle their system. And they're under sovereign immunity." And I was like, "There's nothing I can do?" And so 11 lawyers turned us, turned us away, because the very next thing when they called me back was they said, "Sovereign immunity, sorry." >> Kevin Amer: May I ask to say a couple of clarifying questions? So the, the book that you produce is, is sort of a training, or a workbook for high school students to help them prepare for, like statewide standardized math tests? >> Andrea Johnson: Yes. For youth and adults. Anybody, if you're going to be taking this exam, it tells you if you can take college level classes, or will you be thrown into remedial classes, foundational math classes? That's what our exam is for. >> Kevin Amer: Okay. And just to clarify, so, where did you see this reproduced? What sort of publication was it that you, that I guess Texas A&M used this material in? >> Andrea Johnson: Yeah, a student at one of the local high schools had handed it to me so that I can look at it to begin helping them. And so you remember when we're in school, and the teacher gave you a practice packet, you know, the go study at home, the little staple on it? That's what, that's what we found. And then so the last four or five pages was our work retyped in this student packet to study for this exam. ^M00:54:44 ^M00:54:47 With the Texas A&M University logo, on it with our work underneath it, retyped. >> Regan Smith: Thank you so much for your comments. Miss Johnson, we appreciate you sharing your experience. I want to move to Mr. Linder from Dow Jones. In your [inaudible] brief filed in support of Mr. Allen, you detail and matter involving the California Public Employees Retirement System. Can you describe what happened in that situation, and in particular, how Dow Jones discovered the infringement, how it initially attempted to enforce their copyright, and whether sovereign immunity was offered as a response when you attempted to approach that entity? >> Craig Linder: My pleasure, and thanks of course for having us today. So, by way of background, as I mentioned, Dow Jones is the publisher of journal publications. And through those newsrooms, we maintain some of the largest news [inaudible]. Now we're in the business of creating, collecting, and communicating information to people [inaudible]. That's a very expensive [inaudible]. And--. >> Regan Smith: Mr. Linder, you're a little in and out. If you could adjust maybe your mic >> Craig Linder: A little closer? Is this any better? >> Regan Smith: That's better. >> Craig Linder: The undertaking that the Dow Jones does with our journals is a very expensive endeavor. And it's an endeavor that in our digital day and age, is particularly susceptible to copyright. So as a result, Dow Jones, we take steps to police unauthorized use of our work, as many copyright holders do. But even we were surprised at the systematic nature and the brazenness of the infringement that was undertaken by CalPERS, a state retirement fund, a pension fund that is an instrumentality of the California government. So what did CalPERS do? Between 2009 and 2017, CalPERS used without authorization approximately 9000 articles from the Wall Street Journal, 250 articles from Barron's, and 560 articles from Dow Jones newswires and Dow Jones [inaudible]. All told, CalPERS reproduced approximately 53,000 separate articles from approximately 4500 [inaudible] publishers. These were full-text reproductions of publicly accessible website. CalPERS also compiled a daily email full-text articles sent to hundreds of recipients both inside and outside the agency. Now, we first became aware of this in June 2017, when a blogger who focuses on the financial industry publicly reported the existence of this [inaudible]. And at that point, we began our own investigations from the blogger's reporting and began conversations with CalPERS. ^M00:57:43 CalPERS invoked sovereign immunity, sovereign immunity almost immediately. Now, The case law that existed time, I wish I knew that frankly, there wasn't there had not been the Allen v. Cooper meant that we were able to reach a settlement both on our copyright claims and liability with CalPERS. But candidly, it's the settlement that severely undervalued the work in depth. So a little [inaudible]. At the time, Dow Jones charged approximately $360 to reproduce a single article in an email to 300 people, which CalPERS did on an industrial scale. And we also charged approximately $1900 to display a single article on a publicly available website for a year. Now, if you map those numbers on to CalPERS activity, that would have resulted in actual damages of approximately $22 million, or minimum statutory damages of about $7.3 million at the [inaudible]. I should also mention Dow Jones routinely registers all of the top, all of the articles that appear in the print edition of The Wall Street Journal as well as the print edition of Barron's. Like other copyright holders, we have not yet figured out an efficient way to register all of the only-online works, but that's a separate conversation for the Office. But that means that you know, we were in a position to be able to assert our rights against CalPERS. We have a very large corpus of registered copies. So again, that should have resulted in a really significant settlement and the settlement that we agreed to with CalPERS was valued at $3.4 million split between the between cash and the purchase of services. Now, candidly, we were satisfied with that