^B00:00:10 >> Jordana Rubel: Good afternoon everybody. My name is Jordana Rubel. I am Assistant General Counsel at the US Copyright Office. And I will be leading this panel along with my colleague Julius Mangum. Before we begin the session, just a couple of quick reminders. If you're not speaking, please keep yourself muted, so that we minimize any extraneous noise. And raise your hand either physically or with the raise hand button if you'd like to contribute. We'll do our best to call on you. We do ask that you keep your comments short, just to ensure that you and your fellow panelists are able to contribute to the discussion. And we'll ask probing questions as we're able to, time permitted. This session here is going to focus on existing remedies for infringement of copyrights by state entities. The topics that we hope to cover during this session, first off, include the existing remedies in federal court, the possibilities of bringing claims in state courts, and what are some of the obstacles to bringing claims like those, the types of damages available for claims brought in state court, and then the types of damages that are available -- sorry, and then the risks of concern about frivolous claims that might be brought either in federal or state court. So hopefully, we'll get to all of those topics. Before I ask the first question, I'm just going to ask each of you to introduce yourselves and let us know your affiliation, if any. Mr. Madigan, can we start with you? >> Kevin Madigan: Sure. Hi, everyone. I'm Kevin Madigan. I'm VP of legal policy and copyright council at the Copyright Alliance. >> Jordana Rubel: Thanks. And Mr. Vockell? ^M00:02:12 ^M00:02:14 >> Marc Vockell: Hello, I'm Marc Vockkel. I'm Assistant General Counsel for intellectual property law for the University of Texas System, which is a university system of eight academic and six research institutions. By the way, two of those institutions include those that have contributed to the mRNA vaccine for COVID. So we're pretty proud of that. And I'm also speaking on behalf of the Association of American Universities, and the Association of Public and Land Grant Universities. ^M00:02:45 ^M00:02:47 >> Jordana Rubel: Thank you. Mr. Bynum, let's make sure we have addressed your issues. Hopefully you're there and can speak. >> Michael Bynum: Yes, I'm here. Thank you for being patient. >> Jordana Rubel: Sir, can you just quickly introduce yourself? >> Michael Bynum: Yes. My name is Michael Bynum. I am from Birmingham, Alabama. I'm a book editor. I am currently involved in the biggest copyright lawsuit in the country against Texas A&M University, which is now at the Fifth Circuit. ^M00:03:19 ^M00:03:21 >> Jordana Rubel: You'll have a chance to talk a little bit more about that this afternoon, we promise. Mr. Band? >> Jonathan Band: Hi, I'm Jonathan Band. I represent the Library Copyright Alliance, which includes the American Library Association, the Association of Research Libraries and the Association of College and Research Libraries. I'm also an adjunct professor at Georgetown where I teach copyright law. ^M00:03:44 ^M00:03:46 >> Jordana Rubel: Thank you, Miss Olson? ^M00:03:49 ^M00:03:52 >> Darcee Olson: I'm Darcee Olson. I'm copyright and scholarly communications policy director at Louisiana State University. ^M00:03:57 ^M00:03:59 >> Jordana Rubel: Thank you. Miss Xu? >> Yuanxiao Xu: Hi, I'm Yuanxiao Xu. I'm a copyright specialist at the University of Michigan Library Copyright Office. Our office provides educational information to the university community and the general public. ^M00:04:13 ^M00:04:15 >> Jordana Rubel: Thank you. And Miss Calzada? >> Alicia Calzada: Hi, I'm Alicia Calzada. I'm the Deputy General Counsel for the National Press Photographers Association. Our organization is a trade organization that represents visual journalists of all medium -- digital, newspaper, print, and video as well. ^M00:04:36 ^M00:04:38 >> Jordana Rubel: Thank you, everyone. Hopefully, you see that we have a good mix of people representing copyright owners as well as state entities here. And I'm going to do my best to zigzag where possible so that we get to hear the views of those different stakeholders throughout the session. I want to start off by talking about the remedies that are available in federal courts currently if there's infringement of a copyright by a state entity. You're probably aware that the ex parte Young doctrine allows federal courts to hear claims against state entities if the only remedy that is sought is injunctive relief. So my first question is -- and we'd like to hear both sides of this. Why or why not? Why is an injunction a sufficient remedy? Or why is it not a sufficient remedy for copyright infringement? And we'll go ahead and start with Mr. Bynum, if he wants to weigh in on that issue. ^M00:05:45 ^M00:05:47 >> Michael Bynum: Well, I think Justice Breyer and justice Kavanaugh said it best at the Allen versus Cooper hearing back in November of last year. That if you've gone the day before or the week before, and stole it all, it doesn't matter after the fact to get any type of injunction because the damage is already done. And that is the problem that I've had against Mr. Vockell's friends over in College Station, is that after they came and stole my book, I don't have any other thing to be able to protect because they've already stole it. And after the fact doesn't do any good. So the only way I can go after them is to try to seek some type of proper damages. And every time we've tried to do that, whether it's going after them in state court or federal court, they keep waiving sovereign immunity. And you know, you can't have it both ways. ^M00:07:02 ^M00:07:04 >> Jordana Rubel: Thanks, Mr. Bynum. Mr. Vockell, why don't we jump to you? >> Marc Vockell: Okay, thank you. And I should point out at the outset, one of the institutions that are within the University of Texas system, Texas A&M is not one of them. There's a separate University of Texas A&M system, a separate University of Houston system and others within the state of Texas. I would say that the injunction remedy has received -- kind of it's been minimalized. But I think you shouldn't minimize the value of injunctions in a lot of intellectual property matters. In the patent context, for example, when the Supreme Court in 2006 ruled in the eBay case, that injunctions were going to be much more difficult to get for patent owners, patent owners litigated as hard as they could. They tried to engage with Congress because they didn't have the leverage that they wanted. Values, settlement values in patent cases dropped precipitously. And a lot of patent owners actually filed suits voluntarily in the International Trade Commission, where the only remedy is an injunction. So while there may be situations like Mr. Bynum mentioned the Justice Breyer example where there are some situations where the injunction might not be the complete remedy to all harms -- in a lot of situations it's a very strong remedy. And it can drive good behavior and it can drive high settlements. ^M00:08:35 ^M00:08:38 >> Jordana Rubel: Miss Calzada, do you want to weigh in on this question? ^M00:08:41 ^M00:08:42 >> Alicia Calzada: Yeah, sure. I'll just say that with respect to photographers, an injunction doesn't remedy the harm to the market that's occurred when someone has used your photograph. And those that want to license your work suffer market harm, because they haven't had to pay for it. Or they have paid for it and their competitors, which are sometimes state entities, don't pay for it. And additionally, it harms the relationship that the photographer has with the client, when their client pays for their work, pays to use their work, and they see other people using it for free or in violation of an exclusivity license. Add that particularly with photography, copyright can be a bit of a whack a mole problem. You know, you get one down, another one pops up and a lot of photographers talk to us about how they feel like they're really playing whack a mole. Playing whack a mole in federal court is an expensive proposition and it's really not something that most photographers have the resources to engage in, or the willingness or interest in engaging in. These are people that do very hard work, and any time they spend on infringement takes away from their business model. And so when they can't get compensated for their work, it's a huge business harm to them and their paying clients. ^M00:10:11 ^M00:10:15 >> Jordana Rubel: Miss Olson, would you like to weigh in on that question of injunctions? ^M00:10:18 ^M00:10:22 Oh, please make sure to unmute yourself. >> Darcee Olson: One of the things that was brought up earlier in addition to injunctions is the opportunity under ex parte Young to bring claims against individuals. If you aren't going to bring a claim against the university, I believe that's Mr. Bynum's situation, is that the athletic department was deemed not to be responsible. And he's now in a situation where he's claiming against a single individual for harm. I would think that there would be, in addition to injunction in his case, a nondisclosure agreement that I presume would be in place. And so there would be contract remedies. So again, I think there's a panoply of things under state law that would provide adequate remedies if we're just looking for a remedy to a harm as opposed to statutory damages that go beyond what the actual harm was. ^M00:11:24 ^M00:11:26 >> Jordana Rubel: Yeah, those are good points. And we will definitely hit on both of those as well. We'll talk to Mr. Bynum in just a moment about the possibility of bringing suit against an individual in his personal capacity. So let's put a pin in that for just a moment. Mr. Madigan, let's jump to you. I will point out as I'm passing the mic to you, I'm looking at the survey evidence. I believe that the survey indicated that 50% of the participants said they would be willing to sue for an injunction only. And 9% said they would not be willing to sue for an injunction only. And there are a substantial number of respondents who said they didn't know. So hopefully you can touch on the survey responses when you opine on this question. ^M00:12:19 ^M00:12:21 >> Kevin Madigan: Yeah, I'd be happy to. I actually just really quickly wanted to first comment, though, briefly on the last panel, because I don't think there are a lot of copyright owners represented. We heard a lot from the last panel from university representatives about the compliance programs and robust copyright education programs that they have. And I have no doubt these programs and policies are mostly adhered to. The problem is that infringement does happen. And just because the programs exist or because universities are engines of creativity, it doesn't mean that they shouldn't be held accountable or to a lesser standard when infringement does happen. You know, these policies sound positive. But we also heard hostility towards basic elements of copyrights, such as the availability of statutory damages, as if it were something that was undisturbed or predatory. So I just wanted to point that out. But as to injunctions, you know, yes, those were the results of our survey. But when we then asked the folks who would not be willing to pursue injunctions why they wouldn't, we heard a lot about how expensive they are, how they don't offer perspective relief, and how they do nothing to remedy for past injuries. As Miss Calzada said, injunctions don't make up for lost market share or lost licensing opportunities. And they, you know, require ongoing monitoring to ensure compliance. And I just say as to ex parte Young scenarios, you know, while an injunction may stop infringement by an individual actor, it does nothing to prevent another state official from engaging in the same infringement down the line. And so I just don't feel that injunctions alone are adequate remedies at all. ^M00:14:10 ^M00:14:12 >> Jordana Rubel: Xu, do you want to add anything on this point? ^M00:14:14 ^M00:14:16 >> Yuanxiao Xu: Yes. First, I would like to note that 14th Amendment doesn't guarantee people's right to statutory damages. And I think Mr. Madigan mentioned how injunction is inadequate in the sense that it doesn't discourage states from behaving badly so to speak. But we should note, for example, in the Georgia State case, they are the prevailing party and they still had to pay $3 million defending their claim, while the plaintiff only had to pay a little more than $100,000. And to name another case that was on Mr. Bynum's list, one of the two cases in the past 20 years filed against The University of Michigan, that in 2015, they wanted only $500 from us. And we spent more than $10,000 defending ourselves, because we perceived them as a bad actor. They still wanted us to pay when we already had a license. So the fact that injunctive relief is available is a deterrent to states infringing. ^M00:15:26 ^M00:15:32 >> Jordana Rubel: Okay, and we will get back to specifically talking about statutory damages, because that does seem to be a point that people on both sides are quite concerned about, appropriately. So we will touch on that in greater detail a little later in the conversation. Let's talk about the second part of types of relief that are available in federal court, which Miss Olson touched on a few minutes ago, which is the ability to sue an individual in their personal capacity. Of course, the standard requires that you're only able to do that -- or they would only lose their qualified immunity if you can show that they violated clearly established law. I know that Mr. Bynum has brought claims against at least one individual in his personal capacity. Maybe you can describe to us, what was the process of identifying that individual? And why did you seek to go that route? And why you believe or maybe don't believe that suing an individual in their personal capacity, could be a sufficient remedy, as I think Mr. Molnar was pointing out in the last panel, that this is sort of the answer to the problem. So I'd appreciate your response to that. ^M00:16:54 ^M00:16:56 >> Michael Bynum: Well, in my situation, the person that was heading up the actual PR athletic department, PR department, that was the main culprit in the stealing actually sent me an email and admits to everything that he did. And the process of what they went through ended up on the internet. It was all there in black and white. And so that part was easy. And we go to court, and the judge rules that his government immunity's gotta go, he strips him of it. And then a year and a half later, he decides he doesn't like that idea. And so he decides that he wants to file to the Fifth Circuit, and try to get his government immunity back. Well, you know, you wait too late and don't deal with that, then that becomes a big problem. But he's now trying to claim that he does have his immunity. And, you know, we're back to that whack a mole problem, is that every time you turn around, everybody tries to keep claiming some type of immunity. But when he admits to you in black and white, yes, I put this on the internet, yes, I had my secretary retype this into our computer system -- you know, when they admit everything in black and white, and then they go out and lie to the court, you know, it just gets crazy. It's just like, it's some story that you would never believe in real life that could happen, but it does. ^M00:18:37 ^M00:18:39 >> Jordana Rubel: Any other copyright owner side want to respond to the argument made by Mr. Molnar in the previous panel that, you know, basically, this is the solution to the problem of sovereign immunity. And then Mr. Vockell, I did see you. I'll make sure we get you on this point as well. ^M00:18:57 ^M00:19:05 All right, seeing none, we'll go to Mr. Vockell. >> Marc Vockell: Yes, well, like I said, I'm not litigating Mr. Bynum's case. But I wanted to just make sure some facts that are on the public record, the litigation record are also on the record before the copyright office. Mr. Bynum's demand of Texas A&M was $780 million. So it is the type of case that we discussed earlier, where sovereign immunity is important to protect taxpayers and the state and the state's role as a public steward. And secondly, just with regard to the litigation, there is a live bona fide dispute as to who is the owner of the copyright, and the actual author of the material is not in the case. So just wanted to make sure that's on the copyright office's record as well. ^M00:19:54 ^M00:19:56 >> Jordana Rubel: Thank you. Mr. Band? >> Jonathan Band: I wanted to add that obviously, in all of these cases of infringement or alleged infringement, one never wants to go to court, right? Going to court should be the last resort. It's expensive. It's time consuming. And even if you have, you know, the facts on your side and the law on your side, it's still slow, because that's the way that the judicial system works. And what we've heard on the previous panels is that state agencies generally, but libraries and universities, in particular, are extremely responsive. So you don't have to go to court to get an injunction whether it's under ex parte Young or some other motion. You simply raise, let people know that this is a problem. And you know, with all the evidence that has been presented thus far shows that universities, libraries, and state institutions generally are extremely responsive and stop the infringement. Now, that doesn't take care of all problems. But it takes care of a lot of problems. And so I just wanted to make that point that there is something that happens before litigation. And that, again, there's been no evidence that there is widespread disregard of the rights of rights holders when people say, yeah, there's a problem here. ^M00:21:30 ^M00:21:32 >> Jordana Rubel: Yeah, I do hear that. And I think that university libraries have been quite well represented in this panel and in also the previous panels. But we have noticed that they really are the most active participants from the state side. And it raises the question about whether there are other state entities that are as familiar with or who have policies that are as robust and are doing as good of a job as all the people who've spoken from the state side have presented. Because we have heard examples this morning and throughout the day of people whose copyrights are being infringed and that when they do raise the issue, they're not -- they are coming up against responses that point to sovereign immunity, perhaps, among other possible defenses or limitations. ^M00:22:30 ^M00:22:32 >> Jonathan Band: We did hear from at least two attorneys who represent the state, right -- they're from attorney general's office, not from universities. So they were responding to the breadth of claims against the entire state. One was, I guess, the state of Ohio, the other state was the state of Colorado. So we're not talking about just the universities, but the states as