^B00:00:11 >> Kevin Amer: We're going to start session two which is another panel on evidence of state infringement. Before we do just a couple housekeeping reminders. First, for the panelists if you could just please remember when you're not speaking to mute your microphone to avoid you know any extraneous noise. Secondly, just a reminder for those watching on the public link, if you're interested in signing up to participate in the open mic session at the end of the day, you can do so at the link that should be provided in the chat here shortly on Survey Monkey. And then at the day, you'll be able to come back using the same public link to make comments as part of the open mic. So let's get started. So this panel, as I mentioned, has to do with evidence of infringement. It's going to follow roughly the same roadmap that the first session this morning did. First, we're going to I think talk I a broader way about the types of evidence that the and the copyright office should consider. What type of evidence, broadly, is relevant to assessing this question. Then I think we're going to move towards more specific examples that folks have raised in terms of identifying claims of infringement against states. Then we would like to talk about the standard that the court articulated in terms of what it means for infringement to be intentional. What level of intent is required to satisfy the constitutional standard . And then finally we're going to talk about any effect that sovereign immunity may have in your experience on licensing negotiations involving copyright owners and states. So just to kick things off if I could ask all of the panelists to introduce themselves. Let's start with Dr. Bell, please. >> Dr. Keith Bell: My name is Dr. Keith Bell and I'm in private practice. ^M00:02:42 ^M00:02:46 >> Kevin Amer: And Mr. Bynum, are you on the phone? ^M00:02:50 ^M00:02:55 I think-- ^M00:02:56 ^M00:03:00 I see your name. ^M00:03:01 ^M00:03:08 I'm not sure if Mr. Bynum is on. ^M00:03:12 ^M00:03:18 Let's go to, is it I hope I'm pronouncing, forgive me. Is it Layo [phonic]? Mr. Laiho? >> Devin Laiho: You got it. Good morning. My name is Devin Laiho, I'm a senior assistant attorney general with the Colorado Attorney General's Office. We advise executive branch state agencies, except for some of the higher educational institutions in the state. And I just need to make a disclaimer that any comments that I make today are not made on behalf of any of our clients or state the agencies. >> Kevin Amer: Okay. Thank you. Ms. Levine. >> Melissa Levine: My name is Melissa Levine. I direct the copyright office at the University of Michigan Library. I also am a lecturer for the University of Michigan's School of Information where I teach a course on intellectual property and information law. And I want to mention that I'm a founding member of a working group that established RightsStatements.org, which is geared toward providing relevant intellectual property information for education and cultural needs. >> Kevin Amer: Thank you. Mr. MacDonald. >> Good morning, everybody. My name is Angus MacDonald. I work at the University of California's Office of General Counsel. I handle copyright matters for the entire University of California system, which comprises 10 UC campuses, 5 medical centers, and 3 affiliated national laboratories. I just want to thank the Copyright Office for hosting this roundtable to discuss the significant constitutional issue. Thank you. >> Kevin Amer: Thank you. Mr. Molner. >> Isaac Molnar: My name is Isaac Molnar. I am an intellectual property counsel for the Ohio Attorney General. In Ohio, the Ohio Attorney General is required by law to represent every state entity. And as IP counsel for the AG copyright claims, cease-and-desist letters, etcetera come to me. So I have a pretty good idea of copyright infringement issues in Ohio. >> Kevin Amer: Thank you. Ms. Murphy. >> Kristen Murphy: Hi, I'm Kristin Murphy. I'm the director of the American Chemical Society's Examinations Institute. And I'm also a professor of chemistry and biochemistry at the University of Wisconsin Milwaukee. >> Kevin Amer: And finally a Mr. Wassom. >> Brian Wassom: Hi, I'm a private practitioner in a law firm based in Michigan. I am here today on behalf of the American Intellectual Property Law Association, AIPLA. And as Mr. Laiho did, I'm going to just disclaim that I'm not speaking on behalf of myself, my firm, or my clients, but rather on behalf of the AIPLA. >> Kevin Amer: Great. Thank you all again. So, as I mentioned, I would like to start at sort of a higher level in talking about you know, what sorts of evidence is relevant. And actually, Mr. Wassom, I'd like to start with you if I could. In AIPLA's submission you listed a number of copyright infringement suits that have been brought against states in the past, I believe two decades. Mr. Bynum also submitted a lengthy list of infringement actions brought against states. I'm wondering if you could talk a bit about your view in terms of what we can draw from that sort of evidence in terms of assessing the prevalence of infringement by states. >> Brian Wassom: Sure. Thanks, Kevin. So, in AIPLA's submission, we identified 19 different written decisions from the litigated cases that are available online and in publicly available databases. What's interesting about the cases themselves is the breadth of works and of state agencies that were involved in the cases. So the works themselves include such a diverse examples as photograph, video recordings, standardized tests, books, chapters, graphic designs, paintings, software, databases, teaching materials, and research reports. Which speaks to the wide swath of creators and creative institutions that are impacted by this sort of activity. And the defendants in these cases included state-sponsored commissions, institutes, foundations, boards, bureaus, educational institutions, and hospitals. Again, reminding us that when we speak of abstract terms like 'the state,' it really encompasses a broad range of entities with whom creators may interact, and entities that may otherwise use copyrighted materials that non-state actors would need to pay a license fee for, or face recrimination for infringing. Our members, which include both private practitioners, in-house counsel, counsel for public entities, but a large number of private practitioners who are in the trenches, day in and day out fighting these cases. Strongly suspect that this is really only the tip of the iceberg. As any practitioner understands, the number of cases filed versus the number that actually result in a published opinion, there's a wide discrepancy between the two. And the number of unreported, settled, or never filed lawsuits is almost inevitably much higher than what we see from these 19 different cases. In addition, the cost of litigation and the obvious futility of bringing infringement claims against the state entities, we suspect and we understand anecdotally, would deter a number of cases that might have otherwise been filed. It's important to remember here that as the Supreme Court itself explained in the Allen decision, the writing has been on the wall for the CRCA for at least two decades, before the court finally acknowledged its depth. The vast majority of lower court decisions had already decided that CRCA was constitutional. And practitioners know that. So not only the number of creators understand that the remedy is futile. But the attorneys who would otherwise file those cases on behalf of the creators understood that those cases were futile. ^M00:10:05 And so this really to sum up, these 19 cases we believe are the tip of the iceberg on the infringement that is actually occurring. >> Kevin Amer: Now, so that's an interesting point. I mean because you're right. And one of the points that we've heard in the comments is the fact that as the court, you know, said in the Allen v. Cooper decision, the law after Florida prepaid was fairly clear that sovereign immunity