settlement given the state of the law, but I think we all have to acknowledge that in the cold light of day, Allen v. Cooper changes the analysis for an agency. Following the elegant Allen against Cooper decision, if we were to present our claims to CalPERS today, I think you would hear a much firmer invocation of sovereign immunity along with a dismissal of our claims and you know, I can, I can tell you that because we are negotiating right now, dealing right now with another entity in a different state that has similarly engaged in what I would call the industrial reproduction of those articles, without any, you know, any conceivable fair use defense and that entity has also [inaudible] sovereign immunity, pointed das directly as you would expect, directly tied to the Allen against Cooper case. >> Regan Smith: Can you tell us what state that is? >> Craig Linder: It is an entity in Texas. ^M01:00:30 ^M01:00:33 And, you know, following Allen against Cooper, there is very little to stop a state agency as the instrumentality that has the desire to engage in wholesale copywriting from doing just that. Even if a state, as some do allow for suits against itself or agents, those waivers generally only apply to federal court. I'm sorry, state court. And of course federal court is the exclusive home for copyright remedies. Section 301 may further preempt state law claims that look like copyright claims, and inverse condemnation taking claims those are at best unproven. And we've seen some cases in different states where that have cast some doubt on the viability of this point. So what that means i, copyright holders like Dow Jones are left holding the bag when state entities are able to use sovereign immunity as a shield while also separately enforcing their own copyrights with the sword. And, you know, that's a system that strikes me as inherently [inaudible]. This is about in our view, willful and systematic. It's not about accidental infringement. It's not about innocent infringement, and it's not about fair use. As Mr. Madigan mentioned earlier, this is about making sure that state entities that engage in systematic, industrial-scale copyright infringement are held responsible for that actions just as a private actor. >> Jalyce Mangum: Thank you so much, Mr. Linder, for sharing, I want to move to Mr. Munter because the News Media Alliance have addressed this CalPERS situation in their comments to the Office and in response to our NOI. And you describe this incident as a systematic, systematic violation that lasted for years and involved thousands of copyright owners. Can you describe or expound on that? Who were the other copyright owners that were impacted? And were they able to obtain remedy to your knowledge? >> Johannes Munter: Sure, so the New Media Alliance represents about two dozen news media organizations in the United States and internationally, ranging from large national titles to small local newspapers, and wat is common with all of our members is that they all provide reliable and trustworthy information to their communities, giving decision makers in check and supporting a healthy democracy. And that is a vital function that is currently, far too many newspapers are struggling currently. News deserts are spreading across the US. And news publishers really rely on robust copyright protections. And when we approached this study and these comments, we asked our members for examples, and the CalPERS case was the one that was mentioned most often as the most severe instance lately. It is worth noting that this is probably, this is quite possibly only the tip of the iceberg. News, especially if you think about it is very hard to, it's very easy to infringe. You only need to have a one subscription and then you can copy a full article, paste it in an email or on a website and send it potentially thousands of people which is exactly what happened here in CalPERS. So in addition, the Dow Jones says over 9000 articles copied. There were at least almost 6900 from the New York Times, over 5500 from Los Angeles Times, almost 3900 from the Sacramento Bee, which is owned by McClatchy and almost 3000 from Washington Post. And these are just some of the biggest ones. We were unable to secure the full list of all of the newspapers whose content was infringed, and we are aware that at least according to public reporting, at least two of these newspapers reached settlements with CalPERS, in addition to Don Jones, but other than that, we were unable to ascertain as to how most of these were resolved or whether they were resolved. ^M01:05:22 ^M01:05:25 >> Jalyce Mangum: To your knowledge from your members, do you know whether there have been any other instances involving any other state entities and whether sovereign immunity was offered as a response when they attempted to enforce their rights? >> Johannes Munter: There are certainly we have heard, like of individual like instances of like a, like single instances of infringement. But that's not what we're, like that's not what it's causing economic harm to newspapers. That's not what we're concerned about, like a professor uploading a news article through a course portal or something like that. So those ones we've received just anecdotal, like instances of infringement like that, with regards to the large-scale infringement, that we are really concerned about, CalPERS was the only one that we heard about. >> Jalyce Mangum: Thank you, Mr. Munter, I will pass it back to Miss Smith. ^M01:06:29 ^M01:06:31 >> Regan Smith: Thank you, Ms. Mangum. The third key area we'd like to focus on is how the Office and Congress determine its acts of infringement are intentional, or reckless. And, you know, and so I think on the one hand, we certainly appreciate the key importance that exceptions and limitations like fair use play, we appreciate the Supreme Court opinion, noting that there are some instances of honest mistakes that may not provide the greatest background to move forward. But I also hear, for example, I think like Mr. Linder, who said, we're focusing on, I wrote it down, industrial reproductions, without any conceivable fair use [inaudible]. And I think we're trying to understand how we can separate out these examples to determine where there may be examples of intentional and reckless infringement on the one hand, from other acts, and how should we go about that? So I don't know who would like to, to speak to the general approach. If you want to just raise your hand, and we'll try to go create a dialogue. ^M01:07:40 ^M01:07:44 So, anyone? Okay, Miss Benson? >> Sara Benson: I believe that, and we've noted this before, it's not just a few bad actors that we're looking for here. And I do have a lot of empathy for the folks who have spoken today. My husband is actually an artist. So I, I feel you and I, I think that the issue, though, is not widespread enough to merit constitutional concern. And I, we did note some evidence in our comments, I was joined by Douglas [inaudible] from our Office of General Counsel, where he noted that we have three to six complaints that rise to his office per year of infringement. And our first response is to take it down immediately. And our second response is to reach out and talk to the person who has made that complaint. And then, in most instances, we will reach an agreement and a settlement with the person. We don't assert sovereign immunity in that instance, at all. And I know Kevin Smith brought that up as well. And I do, so I'm trying to point out that there are good actors out here, and we are not part of that cohort. And so I think it's not as widespread as to raise constitutional concerns. >> Regan Smith: So I appreciate that. And whether something is widespread is slightly different, as well as how a state might respond as remedies is slightly different to the question of whether the initial act might have been reckless or intentional. And do you know, in terms of the three to six complaints you may receive a year, do you have any insight into the nature of those complaints or how we should evaluate these, absent things that go all the way to court and get a judgment because we see that in some cases, that may not happen with sovereign immunity existing as a backup? >> Sara Benson: I guess my response, I can't speak to those three to six complaints. I think Douglas could, but I do think that when you're talking about people removing watermarks and, you know, intentionally taking off things that are proprietary, to me that would demonstrate intent. So that would be one of the instances I think we could look at to see whether something is intentional. Unfortunately, it's hard from the perspective of the person who, if their work was taken from them, they might feel like every act is intentional, right? Because they're saying, "This is mine, and you took it," but that doesn't necessarily mean that people understand what's going on, right? Because unfortunately, there's a lot of misunderstanding. And part of my job is to educate people about, yes, everything on the Internet is not free for you to take, right? And so I think that we would have to look for those kinds of intentional acts. And removing protective watermarks and copyright notices to me is one way to demonstrate that. >> Regan Smith: Thank you. Mr. Allen, I can see you wanted to respond to [inaudible] in the sense that removal of watermarks or copyright management information might be a good standard to look at in terms of conduct or intentionality or recklessness. >> Frederick Allen: In just listening to Miss Benson, I mean, first, first off, when you write a law, to abrogate somebody's intellectual property rights, that property rights, that's an intentional act. And it doesn't just affect me, it affects everyone who comes under that law. So you have addressed, you have created a law against multitudes of people in that case. But further, it's, as I understand it, it's a basic principle in copyright, that if it's not yours, ask the copyright owner for the use, and if somebody misuses a video or picture of mine, it didn't just magically appear on their website, it didn't just magically get posted to their YouTube channel, they had to physically go and move it. You can't, you can't have an accidental infringement in that case. So there is intent there. And so there the argument that "Oh, we didn't mean to do it," well, you may have been uninformed or uneducated. But you did physically mean to do it, and you did actually do it. So I think it's a specious argument. >> Kevin Amer: Well the, so that bring us to, and Kevin Smith, I see you. So maybe, let me just ask this. And if you want to weigh in on it, as well, please, please do. What is the proper standard for intentional infringement? I mean, we've been talking about examples, like dispensing your example involved, you know, an entity removing a watermark. In that situation, it seems clear that we're talking about willfulness, I think, is the right description. You