a whole. And again, all the evidence we've been receiving is very scanty anecdotal evidence. Even the Copyright Alliance survey, they say they represent 1.8 million rights holders and, you know, they received 150 examples of infringement, you know. Google, in their transparency report indicates that they receive 90 million notices, DMCA takedown notices every month, 90 million. What we've heard is, you know, these, you know, an entire university receives maybe five takedown notices in an entire year. And some of the libraries receive no takedown notices. So, again, if the issue here is widespread harm, you know, widespread infringement, I mean, in 2020 the amount of infringement we're talking about here is negligible. ^M00:23:56 ^M00:23:58 >> Jordana Rubel: I appreciate your comments, Mr. Band, but I do want to keep us focused on our current topic, which is remedies. We have discussed that point and other similar to that this morning. So I am happy to let somebody respond to that if they feel like they have something they want to add, but then I'm going to focus on talking about remedies. Mr. Madigan, do you want to jump in quickly? ^M00:24:19 ^M00:24:21 >> Kevin Madigan: Yeah, no, it sounds to me like Google facilitates a lot of infringement. But you know, I talked about the survey already today. I don't think we need to spend much more time on it. But out of those 150 responses, you know, people were identifying several instances, sometimes hundreds each. So, you know, we can talk about that if we want but, you know, just to go back to the ex parte Young. I mean, these have been recognized over the years, you know, in congressional hearings and by the copyright office as really incomplete remedies. I mean, they don't compensate for past wrongs. And it's unclear whether they deter future infringement. And, you know, I think these injunctions, they have to be coupled with the other available remedies under the Copyright Act. Otherwise copyright owners are being deprived of their rights. ^M00:25:19 ^M00:25:24 >> Jordana Rubel: Okay, one more question about existing remedies right before we move to state courts. A few of the comments raised the DMCA as a set of procedures through which copyright infringement issues are resolved. Does anybody want to talk about either side of the issue, whether how the DMCA takedown procedures weigh in, to whether there are currently sufficient remedies for copyright infringement by state entities? ^M00:26:03 ^M00:26:08 >> Alicia Calzada: Well, I can state that, you know, while we haven't surveyed our members specifically on DMCA and state entities, just generally speaking, you know, we hear a lot of responses about the DMCA being inadequate. And I know there's completely different Copyright Office studies and projects on exploring that, but I think you can't bring that up in this context without recognizing the general inadequacy of the DMCA to provide relief to copyright holders. And I thought of one more thing to mention about the injunction question, which is that, you know, so as journalists, we work in the First Amendment space a lot. And whenever there's an injunction that relates to speech, it is always very, very specific and tailored, because courts are very reticent to issue broad injunctions related to speech, prospectively. You know, they are generally of the opinion that speech that is harmful from the past can be punished, but they don't like to prospectively punish or ban future speech. And so any kind of injunction that you're going to get that relates to speech, which copyrighted works are speech, they're going to be very specific and tailored. And so the ability -- again, I haven't studied this issue, but I would question the ability to get broad injunctions about a state using a work or the works of a particular person. You know, I think it would probably have to be very specific. Maybe somebody else has examples that contradict this thinking. But to me, you know, you're not going to get a court to say the University of Houston can no longer commit copyright infringement. You're going to get the court -- if you sue for a successful injunction, you're going to get a court to say, you know, they're going to have to stop using this specific work. And it might not even be the whole state. It'll be a specific, whoever that specific defendant is and perhaps even in specific ways. And so I think you really have to be cognizant of the fact that an injunction like that would be a minimal remedy in terms of preventing future harm. ^M00:28:31 ^M00:28:35 >> Jordana Rubel: Does anybody want to respond to that or to the DMCA issue? ^M00:28:40 ^M00:28:44 Mr. Band? >> Just quickly on the DMCA issue, it is a very powerful tool for rights holders. So when I represent -- in another capacity, I represent publishers. And, you know, when I send a takedown notice, the material comes down right away and the publishers are very happy that it happens so quickly. So it is a very powerful tool. Again, it doesn't take care of all situations, but certainly if materials are online, and it again is a way of getting a relief without having to go to court, and without even having to send a cease and desist letter, right? You just send a DMCA takedown notice, and the material disappears. My clients think I'm brilliant, but it's, you know, it's really very easy. ^M00:29:38 ^M00:29:40 >> Jordana Rubel: Mr. Madigan? >> Kevin Madigan: Yeah, I disagree that the DMCA gives copyright owners a powerful tool to deal with alleged state infringement or any infringement for that matter. The Copyright Office's recent 512 report and the continuing DMCA focused hearings before Congress have all made an abundance clear that the notice and takedown system is not an effective mechanism for copyright owners to combat infringement. Similar to an injunction, it may allow a copyright owner to stop one specific instance of infringement, but it doesn't compensate for the harm done, doesn't deter against future infringement. And the notice and takedown system is a constant uphill battle for copyright owners against recurring infringement. And I just disagree that it's a powerful tool to combat or deter infringement. ^M00:30:31 ^M00:30:34 >> Jordana Rubel: Miss Xu? >> Yuanxiao Xu: Mr. Madigan repeatedly mentioned how many instances of infringement there are. And I wonder if they are actual infringement cases. Because in our own experience, we receive dozens of threats of claims each month, and 90% of them are just frivolous claims. I know we will get to that later on. But I just wanted to address this now because the majority from our experience, we already have a license. The companies representing the rights holders are not aware of those licenses, and they assume we're infringing. But actually, we're not. And then a lot of the other cases, we are relying on strong fair use. And we all know that fair users are users, right? And if we're using something based on fair use, we're not actually infringing, even if we're doing it without permission. So I just wanted to question if those instances you refer to are actual infringement cases. ^M00:31:35 ^M00:31:38 >> Kevin Madigan: Sure. You know, right, we talked about this a lot already in the first session. But just to say it again, I think, you know, we don't know if all the allegations are completely legitimate. But fair use will not be affected one way or the other, whether state sovereign immunity is adjusted or abrogated. Those limitations and exceptions will continue to exist regardless of what happened. So you know, I've heard a lot today from universities that, oh, what we're doing is fair use. And, you know, that's fine. And nothing that happens in the future with state sovereign immunity will affect the universities or other state entities' right, to invoke that defense. ^M00:32:25 ^M00:32:28 >> Jordana Rubel: Miss Olson, did you have a comment on this point? >> Darcee Olson: Yeah. Within sort of DMCA adjacent, within our vendor contracts, there's always a provision that allows us to or requires us to act swiftly if there's any kind of impropriety detected, any kind of misuse, whether it's an infringement, whether it's excessive downloads, that we will shut off a user's account. And when we get complaints, one instance recently was spider hacking. And I got an inquiry whether spider hacking was a copyright infringement, because nobody was quite sure what it meant. It's a way for hackers to overload a server. And it turns out that if you're a grad student and you put a search term into your research, you pull up a list of articles. And as you click to open the articles in Google, they each open in a separate tab. If you go back through and you open the tab, scan it, close it, open the next one, scan it, close it, it will trigger this spider hacking server overload report back to the vendor, who then contacts us. And apparently, this is something that within IT is a pretty common occurrence. There's nothing being done wrong. The student is doing legitimate work, using resources that the library has licensed. It's a technical issue that crops up, but it results in students and faculty having their research stopped because the university doesn't want to risk that anything's going on. And again, this is built into our vendor contracts. ^M00:34:07 ^M00:34:13 >> Jordana Rubel: I think I'll jump around a little bit, because we did hit on some of the state concerns about litigation. So let's go ahead and touch on some questions related to that. And then we'll