precluded copyright claims against states. So, in some ways, you know, it seems surprising that there would continue to be significant numbers of cases. Were you able to determine to what extent these cases involved claims for damages against states, as opposed to, for example, you know, claims for injunctive relief brought against individual state officials? >> Brian Wassom: So we didn't drill down to that level of specificity in terms of gathering hard data in the numbers. But our read of these cases that each of them, the plaintiff sought damages and that would have been something they sought, but for the fact that they were stymied by immunity. >> Kevin Amer: And is it your understanding, you know, just from having looked at those cases that essentially, they were efforts to distinguish the CRCA from the Patent Remedy Act that was addressed. I mean were they essentially trying to, you know, make the argument that notwithstanding Florida prepaid, sovereign immunity did not apply? >> Brian Wassom: Again, the level of legal analysis and the strategies used vary from case to case. But all of them in one form or another were trying to get the relief that CRCA otherwise would have provided. >> Kevin Amer: Mr. MacDonald, it looks like you've raised your hand, would you like to weigh in on the usefulness of this evidence? >> Angus MacDonald: I would. Thank you, Kevin. I just want to provide a little bit of context, because I did review the AIPLA's submission. And in response to the question one about specific instances, as Mr. Wassom pointed out, there are 19 examples. But it was over the span of 36 years. If you look at one of the earlier cases that's bullet pointed in the AIPLA's submission it's from 1984. And it goes through instances of 2020. Nineteen examples over the course of 36 years does not seem like an overwhelming amount that would necessitate aggregating the constitutionally protected sovereign immunity. I also think that these examples, these bullet points are not entirely probative for the copyright office's inquiry. I haven't heard and I haven't seen anything in the AIPLA's submission or in other submissions of any proof, or evidence, or determination that setting aside the 11th amendment sovereign immunity, the state defendants did not have meritorious, or at least plausible defenses that had they been fully litigated they may have prevailed. I think it's going to be that level of inquiry that's going to be required based on whatever is available in the public record on these various matters. Most of which did get dismissed at an early stage because of sovereign immunity. You know, there's another reason why I just think this bullet pointed list is not entirely probative. It simply purports to identify how state entities responded in response to a copyright infringement lawsuit, by relying on their constitutionally protected sovereign immunity, among other defenses. It doesn't actually establish that any of these alleged infringements, at the time of the alleged infringement, were done with intentional or reckless intent. And that's the standard that we're talking about. I think it's going to be far more probative to actually look at fully litigated cases. Cases involving public entities that, for whatever reason, sovereign immunity didn't apply. And I'm sure the Copyright Office and others on this panel are aware of the Georgia State litigation, where the publishers ended up losing on almost all accounts. And having to actually pay the cost to Georgia State. Or the Authors Guild v. HathiTrust matter involving the University of Michigan, the University of California, and other state institutions. I'll pause right there. >> Kevin Amer: Thank you. So now you've raised a number of important points that I want to sort of take in turn here. You first mentioned the number of cases, I guess there were 19 in the AIPLA's submission. If Mr. Bynum is on the phone, I would like to invite him to weigh in on this question of sort of you know the number of cases that are relevant here. Mr. Bynum, are you there? ^M00:15:55 ^M00:15:59 >> Briand Wassom: Issues are. I'm sure more are going to be probative than others, that's fine, it's not meant to be a smoking gun. But it's certainly indicative, we feel, of the state of the law and the state of infringement activity that's going on. And the cases are all there, they're all accessible public databases for, you know, the world to read and for the office to study as well. And certainly if the office would invite, AIPLA's further submission and analysis of those cases, that's something that we can provide. I would say though that 19 cases on an issue that ought to have already been so clear as a matter of constitutional law, I think, Kevin to your point. I read a suggestion in your initial comments that that's actually a fair number of cases compared to what the understanding should have already been. AS a litigator, I know that there are a number of issues that I wish someone else would have spent hundreds of thousands of dollars litigating fully all of the various possible defenses so that we would have a robust public record of what the merits of each of these arguments would be. But I can't expect another party to do that. >> Kevin Amer: Well, right so just to maybe turn back to you, Mr. MacDonald and I want to bring the others in too. I mean you made you know, an important point I think, in noting that it's not clear from just the fact that these cases were filed to what extent the states may have had other valid defenses. You know whether the copyright owners ultimately would've prevailed. I think you know from our standpoint at the Copyright Office, the question is you know, what other evidence? I mean the problem with us using those cases is the fact that the merits are not able to be addressed because of sovereign immunity, right. You know, so the cases don't really provide a vehicle for us to assess, you know, whether there were meritorious defenses, etcetera. So do you have sort of thoughts about other sorts of evidence or ways that we can use these sorts of cases to make this assessment? >> Angus Macdonald: Yes, I do. Well, as I mentioned, there are some fully litigated cases where sovereign immunity, for whatever reason was not at issue. Or did not preclude a decision on the merits. And I cited a couple. And there's extensive record in the Georgia State litigation, as well as in the Authors Guild v. HathiTrust litigation. I do think that those cases are going to be far more probative than you know, 19 cases that have been dismissed at a motion to dismiss level. That's point number one. The second point that I think in terms of looking at evidence. And I do respect, and admire, and I think it's going to be a significant project by the Copyright Office to really get into the evidence. But one of the questions in the notice of inquiry, which is question 1f, is whether the infringement was committed pursuant to a state policy. I have looked at most of the initial comments as well as the reply comments submitted in response to the notice of inquiry. I saw no evidence whatsoever of state policies, where the state institution had a policy of, we're just going to infringe and not worry about it and rely upon sovereign immunity. I think we heard from Mr. Thoreau [assumed spelling] of the University of Kentucky, who provided some elucidation about what is really required here. ^M00:20:00 It's a de facto policy or pervasive pattern or practice of infringement. Again, I don't see that. The third point is that I really do think it's going to require going into the public record for a lot of these cases and a lot of the points that Mr. Bynum and the AIPLA had submitted to see what is raised in the motion to dismiss. Was it purely sovereign immunity? Or were there meritorious other defenses that were raised. Just by way of example, I did carefully look at the AIPLA submission and I did look at Mr. Bynum. There was a reference. And I was looking specifically for the