know, someone knows that their conduct is unlawful, but they do it anyway. Is that what we need to look for? Or is it enough that some, you know, the, you know, state entity might intend to do the act, but they might have a good faith, but ultimately erroneous view that that activity is fair use? Does that sort of conduct fall within the standard of intentional conduct under the Supreme Court's jurisprudence? >> Kevin Smith: Well, I don't know if you were asking me or inviting me to speak. But I will just briefly I wanted to return to what Mr. Thro had been telling us. Because throughout this conversation, I think we've lost the emphasis on what is and you're asking exactly this question, what is the evidence we should be assessing? ^M01:13:42 Mr. Allen talks about being treated fairly, that state entities can enforce their copyright, and he can't enforce his copyright against the state entity. Part, I think that's only partially true. But I also just want to emphasize that there's a reason that there is a sovereign immunity doctrine, and there has been for 200 years. It is a fundamental part of our system of federalism. So the standard of evidence has to be very high. I do believe that intentionality is the standard you should be looking at. And a lot of the examples that we've seen today, heard today, and a lot of the examples that we saw in the comments simply don't rise to the level that we would need them to, to be sufficient evidence, which is the language used by the notice of information, sufficient evidence for the abrogation of a constitutional privilege that is a fundamental part of our federalist system. >> Regan Smith: So can you answer more directly my question, which I think Mr. Amer has, hopefully, you know, we're trying to drill down as a copyright law professor, how do we determine whether an act of infringement should be reckless or intentional? Does it need to be willfully and knowing infringement absent state sovereign immunity? Mr. Allen has said, for example, you know that you are copying. What would you say is the proper standard for us to look at this one? >> Kevin Smith: I think it does have to be willful and intentional. And I think again, I should probably just let Mr. Thro speak because I think he said this sentence correctly. It's a matter of you would have to find state policy. You asked about policy earlier. And I think that was the correct question. You would have to find policy that was intentional that enabled infringement. ^M01:15:35 ^M01:15:38 >> Regan Smith: Yes, do you--? One thing I will just say maybe you could address and is I don't, I don't quite see that in the court's opinion. Right? It is looking at specific examples of infringement for the [inaudible] report. And whether those acts of infringement themselves are intentional and not a state policy behind what may be behind an infringement. And it could be that they did not have the detail presented to them in the report. But if you could connect that to the opinion, it would help, and I'd be grateful for that. >> William Thro: Sure, I'll be happy to attempt to. I think it's important that there to know that there is never any such a thing as an unintentional constitutional violation. You have to have the level of intent. But I think to echo Dean Smith, I think you have to go beyond merely intent. A university has thousands of employees. And those employees do not always do what they are supposed to do or behave. Okay? This is why I have job security, is misbehaving employees and misbehaving students. But there is a difference between something that the university does as a policy or something that a state agency does as a policy, and the actions of what I'm going to describe as a rogue employee. And I think we see this in some of the police misconduct cases, to use a different analogy. If a cop does something wrong, that cop can be and should be sued for his or her intentional violations. But it's very hard to impose liability on the city that employed that cop, unless you can show that the city has a policy of not training or giving the, or giving the wrong training. And I would think that to rise to a constitutional level that would justify abrogation against the states, it would actually have to be almost a policy or practice, certainly intentional, but also a policy or practice that has the full blessing of the state. ^M01:17:58 ^M01:18:06 >> Regan Smith: You know, that is actually interesting, I think, a slight pivot. Since you've provided that analogy, do you have experience as to under what circumstances a corporate owner might recover damages by filing a 1983 suit against the state official in their personal capacity? And can you speak to whether state organizations might indemnify employees to perhaps make recovery more meaningful to a potential plaintiff in that? >> William Thro: I'm not aware of anything in the, in either Virginia or Kentucky or Colorado when I was working in those states, where an individual filed a Section 1980, a copyright filed in Section 1983 claim against an individual. I think that would, that is theoretically possible. And assuming you could prove infringement, the individual would be personally liable. As to whether the state would indemnify, that's going to be an open question in terms of state law. We do not indemnify if you're clearly and unambiguously acting outside the scope of your employment. But the question of indemnification in the 1983 suit against someone in their personal capacity