go back to some of my other topics related to claims that can be brought in state court. We did hear in the last panel, and has already been addressed a little bit in this panel as well, some concern from state entities, that there would be a chilling effect particularly on legitimate activities of state research institutions if they had to worry about claims for damages being brought in federal court. So I would like to hear from state entity representatives. If you can be as specific as possible, we did hear in the last panel about the Hoppy Trust case. And I think we heard a little bit of other discussion about digitization efforts. But whether it's those kind of digitization efforts or other kinds of specific research activities that you're fearful might be chilled if sovereign immunity were abrogated. ^M00:35:26 ^M00:35:31 >> Marc Vockell: I can speak. >> Jordana Rubel: Mr. Vockell? >> Marc Vockell: I mean, I think it goes beyond, you know, huge new initiative to day to day instruction. And I know, you know, there was a discussion on the last panel, well, does it not apply to private institutions? But there's a whole different deal with state institutions versus private institutions. I mean, we're created by the state constitution, we're governed by a board of regents, appointed by the governor, we have very specific rules, we're open to subject records. So there's certain things that we have to do or we're restricted from doing because we're state entities. We have a public charge. We're seeing, as you know, a lot of the institutions in my system serve historically underserved communities, first generation students. So, for example, when we had to go online with COVID, there was a huge need to put a lot of our instruction online. And, you know, it would have been a huge problem if our institutions would have thought, well, we can't do this online research out of, you know, the fear of copyright infringement. So I think it is important just in the day to day operation not to have our activities in serving as state institutions chilled. ^M00:36:48 ^M00:36:51 >> Jordana Rubel: Miss Olson? >> Darcee Olson: I also at the beginning of COVID got a landslide of questions from faculty who were terrified as they were trying to move ground-based courses online, because they knew that the rules for what they could hand out in an in class -- what they could use as an in class handout, they would run into problems with in making materials available online. They knew that students had gone home for spring break, and then been told don't come back. So students who had purchased textbooks didn't have access to the materials they had purchased. And faculty were frankly afraid to make those materials available because of the risk of being accused of infringing if they photocopied a chapter of a book and sent it to a student so that they could keep up with their work. And as Mr. Vockell said, this was a tremendous problem. And something that left faculty very afraid. I've received a lot of questions about, is something safe to use? Is something within fair use. I have never ever had a faculty member come to me and say, hey, can I get away with this under sovereign immunity? It's just not -- it's not what any of them are thinking. It's not something that's going to help any of them with promotion and tenure. That is faculty's goal: how do they get to promotion and tenure? And it's not by bringing a lawsuit onto a university. ^M00:38:12 ^M00:38:15 >> Jordana Rubel: Miss Xu? >> Yuanxiao Xu: So following that train of thought, frankly, I don't think we will see a lot of behavior changes, at first, at least from state actors. Because we already act very conscientiously and responsibly, because of what Mr. Vockell mentioned. We are very transparent, our record is transparent, we are subject to the state legislature, we have to act responsibly. We can't just go about infringing copyrights, or we wouldn't even get any funds from our state legislature anymore. People will be upset with us. There are lots of responsibility, accountability that only state institutions are subject to. And I think realistically, what we will see is a lot more misguided complaints by copyright holders, not even because they are copyright trolls -- just because lots of people are uneducated on what copyright is. And that's what we already see. And right now, people tend to be reasonable when we try to talk to them about why we're using something. Or if we made a mistake, we negotiate a reasonable licensing fee. But I'm afraid that if we abrogate sovereign immunity, people will be lured by this promise of statutory damages, and they will be more prone to just keeping their suit going, even though it's not a good suit. And you know how expensive it can be for us to defend those suits. So we have to worry about the extra burden to taxpayers this is going to cause. ^M00:39:52 ^M00:39:53 >> Jordana Rubel: Yeah, that leads directly into my next question, which does have to do with another concern that we saw discussed in the comments here today about concerns about frivolous litigation. And that maybe what was driving that concern is this dangling carrot of statutory damages or what's perceived as you know, a prize of statutory damages. So I'm interested in hearing additional thoughts about that point on both sides. You know, do we think realistically, this is a realistic fear that we'll unleash a flood of frivolous litigation? Or do we think that maybe this is a little overblown? Mr. Band? ^M00:40:46 ^M00:40:50 >> Jonathan Band: So I think the fear of copyright trolls is real. Most of the lawsuits that are brought in this country are in fact, you know -- most studies have shown that they're just in terms of the volume, that most lawsuits sort of do fall within the, you know, what many would consider to be copyright trolls. And it is, you know, the lure of statutory damages is significant. And it really does drive much of the behavior on both sides, meaning it drives -- it incentivizes rights holders to initiate litigation or to put unreasonable demands, and we've heard many examples of that throughout the day. On the other hand, the fear of statutory damages does have a chilling effect. I routinely counsel clients, and you know, whether it's a technology company or, you know, private universities or public universities. And, you know, when I start counseling, you know, I do say, and oh, by the way, you know, if you're thinking of doing X or Y, I mean, you do have the possibility of statutory damages. Obviously not right now if it's a public state entity, but if it's a private entity or private university, you know, the threat of statutory damages is enormous. We're dealing again -- we're in 2020, we're dealing with digital, we're in the digital age where the number of works we're talking about is vast. And so for the Library Copyright Alliance, and Brandon Butler mentioned this before also for the Software Preservation Network in Allen v. Cooper. And we were talking about the chilling effect statutory damages would have on digital preservation efforts. So we're talking in the collections of libraries and archives, we're talking about hundreds of millions, if not billions of items and digitizing those. If you start doing the numbers, it gets very big very quickly. And it's very scary. And if you are a general counsel's office at a university, and you're saying, you know -- and the library comes to say, well, we want to engage in this digitization effort, and they start doing the numbers on the back of the envelope. We'll say, well, gee, that's all very well and good, but what you're proposing will subject us to a trillion dollars of damages. I don't think so. Or, you know, start with the public domain stuff. And then, you know, maybe you can work your way up to 1930 or 1940. But forget about 1950 or 1960. So it's a very real threat. ^M00:43:46 ^M00:43:49 >> Jordana Rubel: Mr. Madigan. >> Kevin Madigan: Yeah, so I'm not aware of frivolous claims or the lure of statutory damages currently chilling the work or progress of private universities who have no sovereign immunity, nor is the fear of statutory damages chilling their ability to progress and do good work. You know, for universities to say that we can't reach our -- sorry, for state universities to say that we can't reach our full potential without, you know, bending the rules to the detriment of people who copyright is meant to protect -- there's an argument that can be made by anyone or any private organization, you know, a for profit, online user-generated content platform could reach its full potential by finding loopholes in the law and bending the rules. But we try to stop that from happening. And I'm not sure that private universities are really being held back from reaching their full potential because they're required to play by the rules. And to examine example of Hoppy, I'm not sure if choosing not to participate in a project that at the time wasn't clear whether it was fair use or not, is really an example of keeping private universities from reaching their full potential. ^M00:45:02 ^M00:45:06 >> Jordana Rubel: Miss Calzada, did you want to weigh in here? >> Alicia Calzada: Yeah, I heard a lot of commentary earlier about -- I don't know if you'd call it testimony, but a lot of people speaking about how these universities are taking work down, but they're not compensating for past use. So I don't hear fear of statutory damages. I hear fear of even just paying what it is worth to