University of California. And there was a reference to a 1987 case called BV Engineering v. UCLA. And in the second paragraph of the District Court's decision, which of course granted sovereign immunity. It specifically said that the defendant's regents motion is based on various grounds, including a claim that defendant is entitled to immunity from suit under the 11th amendment. And then in the two sentences later the court says it does not reach the remaining issues posed by the parties on their motion for summary judgment. The point being is there are typically many meritorious defenses that are raised, at least in my own practice and from what I've observed with other state institutions, aside from the sovereign immunity. And I do think that those need to be carefully looked at. >> Kevin Amer: Thank you. So, Mr. Wassom, I see you've raised your hand, so I'm going to go back to you quickly. And then I would invite particularly folks from states to weigh on this question too. I mean I would say at least on its face, the fact that we have evidence of up to 160 cases filed against states since 2000 for copyright infringement, seems noteworthy. And so I wonder if other state representatives agree with Mr. MacDonald, you know, that we sort of need to look at those cases on a more granular level to determine whether there's sort of a pervasive issue. But Mr. Wassom, you wanted to respond. >> Briand Wassom: Thank you. Two quick points and I'll pass the mic. The first is its number of cases that either were never filed, or were filed at the complaint stage and abandoned, which the data that is provided so far suggests that number is going to be orders of magnitude higher than the number of cases we can actually identify with decisions that were reached. The second being, Mr. MacDonald's point is a great one that state entities have a wide variety of other defenses available to them. And if in fact the CRCA that remedy was readopted and sovereign immunity no longer became an issue. Now we'll be able to actually litigate those and be able to determine their merits. And the availability of those defenses is a great reason for state entities to not fear that the sky is falling just because the CRCA is reinstated. They have a wide variety of other defenses to fall back on. So the impact on those state agencies likely to be muted by those defenses. >> Kevin Amer: Thank you. Mr. Laiho. >> Devin Laiho: One of the things that I wanted to comment on is the number of cases and the number of allegations we had of infringement. So while it's true that state agencies do occasionally receive emails or letters alleging that they've infringed an author's work. When I say occasionally, I'm talking about a handful of allegations over a multiyear period. I've been our office for over 20 years, and on average our office receives maybe one infringement allegation per year. And that's across all the different state agencies that we represent. So I think it's really important to understand that. This isn't some pervasive pattern of even allegations that the state agencies are infringing author's content. >> Kevin Amer: Yes, Mr. Molnar. >> Isaac Molnar: Again, I would just follow up, I've been counsel for State of Ohio, I've been in this position since 2012. So going on nine full years. And I went back and counted how many cease-and-desist letters I've had to deal with for all our state entities. Two-year colleges, four-year colleges, state agencies. And it amounted to seven over the course of nine years. Just cease-and-desist letters. And of those seven, actually there were two or three that were meritorious. And we settled. We paid out some judgment. And that's a matter of public record. So they just don't come up very often. They really don't. At least in my practice. Like I said, I think it's consistent with what Mr. Laiho said. I would expect to see a cease-and-desist letter maybe once or twice a year. >> Kevin Amer: So, you mentioned paying out settlements or paying damages. It is that the state's typical practice when presented with an infringement claim? I mean do you undertake an assessment of the merits. And if you find it meritorious, you know, try to work out a financial settlement. Or is it typical that you will assert sovereign immunity? >> Isaac Molnar: So, and I don't know what the law is in the other states. But in Ohio, there's a pretty easy workaround to 11th amendment immunity. So the state will be potentially on the hook regardless of whether or not we assert the 11th amenity immunity or not. That is you can obtain a public records request, find out the individual who's actually responsible for the copyright infringement, sue them in a personal capacity. And under Ohio law, we represent them and then indemnify them. So, we have to be very cognizant of that risk. So we really assess the merit of claims. And where we've had meritorious claims, like clear copyright infringement, we've settled, period. I mean we're also the chief state law enforcement officer and it's not a particularly good look, in our opinion to use the 11th amendment as a technicality to avoid following the law. So we have two different approaches, but they work in I think the same way. >> Kevin Amer: So you were talking before about, I assume 1983 suits against state officials in their personal capacity, is that what you were? >> Isaac Molnar: Well, you can sue an individual in their personal capacity for copyright infringement. Just a copyright claim against that individual. We've had to deal with that case. We had a case where our agency was Department of Natural Resources, was sued. And we dismiss that on 11th amendment grounds because it was not a proper suit. But they brought the suit again, and we told them if you know who did it, if you have the name of an individual, which they did. Then you need to sue them in their personal capacity. And they did. >> Kevin Amer: But I'm talking about, you know, situations where the state employee is acting, you know pursuant to the state policy, or acting, you know in their capacity as a state official, in that circumstance you would need to bring the action under 1983, I gather right? And the official would be entitled to qualified immunity. >> Isaac Molnar: So, I'm not sure that you would bring it under 1983, I mean the claims that I've seen, and where this has come up, it's been the claim for copyright infringement. Now, district courts that have considered it have said qualified immunity applies in that case. >> Kevin Amer: Okay. Mr. MacDonald, you raised your hand. >> Angus MacDonald. Yes, thank you for again allowing me the opportunity. The answer is yes. We do pay from time to time. I don't have any sort of specific numbers. But in response to credible, meritorious claims of copyright infringement where our own defense is separate from sovereign immunity are in my opinion not very strong, I do recommend some payments to settle the matter. Because we respect copyrights. We have various policies that require us to adhere to copyrights. We're subject to the Higher Education Opportunity Act, which requires annual copyright disclosures or potentially our federal funding is withheld. So yes, we do pay on occasion. I would say it's certainly less than 50%. But certainly greater than 0%. And in a few instances, we have settled on, sometimes, in addition to payment or sometimes in lieu of payment to take corrective measures with the aggrieved copyright owner. One such example was where a college radio station had to impose some educational requirements to all of their new employees about copyright, and copyright infringement, and the bounds of fair use. ^M00:30:08 So those are some of the examples where we do take measures, including payments, in response to credible copyright infringement claims rate. >> Kevin Amer: Great. I do want to turn to the copyright owners who have raised specific allegations of infringement that they've experienced by states. Dr. Bell, I'd like to start with you if I could. You