is totally unconnected to sovereign immunity. The individual is going to be held personally liable. The indemnification question is merely a fact, that question of whether their employer will pick up the tab. And I do think that that is a realistic mechanism to go after what I'll call the rogue employee who engaged in copyright infringement without the express authorization, in fact, contrary to the directions of his or her employer.1 ^M01:20:11 ^M01:20:14 >> Regan Smith: Okay, so thank you. I do think a qualified immunity might, as we've seen in other contexts as you raise presents a hurdle and some of the instances. And I think, you know, copyright wise, they might be sort of gingerly it's just a document, given some of the discussions and other context this year. Mr. Allen, it is good to consider this. Mr. Allen, did you want to respond? >> Frederick Allen: Yeah, just real quickly. In our case, we have filed a 1983 claim, a motion for reconsideration on that. As you can imagine, the state has said that, that they are not liable. So we'll see how that turns out. ^M01:20:52 ^M01:20:55 >> Regan Smith: Mr. Sedlik? >> Jeff Sedlik: On the question of intention, intentionality, or recklessness. You know, I do work at a college, and I have had the opportunity by working as an expert witness to kind of look behind the curtain at a number of institutions, including state institutions and how they operate and how they control or do not control the intellectual property that is in their possession. We have, and this, I'm not talking about any institution that anybody on this panel is involved with. And, but these are, there's works that are stored on professor's hard drives that they've obtained from Google Images. There are open servers that staff and students can access without, without any knowledge of the IP policies. There is a lack of sufficient IP policies, there's a lack of training of staff and students in IP policies. There's works that are used without a fair use analysis. And there are digital asset management systems that are not set up to include the rights information for the works that are stored in them so that people accessing those digital asset management systems don't know whether or not they can make use of the work when they may make use of the work regardless. And that is reckless disregard, which is the equivalent of intent. ^M01:22:21 ^M01:22:24 >> Regan Smith: Okay, so we are going a little bit over with this panel, which was originally scheduled to stop at 11:30. We had a bit of a late start, our panel two doesn't start until 11:45. So we're kind of heading into our break. But I want to ask a couple of questions on recklessness or intentionality to give people an opportunity to speak on that issue if they have not already. I don't know. Mr. Madigan, do you have thoughts about absent courts, the best way the Copyright Office should evaluate some of the survey responses to determine whether conduct was intentional or reckless? And particularly I think, one thing that would be helpful, we've really appreciated hearing from all of the educational institutions today. But if there is also anyone who can speak to outside of the educational context, other state actors or ways we might evaluate this question, I think that would be helpful to us. ^M01:23:17 ^M01:23:20 >> Kevin Madigan: Sure, well, I'd have to go back and look at some of the specific responses. But I think that there were, there was a pattern shown in the responses to our survey that showed at least non-negligent examples of infringement. There were situations described, where attorneys' warnings or cease and desist letters were ignored. As Mr. Allen was talking about earlier, copyright management information or watermarks or copyright marks on the works were either ignored or removed. And then also instances in which the use of a work continued after a license expired, when the entity was aware of that license expiring. So you know, I'm sure there are plenty of inadvertent infringements, but there does appear to also be intentional, non-negligent instances of infringement, you know, which I know some of the authors and creators can attest to. So I think those are some of the things we want to consider. ^M01:24:25 ^M01:24:31 >> Regan Smith: Thank you. You know, one housekeeping matters, Miss Johnson, you had put in the chat you've reported that you've sent some letters. Could you say that on video, so we can get that into the record, because the chat itself is not being transcribed as well as anything else you'd like to speak on, on this topic? >> Andrea Johnson: And we did, we did send out cease and desist letters just recently. And so we did get a response that they, from Texas A&M University, that they are looking into it, but we have not yet got a response back from the Corpus Christi Independent School District. Even though we had had many visits with several principals in the area. We had met with counselors, particularly at one particular high school and met with counselors, we met with the principal, we met with math teachers. We were moving forward dealing with our TSI math program. And then suddenly, we, they never, they would no longer return our phone calls after, after we had met with them. And then we found out later on that our book, and pieces of our book were being passed out at certain high schools, and this high school is actually on the list that the university helps and works with. So we're thinking possibly, even though because