use a copyrighted work. So it's hard for me to accept the statutory damages worry, when I don't hear people even willing to pay what a work is worth. ^M00:45:46 ^M00:45:51 >> Jordana Rubel: Mr. Vockell? >> Marc Vockell: Yes, I heard a lot of the institutions -- replying to Miss Calzada -- who said, like our institution that if there is a case where there was an actual infringement and compensation is appropriate, we will negotiate and we will pay a fee. So I don't think there was anybody saying that universities should never engage in paying anybody retrospectively, when they've inappropriately used copyrighted material. ^M00:46:22 ^M00:46:23 >> Alicia Calzada: I heard several say that when they were notified of an infringement, they took it down. And if they wanted to use it in the future, that they would pay for it, but that they weren't settling on the value of the previous use. And I'll add that with sovereign immunity, taking any level of a stick out of the equation, the normal market force of offering something that has value and negotiating over what that value is, is completely gone. You know, in a sense, all that's left is to say, I guess, you know, we're going to have to take whatever is offered, and that's not really market forces at work. ^M00:47:07 ^M00:47:12 >> Jordana Rubel: Mr. Bynum, do you want to speak at all about the importance of being able to obtain statutory damages from the perspective of a copyright owner? ^M00:47:21 ^M00:47:23 >> Michael Bynum: Well, I mean, first of all, I have a tremendous amount of respect for libraries. I've spent probably 25,000 hours in libraries doing research during my career. And libraries are, you know, a big part of any community, any university. It's the center hub of what's important. And you know, and most of the time that I've seen regarding -- libraries are rarely the ones that have done anything wrong. But the real damages should be like, for example, in my friend Jim Olive's case against the University of Houston, they knowingly put his photograph on four different websites. They supplied that photograph to be used in an advertising campaign to support the University of Houston business goal. I mean, I don't know how far I've seen you can go in doing something, yet the University of Houston does not want to stand up and pay Jim for illegal use of his photographs, which is the only proper thing to do. And you know, so there has to be some accountability to hold, whether it's a university or a state agency or somebody accountable. And the case that's most, you know, unique about this is the case against the Houston Interscholastic School Board. That recently there was a $9.2 million judgment and the only reason that case ever got as far as it did is that the law firm representing the Houston school board forgot to claim sovereign immunity. ^M00:49:16 ^M00:49:19 But at least in that case, we're able to find out how the Houston school board did all this amazing amount of copying, and that school principals and other people that you should hold to account were not worried about sovereign immunity, and they just let people be reckless. And that you know, there are stories like that everywhere. The State of Texas, for example, is the number one intellectual property infringer in the country for the last 20 years. There was more infringement against the state of Texas entities from 2015 to 2019 than for the past 20 years against the state of California, the number two infringer. You know, people have to be held accountable when things go amok. And we need to, you know, let them know that there are consequences. And that's what I've been fighting for. It's what Jim Olive's been fighting for. It's what Rick Allen has been fighting for. You know, and other people like that across the country. We're just trying to stand up and say, no, you cannot do this. This is not right. ^M00:50:37 ^M00:50:40 >> Jordana Rubel: Thank you. Mr. Bynum. Miss Xu, did you want to add something else about with respect to statutory damages? >> Yuanxiao Xu: Not directly on that point, but I noticed that some people have repeatedly mentioned how university libraries are overrepresented, so to speak here. I think I can explain that quickly. It's because we are by and large in charge of licensing materials. For example, our library last year spent $29 million on licensing materials. That's not including software and all the other schools' individualizes. I think that's why when we talk about university infringing, we as the library feel personally, you know, involved in this topic. It's not just that the libraries are not good. We have good behavior. So you know, we can stay out of this kind of thing. And I'm not sure what topic we were on right now. I thought we were on frivolous claims. Are we past that point, or can I go back to that? ^M00:51:44 ^M00:51:45 >> Jordana Rubel: No, you're welcome to make another point about that. >> Yuanxiao Xu: Okay, so I mentioned briefly earlier about the Campiha code case -- I'm not sure how to pronounce that. That's listed in one of the cases in I think Mr. Bynum's spreadsheet. >> Michael Bynum: I'm familiar with that, yes. >> Yuanxiao Xu: Yeah. So that case, I think they actually filed against seven institutions. And they were demanding $500 from us, even though we already had a license to use their material. So when we learned that they are just throwing these threats against all these our sister institutions, we decided to defend the case. And that case, even though we only hired a local law firm instead of a leading national firm, it still cost us more than $10,000. So to me, that's a good example of a frivolous lawsuit. ^M00:52:42 ^M00:52:45 >> Jordana Rubel: Mr. Vockell, did you have another comment? >> Marc Vockell: Yes, I was just going to -- I believe Mr. Bynum was speaking about the Dinastudy case that was on his list. It was Dinastudy versus -- >> Michael Bynum: Yes. >> Marc Vockell: Thank you, sir. It was, you can see that case at 325F sub third at 767 out of the Southern District of Texas from 2017. That's a case where sovereign immunity was not a defense. And under Texas law, I think that's something we need to consider. You know, state to state there's different laws. And it kind of goes to the issue of state remedies that the Texas legislature has different kinds of governmental immunity for different types of subdivisions. So a school district is not considered an arm of the state. And so you know, that's a case in several of the Independent School District cases by Dinastudy on the list, are ones where there were settlement, as Mr. Bynum noted, nearly an eight figure settlement. ^M00:53:51 ^M00:53:53 >> Michael Bynum: But when you stop and look, Houston school board a year and a half earlier won another case because they did use the sovereign immunity defense. And that was a case decided by Judge Rosenthal, the chief judge in Houston. And she wouldn't make a mistake. And if she rolled that that was a sovereign immunity case, she knew what he was doing. And then a year and a half later in the other case, the Bracewell law firm forgot to do this. And that's what came up later. After the decision was made, all the hullabaloo came out and the stink, what happened on that school board and how this was allowed to happen like this. You know, the lady in Marble Falls that won the case. She got lucky. And I'm glad it worked out good for her. But, you know, as her attorneys explained to me, you know, in all likelihood if they had been doing -- the Bracewell firm had been doing their job properly, they would have filed a sovereign immunity just like the other case done by another law firm on behalf of the Houston school board, and they won. Bracewell didn't do that, and they lost when they got faced with the facts. That's the real story. And when we go to court in New Orleans, your friends in conversation are going to find out what the real story is. ^M00:55:32 ^M00:55:34 >> Jordana Rubel: I think this is a good segue to talking about asserting claims in state courts. So I guess we're backing up in some ways. We have talked about available remedies in federal court. A lot of the comments did mention that there are remedies potentially available in state court. But I want to walk through some of the potential obstacles to bringing claims in state court and hear a little bit about folks' experience trying to assert those types of claims, or anecdotes that they might have heard from copyright owners trying to assert claims in state courts. So I want to start with preemption, which I think is probably the biggest obstacle. To what extent does preemption affect the ability to bring claims that are similar in substance to copyright infringement claims in state court? ^M00:56:36 ^M00:56:40 >> Alicia Calzada: I can speak >> Jordana Rubel: Miss Calzada? >> Alicia Calzada: Yeah. And before I get into the detail of that, I just want to say the term copyright troll has kind of gotten out of contro, as a pejorative way to describe copyright owners who have chosen to pursue their rights. And I think it's important to think about copyright owners as people who have ownership of intellectual property and have rights. And what I wanted to talk about, NPPA filed an amicus brief in the case of Jim Olive versus the University of Houston. And in that case, Jim Olive is an aerial photographer. These particular photos, he had to rent a helicopter, and he suspended himself from the helicopter with a harness to take these very unusual and unique