have submitted comments I've gotten through the Copyright Alliance, alleging numerous infringements by multiple state entities. I was wondering if you could just give a brief sort of overview of those situations. And the types of infringements you're claiming. And how the states of responded. >> Dr. Keith Bell: Okay well again, I think this is just the tip of the iceberg. But I've identified more than 130 universities, public universities, who have infringed, or whose employees have infringed upon my copyright. Now the question whether it's meritorious, we would probably disagree on many of them. But that's something I would like to see happen in court, rather than just dismissing, not being able to go after them because of sovereign immunity. I have some, you know, I wrote a cease-and-desist. And the only response that I got was we claim sovereign immunity. The University of Texas is particularly of interest to me and I got my master's there and my doctorate, and did a post doc there, and worked there. And they have a very strong brand, make a fortune on licensing their works. And are well respected in the community with what their policies are. But when I had multiple infringements by employees of the University of Texas, the only response I got was sovereign immunity. >> Kevin Amer: So, let's just back up. So you have a number of books that you've published. >> Dr. Keith Bell: Yes. >> Kevin Amer: So, could you describe sort of the nature of the infringements that you're experiencing? What are the states actually doing with your works? >> Dr. Keith Bell: So, I've written 11 books, 10 of them on sport psychology and human performance technology. I have a copyright on the book "Winning Isn't Normal." And a separate copyright on the heart of the book, the main passage that I wrote the book around, also called "Winning Isn't Normal." All of my books have been infringed upon. But the "Winning Isn't Normal" in particularly has been hugely infringed upon. It's been distributed, disseminated out to literally millions of people, without any kind of [inaudible]. Some of it is very clearly willful. The University of Louisville, for example, eight of their sports infringed on my copyright actually attribution to anonymous. And at least one of those sports had prior warnings from the national governing body in that sport. And yet, the infringement continued after. >> Kevin Amer: What exactly was the infringement? What did they do? >> Dr. Keith Bell: Well, first of all they infringed upon my right to how it's used. So for example, I have a particular derivative of the passage "Winning Isn't Normal," which I have a copyright on. That is gong or just being distributed widely right now. And it has a phrase in there, it's literary, and nonsensical. And that's really very embarrassing to me as the author, right. That bothers me a lot. It's been distributed unbelievably widely. I have one particular derivative that has been copied and disseminated in billions of forms. And very important part of my concern with this is that because of all the infringement in my works, I stopped writing. I was very prolific in getting a bunch of books out in a fairly short number of years. But the amount of theft that's gone on makes it very difficult for me to collect and stop people steeling my work. Particularly it's I think that hurts the society that people such as myself stop writing. >> Kevin Amer: I know you've filed, you've, you know, asserted claims in a number of courts, infringement suits. And so, in those cases, is sovereign immunity one of the defenses that states have typically raised. >> Dr. Keith Bell: Well, I'm not sure, but I don't think so in those particular cases. But I just, there are hundreds of cases that I haven't pursued because of sovereign immunity. I can't afford to do that. I can't afford to take them to trial. And I think that my goal in sending a cease-and-desist is to get them to stop, but I also want there to be a deterrent effect to stop other people. So for example, I had multiple infringements from North [inaudible] State University. And they did it over many of their sports, and their recruiting office, and some of the other administrative offices. And I just couldn't go after them, you know, sovereign immunity. The universities license their brands, their trademarks, their patents, and their copyrights. And they make sure that even their own employees, they own what their own employees do a lot of the time. And if their employees on their own then go use it, then they go after their own employees. They also punish students for that kind of behavior and I find that appalling. >> Kevin Amer: That's helpful. I do, just in the interest of time, want to move to I believe Mr. Bynum, are you there now? ^M00:38:29 ^M00:38:37 One of these times this will work, but apparently not yet. Okay. I would like then to turn to Ms. Murphy. You talked about infringements of various pieces of intellectual property that the American Chemical Society has produced. Could you talk just generally about what sort of infringements by states you've experienced? >> Kristen Murphy. Of course. Thank you. So just so everyone is clear, I'm actually part of the Division of Chemical Education, which is a technical division of the American Chemical Society. And of that we have an entity called the Examination's Institute. And that's what I lead. We're a very small group, unlike our parent organization, ACS. We've been around since 1934, and we produce standardized tests in chemistry. These are used by many institutions. Currently over 2500 institutions use our exams in some capacity. And we hold secure copyrights on our test items. Because many of our tests are used for final exams, our test lifetime is actually quite long depending on the area. ^M00:40:04 So you know, a general chemistry, or an organic chemistry test might only live as a released or active test for maybe 4-6 years, physical chemistry test might live for, you know, 10-12 years. Because it takes so long to develop these exams. The types of infringement that we've experienced over the number of years that I've been director, and that's a little over five years have included actions by employees of institutions, where they have either photocopied our tests, or they've translated our materials in either study materials, or their own exams using learning management systems or directly using paper tests. Most commonly using learning management systems. And then the other component of this is where that secure site that is supposed to be set up in which the tests are administered is n to in fact as secure as it needs to be, and students then are the ones that either take pictures of the exams, or they remove tests from the site. And then that obviously compromises our items. We've had fairly good experience being able to work institutions that infringe that are private, that are not part of state institutions. And we've been able to seek some damages and been able to really the more important thing, not the damages, but the more important thing is to be able to correct actions so that the infringement doesn't continue. We have a number of ongoing situations though with entities that are part of state institutions. Sometimes they're actually state universities. Sometimes they're connected to state universities and that becomes a little bit murky, where we have come up against sovereign immunity almost immediately, in fact. I'm a chemist, I'm not a lawyer so I apologize for not being well versed in what so many of you are. But the lawyers that we work with often times will tell us that we're simply not able to pursue things simply because of the state institution. And we stop at that point. We certainly make every effort to be able to be able to have the materials removed. But oftentimes that falls to us then because there's nothing we can, we have to recall tests. Hundreds of thousands of dollars spent on our side. And like I said, we're a very small group. We have 60 products that