we were in talks with them, that all of a sudden the talks just halted. So we're thinking that they got ahold to some of the material and began using it as their own through the university because the program works with between the two of them. And so, so this, all of a sudden, things no longer were being negotiated and talked about and contracts weren't made. As a result, I'm feeling when our materials start being passed out freely through the local district and other districts. >> Regan Smith: Well, I think that's a perfect way to segue to how this is affecting negotiation. Miss Mangum? >> Jalyce Mangum: Thank you. Miss Johnson, I want to talk to you and Mr. Madigan as a representative of the copyright owners, to what extent do you know that licensing terms differ when the licensee is a state entity? And what is the basis for concluding that these differences any differences are because of sovereign immunity? ^M01:26:52 ^M01:26:56 >> Kevin Madigan: Sure. So in our survey results, we had about only about 14% of respondents said that they licensed the state entities. And when we asked whether they provide different payment licensing for licensing terms and transactions with state entities, we had 23% answer yes, with 56% answering no. But out of those respondents, 68% of copyright owners responded that they believe they lost revenue or licensing opportunities due to state infringement. Only 10% responded that they did not believe that they lost licensing or revenue opportunities. And many of the responses who or answered yes went on to describe the losses they incurred, including things like lost books sales, lost subscriptions, and licensing fees for photographs and video footage. But also more intangible losses, such as careers cut short due to loss of revenue, or time spent trying to stop the infringement. ^M01:28:07 ^M01:28:10 >> Regan Smith: Mr. Munter, I believe you'd like to respond. ^M01:28:14 ^M01:28:18 >> Johannes Munter: I didn't have anything planned. But, yes. It's, it's important to remember especially like in the news context, that these are copyright holders whose works are used by the states for their own purposes, as in like they stay up to date on what is happening in their communities, in addition to the newspapers keeping communities themselves informed. And the CalPERS case, they, in some cases, as Mr. Linder noted that the damages, the potential licenses were worth millions, and that is a lot of money for newspapers, especially small local newspapers, who, who are connected to their community and depend on a very limited, limited group of subscribers. So to see state entities infringe the copyright of these newspapers is special, is especially disheartening. >> Regan Smith: Thank you so much. I wanted to ask either Mr. Thro and Miss Benson, you could respond. How often do state entities to your knowledge offer to pay a fee or licensing fee once an alleged misuse of copyright is brought to the entity's attention? And if these fees aren't paid, are there situations where there's another remedy for the creator? ^M01:29:55 ^M01:30:01 Mr. Thro? >> William Thro: Miss Benson may have more specifics. I note that she just said that the [inaudible] spends 16 million a year on licenses for various copyrights. I think it, and this is purely anecdotal, I think it would depend upon the situation. If we get something where there is, where in our analysis there is a clear violation, and reasonable people will disagree on the contours of fair use, and whether or not something is or is not a violation. But if we get something that is a clear violation, we will either cease using it immediately. Or if it's something that we actually do need, we would negotiate an appropriate licensing arrangement. And I think that's probably, in talking to my peers at other institutions, I think that's probably standard among large state universities. >> Regan Smith: So to clarify, a fee isn't offered, even if it's a clear, intentional violation unless the agency or entity doesn't need the work in the future, there's no fee offer, generally? >> William Thro: We would, we would stop. I mean, if it's something that we don't need, we would obviously cease and desist using it. If it's something that we need going forward, we would work out a licensing agreement. There may be circumstances where, particularly if it has been a long-standing infringement, where we might offer some sort of fee or reimbursement but you know, as Ms. Benson and others have said, universities are in the business of creating, and it's very important to us to preserve not only our copyrights, but our intellectual property. We're not going to intentionally violate, we're not going to do something on a large-scale industrial level. Occasionally, people will violate. When those come to our attention, we will stop that, negotiate out of a, if we need it, some sort of license agreement. ^M01:32:41 ^M01:32:44 >> Sara Benson: If I may, I just wanted to add that our library is one of the largest in the world, we spend $16 million in licensing fees, and I'm curious as to why we would pay such an enormous amount of money to license databases and electronic works if we are intentional infringers. I just to me, that is an enormous amount of money that we're spending. And we do take it very seriously. If we, I actually work with our patrons who are doing, you know, mass downloads for text analysis, for instance. If it violates Terms of Service, they will contact me and I will