photographs. They were infringed by the university, which removed the copyright and attribution information and used it on several webpages promoting the business school. So this wasn't a library or scholarly use. This was marketing, something that every business entity in the state uses or does on some level. So there's no fair use question here. And the Fifth Circuit at the time had already held that sovereign immunity protected state entities from copyright infringement suits. And so he filed a state law takings claim, and the state did file a plea to the jurisdiction arguing that the claim was preempted by the Copyright Act. And it wasn't a valid takings claim. And the district court initially denied, pleaded that jurisdiction, but an intermediate appellate court concluded that copyright infringement was not a takings claim. And they had an extensive discussion in the opinion about preemption and how copyright applied to this case, and how sovereign immunity fit into copyright infringement claim against a state entity and ultimately held that it was not a takings claim. ^M00:58:45 ^M00:58:47 >> Jordana Rubel: Yeah, that's a great example. And we will discuss that specific case and the availability of a takings claim in just a moment. Mr. Band? ^M00:58:57 ^M00:58:59 >> Jonathan Band: Yes, so preemption is not a problem in the vast majority of cases. And that's because in the vast majority of cases, again, we're talking about, we're in 2020 -- the vast majority of the cases the content is licensed by the state entity. You know, whether it's a college university, a state government, whatever it is, they're licensing the material. And so there's always a contract action. And, you know, even though I might disagree with some of the jurisprudence, the preemption jurisprudence with respect to shrink wrap licenses and click on licenses and browser app licenses and so on, almost all that -- typically, especially in an interaction when consumers aren't involved, courts are not preempting those claims. They're finding that there is an extra element. And so there is a contract action in so many of the cases we've talked about. You know, even today, there was a contract action. We've heard about, you know, the American Chemical Society and these tests. Well, those tests were licensed. And so there is a licensed action that could be brought, a contract action. in some of the other cases, the only cases that -- we are talking about some of these cases, like, you know, the about the photographer hanging out of a plane, that is the oddball. That is the exception. That is the outlier case in 2020. And 2020, I wouldn't be surprised if 95% of the content that ultimately is the subject of any kind of dispute whatsoever is licensed and could be resolved or could be addressed in in state court, or in federal court, even under a breach of contract theory. So no preemption. ^M01:00:54 ^M01:00:56 >> Jordana Rubel: That is a theme that we saw in the comments. The notion that the increased digitization of copyright works made it less likely that a claim would be entirely preempted because of the availability of a breach of contract claim. >> Michael Bynum: Can I add one thing, please? >> Jordana Rubel: Yes, please. >> Michael Bynum: Yes. All right. The most famous copyright case of the last 25 years, is the Denise Chavez case against the University of Houston's Art Publico Press division. And it made three trips to the Fifth Circuit. But at the end of the day, her attorney David Gunn, who is with the Beck-Redden firm now, but he represented her in all three cases. And today, he will tell you that case should have been no more than a breach of contract case. It never should have been blown up and got to the Fifth Circuit three times, because at the end of the day, the University of Houston kept wanting to reprint her little book 2,000 copies at a time, because it was a Hispanic book that was selling well. And she didn't like the way they were designing the book and not making changes to it. You know, and she, she wanted somebody else to publish the book. And they had a big dispute over her contract. And she kept saying no. And at some point, you've got to respect, you know, when somebody says, no, I don't want you to reprint this book. And that was what that fight was all about, and the Chavez case has turned out to be the biggest copyright lawsuit in this country for the last 25 years regarding sovereign immunity. And everything has evolved around that. But at the end of the day, that case was nothing more than a breach of contract case that should have been handled in a state court and moved on. ^M01:03:04 ^M01:03:05 >> Jonathan Band: And I'll just add that the Allen v. Cooper is also really a contract case. I mean, there was a contract that, you know, the parties disagreed on and things went out of control. But I think part of the reason why -- >> Michael Bynum: I agree. I agree with you, and I think Rick Allen would also agree with you. But the problem is the state of North Carolina won't sit down and have a proper discussion about the breach of contract. >> Jordana Rubel: Let's let Mr. Band finish, please. >> Jonathan Band: Yeah, my point is, I think, again, every case is different. But the appeal for plaintiffs and the reason why they prefer copyright as opposed to contract is the possibility of statutory damages. But under contract remedies, you know, under a contract claim, you don't get statutory damages, you're limited to the actual damages or whatever the damages are in the contract. Whereas if you could get statutory damages, gee, of course, that's much more attractive. ^M01:04:04 ^M01:04:08 >> Jordana Rubel: Anybody from the copyright owner side want to respond? >> Alicia Calzada: Yeah, I'll just say that some courts do look at a contract case and say, no, this is about copyright. This belongs in federal court, and they will reject contract claims that are at their core about copyright violation. And so you can't say that you can just bring a contract claim when there's a copyright question, and you'll get relief. That just doesn't always happen. ^M01:04:35 ^M01:04:39 >> Jordana Rubel: Yeah, I have seen examples, especially when you're talking about states that aren't familiar -- that aren't in the regular practice with handling copyright cases and they're looking for an opportunity to pass it off to somebody else, where the analysis might not always be consistent with the preemption jurisprudence. Any other points about preemption? ^M01:05:07 ^M01:05:10 >> Marc Vockell: Oh, I'm sorry. >> Jordana Rubel: Yeah. Mr. Vockell? >> Marc Vockell: No, I would just agree with what Mr. Band and Mr. Bynum said about contract can be an appropriate remedy a lot of the times. And just to share for your record, for example, section 2260 of the Texas Government Code abrogates sovereign immunity for contract claims and has a process to handle it. So yeah, so software licenses, copyright licenses, all those can be litigated. ^M01:05:38 ^M01:05:41 >> Jordana Rubel: And just because you pointed out -- not to put you on the spot here. But is there any limitation on the kind of damages that can be obtained or any cap? Or is that fully subject to being litigated? >> Marc Vockell: Yes, there is on contract claims, there is a cap of $250,000 that can be raised by a legislative action, which is somewhat more routine than you would think. ^M01:06:06 ^M01:06:09 >> Jordana Rubel: Yeah, I think it's quite common to have caps somewhere in that neighborhood or even lower? Miss Xu? >> Yuanxiao Xu: Yes. So when you bring claims in state claims or commissions, whatever they're called, you don't have to worry about preemption. I think in the previous session, this was mentioned briefly. So for example, in Michigan, if you have a claim under $1,000, you can bring it in State Administrative board. If it's about that amount, you can bring it in the court of claims. And I think most other states, if not all of them have something like that. For example, in Arkansas, there was a case called Infomath v University of Arkansas where their claims commission awarded them $15,000 damages against the state. And I also want to mention that we also represent copyright holders. Most of our students and faculty create copyrighted works, and we care very much about their copyright. And if people were to infringe their rights, no matter if they infringe it as a state or an individual, we will try to help them as much as we can. I just noticed you mentioned, you referred to the other side, so to speak as the copyright holder, but we're also copyright holders. ^M01:07:32 ^M01:07:33 >> Jordana Rubel: Understood, thank you for clarifying that point. >> Michael Bynum: And I wanted to note one last thing, if I could, that you started out talking about getting these injunctions against people so something doesn't happen again. And also in trying to tie in the breach of contract part of it, there was a case just like this that had both parts of this. It was a case against the University of Georgia, about 10 or 12 years ago. And in that case, there was a professor that was teaching students how to take the national pharmacy test. Except he was using ODET to help teach his students with, and the National pharmacy board said no, you're doing this the wrong way. They ended up suing them for copyright infringement. They ended up, did get an injunction, because the professor had said he was not going to do this again, signed the contract, and then came back and was teaching the