we're trying to protect with about five people. >> Kevin Amer: Let me just jump in, it sounds to me like we have some background noise. So if everyone who is not speaking could. >> Mark Gray: Kevin, I think that may be Mr. Bynum actually. Mr. Bynum, can you hear us? >> Kevin Amer: I think I can mute him. Okay. Thank you, Ms. Murphy I just want to ask a couple of clarifying questions. So you produce, are they model exams? I'm interested in sort of what your normal marketing practices are. You know, who are your customers for these sorts of materials? What's the normal business practice? >> Kristen Murphy: Right, so our customers are actually faculty and instructors in departments. So to go to a procurement model our license for university just doesn't fit our product because it's simply not widespread use by a university. It's only used by chemistry departments. And the customers range from high schools all the way through our one university. >> Kevin Amer: And so I wasn't totally clear. Have you encountered situations where you've contacted states or you know municipality, or a state entity and brought an infringement to their attention? And what has their response been? >> Kristen Murphy: We have been told that under sovereign immunity that we have no recourse. And at that point we've dropped it. >> Kevin Amer: Can you tell us what state or states have said that? >> Kristen Murphy: I don't think I can disclose that. Some of these things are actually ongoing investigations at this time. So, I'm sorry. I'm just trying to be very careful. >> Kevin Amer: I understand. And have the states said that they intend to keep using the materials? >> Kristen Murphy: Okay so and that's where it comes to, we're looking for corrective action primarily. It's less of a getting damages and more about correcting the action so that items stay secure. And that's been somewhat successful in terms of being able to work with faculty to provide a secure environment so that it doesn't continue to happen. And we do get corrective action in terms of, you know, if it was a willful act by an instructor to have it removed. But the you know, that's too late at that point, you know we have to recall the test. And we are the ones that have to pay the cost associated with that. And we can only sustain so much. I mean we are a very small entity. >> Kevin Amer: Okay, thank you. I'm going to try one more time with Mr. Bynum. Are you there Mr. Bynum. ^M00:46:02 ^M00:46:12 Mr. Bynum are you there? ^M00:46:14 ^M00:46:30 Mr. Bynum are you there? >> Michael Bynum: Hello? >> Kevin Amer: Yeah, we can barely hear you. >> Steve Andreadis: Mr. Bynum you may need to change your audio to call in. I will try to help you off-line, by IMing you directly. So if you can't do that yourself. >> Michael Bynum: Yes, I would appreciate you to help. >> Kevin Amer: Okay, yeah. I think we might have to wait until we get that figure out. Because I'm just not able to hear you unfortunately. ^M00:47:13 ^M00:47:18 I want to now turn to the issue of intentional infringements and to what extent there is evidence that infringements by states are rising to the level of intentional infringement, articulated by the court. And I'm going to turn it over to my colleague Mark Gray to ask some questions about that. >> Mark Gray: Thanks, Kevin. So as Kevin mentioned, in Allen v. Cooper, one of the things the court was concerned about is whether copyright infringement was being done intentionally, recklessly, or negligently. And so to kind of understand how we at the office should think about that while we're going through the study, one of the things we are kind of trying to figure out is generally when infringement claims are brought to a state, how does the state respond. And so I think we already heard from Mr. MacDonald a little bit to this. And just a minute ago from Professor Murphy. But Dr. Bell could you speak a little bit more? You mentioned that there was one instance where they raised immunity, but could you speak to any others? ^M00:48:31 ^M00:48:38 I believe you are muted. ^M00:48:40 ^M00:48:57 >> Dr. Keith Bell: Can you hear me now? >> Mark Gray: Yes, perfectly, thank you. >> Dr. Keith Bell: So, one of the things I wanted to comment on that I missed before was that I have a tremendous number of infringements from public schools. And way more than from public universities. And I haven't gone after them because of sovereign immunity, although I have a few where they have responded to cease-and-desist by claiming sovereign immunity. Particularly [inaudible] I think in this case was one of the school districts in Michigan which claimed that it was state policy that the state has sovereign immunity, the state policy in Michigan. ^M00:50:01 And because of that it's really had me cut back on the number of claims I've made to public schools in Michigan. And a couple of other things that are of concern is being able to; other people, private schools, private universities, vendors, teams, all who buy multiple copies of my books can't really compete with that. It's not fair to them. And for me, one of the problems with copyright law right now is that there are cases were many people claim oh jeez, this is an infringement, and I'd like to be able to litigate that. But it's really difficult for doing that. And they have the right to go make proposals and try to argue fair use, or things like that. But it's a situation now where a lot of them go and say it's all over the world, my work, there are millions and millions of copies of it out there. All anyone has to do is claim that they got it from a legal source to muddy the waters on the merits of that copyright. Then they'll claim innocent infringement, which I'm happy to litigate. But I don't think it's just innocent infringement just because they got it from a legal source instead of getting it directly from me. >> Mark Gray: So if I can ask two quick-- oh, sorry can I ask two quick questions about that actually? So when you say a legal source, do you mean that they're claiming that they obtained it from a school district or another state entity? >> Dr. Keith Bell: Sometimes, yes. Sometimes they don't know whose it was, it's just all over the internet without an attribution, or inappropriate attribution, misstated attribution, or anonymous, or no attribution at all. And so they say, well gee, you know, I couldn't possibly have known. And of course they can. They have at least constructive knowledge that it's my work. It's very easy to find that out. >> Mark Gray: Great. And then my second question is you mentioned a Michigan school district saying that it was the state policy of Michigan. Could you give a little bit more examples of that? Do you mean like they adopted your work as part of a curriculum? Or what kind of policy? >> Dr. Keith Bell: What I was told by that entity was that there was sovereignty immunity and that it was state policy. And they gave me some numbers, and I can't remember the number of it right now, but they told me it was state policy. >> Mark Gray: In that case, I think Mr. MacDonald actually wanted to respond really quickly. So would you go ahead Mr. MacDonald. >> Angus MacDonald: Thank you, Mark. And I promise to be brief and I appreciate your repeated indulgences in allowing me to speak. I just want to briefly respond to Dr. Bell, "Winning Isn't Normal." I actually read the heart of the book, the passage that has been copied on, according to Dr. Bell numerous instances. It's a powerful statement. It was inspiring to me to read it. I have and the University California has great respect for authors. In my professional capacity in pro bono work I represent many of these authors. However, with due respect to Dr. Bell, I think is a very curious case study for the Copyright Alliance to highlight Dr. Bell in its submission. And that APLU and the AAU reply submission talks about Dr. Bell's recent track record of litigated matters that have, unfortunately, for him have not fared very well. He mentioned the school