work with the vendor to come up with an agreement because we do not wish to violate our licensing agreements, and to lose our relationships with our vendors, of course, because we are customers of our vendors. So I do think that when our, when we do have an instance where we know we've infringed and it comes to our counsel, again, that's very limited amounts. They will work with the person and often it will result in a payment. We don't assert sovereign immunity, we will stop using that item, and that is my understanding from talking to our general counsel's office. I'm not the one who they talked to directly. ^M01:34:04 ^M01:34:11 >> Jalyce Mangum: Mr. Linder, did you want to respond? >> Craig Linder: Yeah, I just wanted to respond to the [inaudible], when presented with knowledge infringement claim, we'll stop using the work that's been infringed. And if they want to use it in the future, negotiate a proper license. That's the state of the law right now, right even after Allen against Cooper, a copyright holder who finds that a state agency is misusing their work and obtain an injunction against to cease the work and against future use of that work. Which is why I think it's so important that we understand the sort of standard setting aspect of the law, because the notion that a state agency will stop and then only pay money if they want to use [inaudible] as Congress has attempted and intended. That was not the state of law [inaudible] and the state agency's in a very different position. >> Jalyce Mangum: Mr. Sedlik, did you also want to speak to this [inaudible] last call? >> Jeff Sedlik: Yes. So in my experience, the license terms, employed, at least by visual artists, in contracting with the states are no different than the license terms when they're contracting with other parties. When, when those agreements are breached, of course, they do have injunctive relief. But even Congress said in passing the CRCA in 1990, I believe they said that injunctions are an incomplete remedy. And that's very true, because the artists can get no remuneration, they can't get their lost profits, and they, there's lost licensing opportunities. If a state takes one of my photographs and puts it on the cover of a book, I can never license during the rest of the copyright life of that work for a book cover. Not because it was an exclusive license, but because no publisher will take it for a book cover once it's been on [inaudible]. >> Regan Smith: Yeah, and just to be very clear, you're saying once you experience an infringement by a state actor, it is affecting the market for that work with others who may not be state actors, correct? That's right. >> Jeff Sedlik: Thank right. ^M01:36:29 ^M01:36:32 >> Regan Smith: Thank you. So Miss Johnson, I think you have, you have also said, if you would like to share your experience about your additional products, and then I think we may be wrapping up. If anyone wants to say one last thing, raise your hand so we can get you. Otherwise, we will be concluding. Mr. Madigan is next. Thank you. >> Andrea Johnson: Because of the infringement that we have experienced, we have been reluctant to, to put out our nursing math workbook, because we're afraid that it might be also lifted, because it's in the same style in which we know very, very much so that they like the style in which we're designing our books. And so we have not purposely put it out on the market, because of the fear of copyright infringement, and maybe not be able to get our worth that we have put into this next book that we have waiting and ready to be put out. But the fear that someone's going to lift it also. So it's, it's, it hasn't been, it hasn't been a good place to be a creator when you know that people are stealing your work, and you know that they like it. I'm glad that they like it, but we're not getting any payment for what they do like. >> Regan Smith: Thank you, Miss Johnson, for sharing your experience. I think Mr. Madigan, you can have that final comment if you can try to be relatively brief because we are running a bit late. >> Kevin Madigan: Yeah. Just a real quick closing thought. So there's, you know, this obvious back and forth going on between us and those who are opposed to abrogating state sovereign immunity, who say there's no sufficient record of infringement. And then those of us who say there are, but I think it's important to understand that there's no magic number of infringements or bright line that would trigger congressional action. In Turner Broadcasting v. FCC, the Supreme Court held that Congress can use its legislative authority to make predictive judgments that further import government interest. And I believe that the evidence offered at these roundtables and in the comments period creates a record supportive of a decision by Congress to make a predictive judgement on the extent of harm caused by copy, state copyright infringement and take actions that further the goals of our copyright system. So I would just suggest that we sort of consider sovereign immunity in a little bit of a broader context of whether it really serves the goals of the copyright system. >> Regan Smith: Thank you, and thank you all for contributing to panelists' discussion. That is a wrap for this one. We're going to take a brief break for a sound check. So if you are on panel one, you can turn your video off. If you are on panel two, you can turn your video on. Let's try to start around 11:50. We'll do the best we can, and thank you.