class again. So they did get an injunction against them to stop him for doing that in the future. And then they went to state court and ended up getting a $300,000 settlement against the University of Georgia for breaching their first contract. So you know, there are some merits in an injunction for certain things. And I will agree with that with any of the other folks. There are certain merits to that. And there's also certain merits of taking some of these cases to getting the small claims court -- not small claims, but getting the breach of contract part of it dealt with in state court. But in my case, for example, I never had a contract with Texas A&M. They were just people that came in the middle, took my took my word and posted it out to 350,000 people. It's those type of people and the types of people that take Jim Olive's stuff and do all the stuff they did with his photographs. You know, it's just that when you have people like that out there doing really bad stuff, they're the people you've got to be able to hold up and hold them accountable. You know, because that is real intentional theft. When you have people doing lesser things, there should be lesser remedies, you know, to hold them accountable. And I don't want to hold libraries, you know, responsible because libraries are great places. They do so many good things. But, you know, occasionally one may do something wrong. But if you look at all the legal cases in the last 30 years, you will find very few lawsuits against libraries. Because they're not the one causing all the mischief. It's some of these other people out there that are causing the real difficult stuff. And that's the reason why we need to be able to hold states accountable for when they cross that line and do, you know, the real stupid stuff, and don't want to deal with it and try to get it sorted out. ^M01:11:02 ^M01:11:04 >> Thanks, Mr. Bynum. >> Michael Bynum: Thank you. ^M01:11:07 ^M01:11:10 >> Jordana Rubel: Another point, another issue that might arise when one tries to assert a claim in state court is state immunity. And I know the panelists from Arkansas discussed this previously, and there may be other states that have similar laws that either, you know, entirely restrict the ability to bring a claim against a state in state court or set caps or other limitations on the type of claim that may be brought against a state. I know Miss Xu just talked about another avenue for bringing claims up to a certain dollar amount in her state. Others might have other experiences. I'd be interested in hearing if anybody has comments on the issue of state immunity in state courts. >> Yuanxiao Xu: Just a quick note, I don't think there's a cap in Michigan for the court of claims. >> Jordana Rubel: I'm sorry, I thought you said that you were able to bring a claim. >> Yuanxiao Xu: That was for the State Administrative board. >> Jordana Rubel: I see. ^M01:12:21 ^M01:12:26 Mr. Vockel? >> Marc Vockell: Yes. So there is a process in Texas for if there's a case where the state has full sovereign immunity, wouldn't be able to be sued. It would be a case that would make Mr. Madigan very upset because he doesn't like sovereign immunity, that you can get a legislative waiver if it's a unique case where sovereign immunity shouldn't bar the claim. And you all can look, there's a case, the Railroad Commission versus Gulf Energy from the Supreme Court of Texas in 2016. So that is, you know, it's not the most common remedy, but it's a remedy. Allen versus Cooper talks about is their due process. Well, here's a process for egregious cases. ^M01:13:09 ^M01:13:13 >> Jordana Rubel: Do you know if that has been raised and Mr. Olive's case in Texas? >> I don't, to the best of my knowledge. Mr. Olive's case is pending before the Texas Supreme Court on the specific issue of whether a takings claim is cognizable for breach of copyright. So he may have -- there may be a state remedy, you know, for takings in Texas after the Supreme Court rules on that. ^M01:13:36 ^M01:13:42 Any other comments on state immunity or other procedures through which one could sue a state? ^M01:13:49 ^M01:13:53 All right, let's talk about takings claims then. We've talked a little bit just now about Mr. Olive's claim against the University of Houston. In that case, as Mr. Vockell just summarized, and Miss Calzada talked about this as well a few minutes ago. The Texas Court of Appeals held that there was no takings claim available under the Texas State Constitution or the US Constitution for copyright infringement. And my question is, do you think that case was correctly decided? ^M01:14:34 ^M01:14:41 >>9 Well, we found out about it, we found an amicus brief urging that the intermediate court holding be overturned. So I guess we would have to say no, we don't believe that was correctly decided. Part of the intermediate court's argument was that the discussion was that because they didn't take the whole copyright, it wasn't a takings, in the way other takings would be considered. And they compared it to other sort of interferences and trespass, you know, meaningless trespasses. I have the term right here, hang on, hang on. The specific term used was transitory invasion, you know, something along the lines of the state walking across your land. I think that that ignored the damage, as I discussed earlier, the market damage that happens when an infringement takes place. And remember, this was a unique image of the city of Houston. And so a photographer is going to license their work in various genres, and sometimes will offer exclusivity. And you're definitely not going to want two universities in Houston to use the same photograph. And so if he had a private university that wanted to license his work, they're not going to want to license it, because a competing University is using the work. And so, you know, to just sort of say like, well, he still owns his copyright, it's not like they took the copyright from him, ignores the damage to his intellectual property. And we talked extensively in our briefing about how, you know, using a work without permission does damage the intellectual property. It damages, the rights and relationships that you have with licensees, and it damages exclusivity or the potential for it. I mean, even the potential for exclusivity is limited when people know that someone can come along and infringe with impunity. And so it's very difficult to offer exclusivity, when you know that that's not really possible. And so I think it's really -- I'm hopeful that the Supreme Court of Texas will understand that there is more to the value of intellectual property than just owning it, and that the use of it has a value. And when it's taken, it's taken a piece of it, a chunk of it, and sometimes a very valuable chunk. ^M01:17:30 ^M01:17:33 >> Jordana Rubel: Miss Olson, did you want to say something about that? ^M01:17:36 ^M01:17:40 >> Darcee Olson: So we've talked a lot about exclusivity. And I was wondering -- two competing thoughts came up in this. One is I know Mr. Olive allowed a newspaper to come into his studio and take photographs of a dozen or so of his works. Would the newspaper running an article sympathetic to Mr. Olive featuring fairly decent-sized reproductions of his work jeopardize exclusivity? And seriously, I really don't know if that would be something, how that would impact. And then there was a comment that was made in an earlier session that I also -- let's start with the question on exclusivity first. ^M01:18:23 ^M01:18:25 >> Jordana Rubel: All right, we'll come back to you. Miss Calzada, did you want to respond to that? >> Alicia Calzada: Yeah, sure. No, because you don't have a company that is in the business of marketing a university that is using it for the purpose of marketing the university that is competing with an existing client. And also you have -- I mean, that was with permission. You know, if he had exclusivity concerns, he chose to let them in. He has control over that. You know, there's certainly a fair use argument when you're reporting about a lawsuit that involves a photograph. And so there's other questions there. But I think that's a disingenuous question to say that that threatens exclusivity reporting on the lawsuit. And to me, those are two different -- they're in separate columns of use and question. ^M01:19:18 ^M01:19:21 >> Jordana Rubel: Mr. Band. >> Jonathan Band: So, when Miss Calzada was talking about the trespass, I just wanted to mention one more thing relating to trespass and also preemption. And because I don't know which are -- the list of theory, legal theories, you're going to get to. So I just want to mention that one of the other state theories that can be applicable if the fact situation doesn't allow for a contract action would be trespass to chattels. So if a university is doesn't have a license to the content, but let's say is going on to someone's server -- again, we're talking and we're in 2020, this happens. Where people, you know, someone might go onto a server and get access that way to the photo without a license, there can be a trespass to chattels action. Similarly, a lot of states have sort of like their state versions of the Computer Fraud and Abuse Act, which reached to going onto a computer and taking something without authorization. That too would not be preempted and would be subject to liability under state law. So there's depending on the fact pattern, there's often a way to get to the state actor who's behaving badly. ^M01:20:45 ^M01:20:49 >> Alicia Calzada: Can I? >> Jordana Rubel: Sure. >> 8 I think we're twisting ourselves into pretzel trying to come up with other ways that we can bring what is in essence a copyright infringement lawsuit, when what needs to happen is for copyright remedies to be available. You know, I think we could probably expand -- I mean, there's a lot of creative mental energy in this room. And I'm sure that we could all expand on different creative ways to approach copyright. But in the end, it's copyright. And the copyright infringement should be addressed as a copyright infringement, and we shouldn't have to do somersaults. And these are all theories. None of these have been tested, or successfully tested, I should say. And so I think the ultimate question is, why shouldn't a copyright holder have a right to protect their copyright? ^M01:21:44 ^M01:21:46 >> Jonathan Band: Well, because the Constitution says that in this situation, things have to be handled differently. It's not, you know, take it up with the Supreme Court. Well, although they already decided it. Okay. So that's why we're here. That's why we're trying to figure out what's constitutional. ^M01:22:02 ^M01:22:04 >> Jordana Rubel: Mr. Madigan? >> Kevin Madigan: I was going to say, yes, they already decided it. But obviously, I think they said, "something is amiss." And if, you know, Congress should act to stop states from acting like pirates, and it's just sort of, you know, their hands were tied. And, you know, I understand we're here to try to provide some sort of record to help them to, you know, see if Congress can act. But, you know, as I said earlier in an earlier session, there's no magic number of infringements that is going to trigger Congress to act. So, you know, I think like Alicia said, you know, we should think about these things on a more fundamental level, like is state sovereign immunity truly serving the purposes of our copyright system? ^M01:22:51 ^M01:22:53 >> Jordana Rubel: I want to just pose one final question, and we'll give you a chance to respond, Mr. Vockell, to my question or to the one Mr. Madigan just raised. One option that's on the table is for Congress, if it decides that there's a sufficient record to pass another statute abrogating state sovereign immunity. There is another, or there's probably other solutions as well. And one possibility that was raised in the Oman report way back when is amending the Copyright Act to take away exclusive jurisdiction of the federal courts to handle copyright infringement claims. Does anybody have any thoughts about how far that potential solution could go towards addressing some of the issues that we've been discussing today? Mr. Vockell, I'm going to let you jump in, because I know you had a comment before and if you want to touch on that question as well, please do so. ^M01:23:56 ^M01:23:59 >> Marc Vockell: Well, I don't know. I was going to go off Mr. Madigan's good sound bite that I kind of lost now. He mentioned the Supreme Court talking about states acting like pirates. And I think we haven't seen that evidence here. We've seen, you know, some disagreements and concerns about what's the effectiveness of the individual remedies. We've talked about in terms of relief, DMCA, ex parte Young, takings, breach of contract. And whether they do or don't cover everything. But to eliminate a constitutional right, like Jon said, the 11th amendment, there's a high standard that needs to be reached. A widespread pattern is intentional, or at least reckless infringement. So I don't think there's been any evidence that that high standard has been met. And so I think that, you know, taking a second shot at the CRCA probably isn't a good idea. I haven't thought about other, you know, your other revamp of the entire copyright litigation system. ^M01:25:04 ^M01:25:07 >> Jordana Rubel: Just throwing that out yet the last second? >> Marc Vockell: I don't think it's necessary based on what we said about how the system is. You know, the claims we're hearing from Mr. Bynum, Mr. Olive, the other panels are like the tip of the iceberg. The huge iceberg under the water is what we've talked about where our library is spending $60 million. California is spending $100 million, we're buying all the licenses. The system is working. Like that's really the story here. ^M01:25:39 ^M01:25:41 >> Jonathan Band: Yeah, if I may, I mean, I think the idea of giving state courts jurisdiction over copyright cases would be disastrous. I mean, it's complicated enough for you have, you know, the different conflicts among circuits, right? And, you know, there's a reason whether it was a great idea or not for Congress to give exclusive appellate jurisdiction for patents to the one court, but to have 50 different state courts interpreting copyright law, it would be -- I think it would just be such a complete mess, especially given that -- and again, this gets back to the underlying point that is so critical here, is that, you know, copyright is complicated. Copyright isn't easy, and it's complicated in large measure because of fair use. And its fair use, as Justice Ginsburg said, is a built in accommodation to the First Amendment. So in many ways, you know, people who don't like fair use or think fair use is messy, well, the problem is the First Amendment, just like the problem here is the 11th Amendment. And we don't want to get all these state courts starting to interpret the copyright law in 50 different ways. ^M01:27:02 ^M01:27:04 >> Jordana Rubel: Miss Xu? >> Alicia Calzada: Yeah, the question was whether we should abrogate sovereign immunity or abrogate preemption. And my answer to that is neither because we don't see widespread, intentional, reckless infringement by state actors. I think it's better to focus on numbers instead of anecdotes. So last year, state actors contributed 11% of the total GDP. And how many state infringements do we see? It's far less than 1%. So Congress's effort and energy is better spent elsewhere if it wants to educate the general public on what copyright is, and how to contain copyright infringement. State actors are definitely not the big infringer here. ^M01:27:51 ^M01:27:56 >> Jordana Rubel: If I may ask them one question, just in terms of remedy is twisting, as Miss Calzada said, these copyright claims into a breach of contract or tort claims. Is that a threat or a danger to the integrity of copyright law and consistency of copyright law application in and of itself? Miss Calzada, if you could comment on that. Or Mr. Madigan? ^M01:28:24 ^M01:28:26 >> Alicia Calzada: I think that goes to the same, almost the same question about state law. You know, I think it could result in more uneven application of copyright law. We haven't addressed the question of whether, you know, giving states jurisdiction over copyright law would solve the sovereign immunity problem. But we did comment on that in the small claims process very, very early, maybe eight years ago when we were looking for solutions to the to the problem of small copyright claims. And just generally felt that it was risky to the idea of assurances and consistent application of copyright law, as you say. Which really, you know, given the stakes and the importance, need to be consistent. But I think there's no question that the system is broken. And when a system is broken, you need to think outside the box. And I if I could touch for a second on Mr. Band's point about the First Amendment. You know, again, we represent visual journalists. And there is a fundamental difference between copyright infringement and other intellectual property infringement because of this First Amendment point. But when a state infringes someone's copyright, they violate the right against compelled publication and compelled speech. And that is also a very important First Amendment right that I think hasn't really been talked about here. But there is a First Amendment protection against compelled speech. And when a state takes a photograph and uses it against the wishes of a copyright holder, they violate that person's First Amendment right. Additionally, at least two copyright infringement cases where sovereign immunity was held, related to the BARA and involved the destruction of copyrighted work, which also affects the First Amendment. And so I think that it's very important to consider the balance of the First Amendment interests of the copyright holder who has a right to decide how their speech is used as part of their First Amendment rights. ^M01:30:50 ^M01:30:54 >> Jordana Rubel: Mr. Vockell, we're going to give you a last word, because we're just about out of time. >> Marc Vockell: Sorry. Well, I appreciate Mr. Mangum's question. And to the point of uniformity of copyright. I've worked in the private sector and the public service sector. And here at, you know, just at the University of Texas alone, we have over 50 professionals, you know, librarians, licensing agents focusing on making sure we do comply with copyright. So I think concern about the uniformity of applying copyright -- wherein you know, state universities probably apply copyright more uniformly than almost any other institution I can think of. ^M01:31:32 ^M01:31:37 >> Jordana Rubel: Well, many thanks to all of you for participating. I think this has been a useful discussion. All four panels were interesting and informative. I'm going to pass the mic over to Regan Smith I think she's going to talk to Mr. Bynum a little bit more and then we're going to get to public comments.