district in Michigan. There is a school district in Ohio, the Worthington City School District where he lost on a litigated matter, not sovereign immunity, on fair use. It's referenced in the Copyright Office's Fair Use Index, Southern District of Ohio, June 2, 2020 a fair use decision in favor of the school district. Where the court specifically talked about how it was not addressing the other arguments raised by the defendants, including a de minimis infringement, an innocent infringement, and no vicarious liability. Also in 2019, Dr. Bell again lost his case with prejudice in the Bell v. Magna Times case in the District of Utah, April 29, 2019. Again, fair use. In the most recent, in my jurisdiction, the northern district of California, Dr. Bell on October 14, 2020, this year, less than two months ago, was ordered to pay $120,000 in attorney's fees to a small nonprofit pool club and $2000 in costs to the defendant. There were a lot of statements about exorbitant settlement demands, extortionate settlement demands, and not advancing the purposes of the copyright act. >> Kevin Amer: Let me just jump in. And I certainly take the point that we want to look carefully at the merits of all the cases that folks are alleging. I don't want to go sort of too far down the road of assessing specific claims in fine detail. I don't know that we have time for that today. But I do want to ask sort of a broader point that we discussed a bit during the first session, which is what does it mean, what sort of evidence should we be looking towards in deciding whether infringement activity by states is intentional? Does that mean that the state actor has to know what they are doing is unlawful and they do it anyway? Or can intentional mean they intended to do the conduct, but they may have, you know, a reasonable basis for concluding that something is fair use, or otherwise lawful? Mr. Molnar. >> Isaac Molnar: Yeah, so I would view it more as more toward the former. And I will just give you an example of what we do in Ohio. And this is for every state agency, and anyone who asks. We have a fair use assessment. Where if someone wants to use a work in some way. Whether it's for a class, and even for a public records disclosure. Because we are in fact, reproducing, potentially reproducing someone's copyrighted work for a public records disclosure, even for that we go through and assess, or they'll have me assess what we think in terms of whether it's fair use or not. And make a determination. Some of them are close calls, and some of them are clearly fair use in my opinion. But to me that's being careful. I don't think that's being intentional. I think that's the state showing a respect for copyright laws and not necessarily just willfully going out and infringing someone's copyright. ^M00:57:48 ^M00:57:53 >> Mark Gray: Yes, Mr. Laiho. >> Devin Laiho: And you know, earlier I'd mentioned that the small number of complaints that we've seen over the man years. But the other thing that I think is notable, that goes to the question you're asking right now is the intent issue. And the occasional violations that we've seen are typically the result of a lack of familiarity with copyright principles. Or it can be confusing relating to the scope of licenses that either the state or a vendor may have. And I'm not personally aware of a single instance, even of the small number of instances of alleged violations we've seen where an agency intentionally violated an author's intellectual property rights. And one thing I wanted to go to as well because I think it's important is in the first panel, one of the speakers mentioned a situation where copyright information had been removed from an image and that the entity had then used this image with the removed copyright information. And that was the subject of discussion for several minutes. I think it's important to understand that the copyright information may have been removed by a completely different entity. And then placed on a website where that website may even be attempting through the Internet to get people to search for example of free images online. And I think it's much more likely that a state employee is going to be searching free images, finding something that may in fact be a copyright image that they're not authorized to use, but they think they are because the search they did was for free images of whatever it is that they're trying to post on their website. And I think it's important to understand that even in instances like that, where it may appear on its face that there was intent, because copyright information had been removed from an image. It's often the case that it is not the state employee who's actually done that removal. And that they've innocently obtained the image from a different website. >> Mark Gray: Thank you. And then I guess, maybe to I guess in the hypothetical instance, which speaking purely in hypothetical, if a state employee did infringe intentionally and you figure that out during your investigation, you know, what kind of penalties would that person face sort of in the employment context? ^M01:00:01 ^M01:00:07 >> Devin Laiho: If the question is coming back to me on that one, I'm not involved with the employment context of that. Typically what we've found though is that when we've identified that there may be a potential infringement is that the content is immediately taken down. But from the employment side, I don't have any information I can share on that. >> Mark Gray: And Mr. MacDonald, do you have any experience on that either? >> Angus MacDonald: I do not. I have no experience, whatsoever about an employee that has intentionally infringed and what the consequences are because we've never gotten to that point. Hypothetically if there were a situation like that, that would be deemed at the very least of a violation of our university policy, which has the same force and effect of state law. And so, appropriate sanctions might be levied against that individual staff member or faculty member. Moreover, if the decision is to ultimately pay some sort of settlement fee, which I think we probably would in an intentional infringement type of a matter, it would come out of the department funds. And I think the department chair would take appropriate measures against that particular individual for having to pay for a third-party infringement claim. >> Mark Gray: Yes, Ms. Murphy. >> Kristen Murphy: Could I just ask a question here, I mean when it goes to intent, you know, I understand that that's an important component as far as the law goes, or potentially what you're seeking here. But it doesn't change the fact that the copyright gets violated and, in some cases, what might be perceived as I'm following copyright law and I'm using whatever material in a fair use setting, if it destroys the value of the materials, does it really matter what intent is? I mean the cost to the copyright holder is still the same. The materials are now destroyed and they have to go back and they have to create something new. >> Kevin Amer: Yeah, I mean I think what we're trying to get at here is the constitutional standard that the court, the Supreme Court was talking about in the Allen case where it talked about the fact that, you know, not every copyright infringement necessarily rises to the level of a constitutional violation. And that intentionality is relevant to that analysis. Could I just go back quickly to you Mr. Wassom, and then I do want to just to preview we're going to then ask about licensing practices Ms. Levine, I know you've been patient and so we're going to I think probably direct the first question on that topic to you, but just quickly Mr. Wassom, I know in your comments you did discuss this question about what intentionality means in this context and whether it can be distinguished from willfulness. Could you just you know, could you describe your view on that question, and whether you know, what showing you think is required to establish intentionality here? >> Brian Wassom: Sure, very briefly. I would refer you to our written comments. We do have a discussion on the fact that there can be daylight between intending to commit copyright infringement and negligence. There can be a degree of intentionality that rises to a cognizable level that ought to be taken into account without it being an intent to break the law. Especially were the law here is so unclear. But there is case law to support that and I would refer you to the written comments for a more in-depth explanation. >> Kevin Amer: great. Thank you. I think now we would like to talk about licensing practices. And so I'm going to turn it over to my colleague Melinda Kern to, Dr. Bell did you have? >> Dr. Keith Bell: Yeah, I just wanted to respond to Mr. MacDonald. All right, so in the case in California that he spoke of the judge in that case said very clearly that I may very well have had a very good case, but I think the judge did what he was supposed to do because there was a failure on my attorney's parts to put any evidence to the court. And we all know that there's some great people in every field and some people who don't do very well in every field. And we, copyright holders, have to depend a lot on the attorneys who handle matters for us. And it's not easy to necessarily get the best attorneys, a very expensive one. And in the case in Ohio, also, my attorneys filed against the wrong party. And some other factors like that. And those things are going to be cleared up and there's going to be some bad decisions, but there's also been a lot of clear cut issues. And better settlements in cases. >> Kevin Amer: Okay, thank you. I think we're going to move onto licensing practices. So, Ms. Kern can start with that. >> Melinda Kern: Thank you. So the first question that I want to address is basically what role do sovereign immunity and other potential defenses play in choosing whether to negotiate with copyright owners. And I'd like to start with Mr. Laiho, Mr. Molnar, Mr. MacDonald, and then finish with Ms. Levine. ^M01:06:40 ^M01:06:49 >> Devin Laiho: So from a licensing perspective, I mean I think it's important to keep in mind that state agencies, it's very important to make sure that we protect authors' rights. And our office works with state agencies in Colorado to ensure that our agencies are not violating author's intellectual property rights. We do license a lot of content through various state agencies. Because it's important to recognize the value to these authors put into their works. ^M01:07:21 ^M01:07:28 >> Isaac Molnar: Yeah, in Ohio I would say close to none. I mean I can't think of an example in an actual business-to-business licensing situation between a state agency, or a university, or a two-year school where we have suggested or said that we are not going to pay as much because of 11thl amendment immunity. It just, that's not something that would enter a calculation. ^M01:07:54 ^M01:07:59 >> Angus MacDonald: Don't know if it's my turn, but I would echo those other comments, which is sovereign immunity plays no role as far as I'm aware on our licensing practices. System-wide, I did some research system-wide at the University of California we pay approximately $100 million dollars every year in library content. Why would we pay such exorbitant sums if we would just intentionally infringe or have a policy of infringement. Some campuses pay well into the tens of millions of dollars a year. This s just library content. This is separate from a lot of other content that we license for. But again I'm not aware sovereign immunity ever playing a role in our licensing practices or getting a discount on our licenses. ^M01:08:52 ^M01:08:58 >> Melissa Levine: Hi, I can only echo what some of my colleagues have said. And I want to refer back to the previous panel when Dean Smith mentioned that in working both with public and private institutions, he never had an experience where sovereign immunity is discussed as a strategic component of a decision regarding a particular situation. And I've been at the University of Michigan Library for a little over a decade. I've worked at Florida International University, another State University. I've also had the privilege of working at the Library of Congress and the Smithsonian, federal agencies. And never in any of those situations has sovereign immunity come up as a strategic tool for blocking otherwise bad behavior. Michigan currently, in our library, we spend in the range of $29 million on collections. Meaning things that we license and purchase . It's gone up over $10 million in the years that I've worked there. ^M01:09:58 That does not include software, grand licenses, performance licenses, and the millions of other dollars' worth of intellectual property that we purchase and license. This has come up in several themes throughout this conversation. But the university environment, like the state system is an ecosystem. I'm not aware of any state policy encouraging or meeting violation of copyright by public school districts. I find that quite surprising. The school districts also spend lots of money on these materials. And it doesn't make sense that there's intentional infringement that's reckless or widespread. The University of Michigan's Ann Arbor Campus embodies in the range of 100,000 people. So we have about just shy of 32,000 undergrads currently. Just shy of 17,000 graduate students, and about 51,000 employees. All of whom are subject to the law of the state and of the nation. All of whom can either be fired, dismissed, disciplined, expelled under employment rules, under our university policies. And I just I don't see the larger issue vis-à-vis sovereign immunity. >> Melinda Kern: Thank you. Thank you for those comments. So the next question I'd like to ask Mr. Wassom, I'll reference one of the statements in AIPLA's comments basically that said that "State sovereign immunity detracts from content owners' bargaining power to license works to state entities. Because a large percentage of US educational institutions are public or at least partially funded, state-funded. So, collectively those institutions have substantial market power to drive down the licensing fees." So, I'll start with you. My question is kind of a three-part question. Can you provide any specific examples on these practices? Do you believe that ingratiation table is slanted before parties even reach that table? And then relatedly, and I believe some of the panelists before touched on this, is there any evidence of how licensing terms for states differ in terms of those offered to private entities? And I will start with you, and then if we can hear from Professor Murphy, and Dr. Bell, and if Mr. Bynum is on, we'll hear from him as well too. >> Brian Wassom: Sure. Thank you, Ms. Kern. In the interest of time, I'll collapse your questions into one answer and that is we don't have specific data that AIPLA has specifically gathered on that. These are conclusions based on the case law that we've discussed and the anecdotal information we have available to us. And a logical extrapolation from that data. But no, we don't have specific case examples to add to the conversation on that point. ^M01:13:21 ^M01:13:26 >> Kristen Murphy: In the case of Exams Institute, we don't actually seek licenses. We don't go through the procurement offices to be able to do that simply because we operate in such a small area. We're only in chemistry. And so therefore, I've been informed that our ability to be able to seek such license is likely not to be effective. So we don't go that route. ^M01:13:47 ^M01:13:51 >> Melinda Kern: And Dr. Bell, did you have anything to add or? I believe you're muted. ^M01:13:58 ^M01:14:02 I believe you're muted, sir. ^M01:14:04 ^M01:14:08 >> Dr. Keith Bell: I offer for very reasonable licenses for institutions to use my work. The problem is social media. And so, people can license, an institution can license my work for less than the cost of a poster or a book that I sell. And then most often I get from universities are teams. Coaches that are using my work to inspire performance, to motivate performance. But instead of sending it out to 12 people on the wrestling team, or 30 people on the basketball team, or 120 on the football team, they put it on social media and send it out to millions. And it's made it so it's too damaging for me to license for social media, right, but that's what they're using it for. And when they do, of course, they're violating their contracts with Twitter or Facebook. And those contracts are not with me, they're with them. But I'm harmed by those, all right. So when they misrepresent that they own my work to social media platforms, I'm tremendously damaged in that. I'm happy to offer licenses. And I offer deep discounts for licenses for honest use of my work, right. But if they're going to put it out to a million people, I can't afford to license, and they can't afford to buy it most of the time without it being hugely damaging to both of us. >> Kevin Amer: Can I ask I quick follow-up question, I guess primarily to the representatives of states. I mean the clear theme I think that you're expressing is that it's either exceedingly rare or almost unheard of for states to assert sovereign immunity in licensing negotiations. Is there a little bit of a disconnect between that and the fact that states certainly have not hesitated to assert sovereign immunity in litigation. I mean, you know North Carolina obviously took the issue all the way to the Supreme Court. There have been numerous other cases that have been brought to our attention where states have asserted sovereign immunity. So I wonder what your thoughts are in terms of you know, how common and how sort of important the defenses is in practice for states in responding to copyright claims. ^M01:17:11 ^M01:17:16 >> Isaac Molnar: So I think at least from my perspective, that in context of a licensing negotiation, we've already entered into that arrangement, presupposing or kind of acknowledging that the work we're trying to use is of a value to the state. That if we're going to use it otherwise it would be copyright infringement. Where we've asserted, the 11th amendment immunity has been in cases where the cease-and-desist letter is brazenly just of no merit. And that's where we would use the 11th amendment as a way to avoid having to litigate a case that just lacks merit. Where there's been meritorious claims, as I've said, we've settled. Paid $120,000, paid $9,000, recently we just paid $1000, for example of someone who downloaded a picture that didn't have any attribution. So they thought it was okay, they used it. We got a cease-and-desist letter, we paid it out. So I think the 11th amendment from my perspective as a defense is a way for the states to save money against frivolous litigation. >> Kevin Amer: Mr. MacDonald. >> Angus MacDonald: Thank you, Kevin. That's a great question. I see no disconnect and here's why, universities, public universities are copyright stewards. We are copyright owners, large copyright owners, copyright creators, we have lots of faculty that publish. We need to be good adherence to copyright law. Which is why we pursue such vast licensing programs and have such a high volume of staff that are devoted to licensing. I see no disconnect between that and in litigation. Assuming that settlement discussions have not produced a settlement and a litigation occurs, to cite and rely upon sovereignty, among other defenses, because in addition to being copyright stewards we are financial stewards. We are public trust. And if there is a way to you know to articulate sovereign immunity as a basis for dismissing the action when there are other meritorious defenses, as opposed to going through the cost of discovery. And going through a summary judgment phase. Financially, as a financial steward we have to, we have a fiduciary duty to raise a constitutionally protected immunity. And so for that reason, I just don't see any disconnect. ^M01:20:05 >> Kevin Amer: Mr. Wassom. >> Brian Wassom: Two points real briefly. The first is the troubling aspect of the defense which we just heard is that it's the sovereign deciding when the lawsuit, when the claim is frivolous or not. All other defendants have to have the courts decide that for them. And what we're hearing is well we'll offer you what we think is fair. And if you don't like what we think is fair then we'll exercise our trump card with sovereign immunity. The second point, too, is that what we're hearing from a lot of representatives of state agencies that do have very defensible, and very noble, and honorable policies. But back to my original point was the case law encompasses a wide variety of state agencies that are universities, that don't have that respect for copyright and respect for creators. The Allen v. Cooper case of course was a State Board of Tourism or some such thing. There are commissions, foundations, bureaus, all sorts of other agencies out there that perhaps don't have the same respect for copyright that a university would. ^M01:21:10 ^M01:21:17 >> Kevin Amer: Anyone else like to respond to that? Yes, Mr.-- >> Melissa Levine: the sovereign has to agree to-- >> Kevin Amer: I'm sorry I think you cut out for a second there Ms. Levine, could you say that again? >> Melissa Levine: The sovereignty has to agree to be sued, that's how sovereign immunity works. We're still all bound as attorneys if we're attorneys to faithfully apply the law and as Mr. MacDonald said, I'm not a litigator, but there's a responsibility to raise available, legitimate defenses as part of your responsibility as an attorney. But that's all I needed to say. >> Kevin Amer: Mr. Molnar did you have a response. >> Isaac Molnar: Yeah, I mean representing state agencies, we certainly in Ohio respect copyright law through all of our state agencies . And again, I'll circle back to a point I made at the very beginning I would read, it's a case 57 f sub 3rd 985, from a district in Minnesota that outlines how sovereign immunity applies to suits against the state, how it applies to suits against individuals in their official capacity, and how it applies to suits against individuals in their personal capacity. And I would recommend, especially as an IP attorney, become very familiar with suing someone in their personal capacity. That is your way around a lot of sovereign immunity full-stop. ^M01:23:01 ^M01:23:06 >> Melinda Kern: And then, Kevin do we have time for one quick follow-up question. Mr. MacDonald, you mentioned towards the beginning of this panel how I believe you quoted it as corrective measures in terms of when you saw that there was infringement with a radio station and I'm not sure if it was in lieu of payment or what, there was education provided. Do you have any other examples of corrective measures that you've taken when there's infringement? >> Angus MacDonald: Sure. And your recounting is correct. In that particular instance it was actually in lieu of payments. Well of course an injunction, an imposed injunction is a corrective measure that we take. Say we're going to take it down, we disagree with the merits but to resolve this matter swiftly, we'll just take it down. I think that's a corrective measure. We also make promises at times that we won't ever put it back up again. So you know and if copyright owners come to us, and again we are ourselves major copyright owners. You know, if they come to us an offer other creative solutions, we'd be happy to entertain them including financial payments that are less than the sums that are asked for which we think are unreasonable in many instances. >> Melinda Kern: Thank you. ^M01:24:46 ^M01:24:51 >> Kevin Amer: Okay, well we are just ab it over time, but I think we have made up some ground. So I think we are going to close this session. I'd like to thank all of you for participating this was very helpful. Our next session begins at 2 o'clock. So, we will see everyone then. Thank you very much.