^B00:00:10 >> Regan Smith: Returning to the session of the day that we call the audience participation or open mic session, but we're going to start with Mr. Bynum since he was having technical difficulties on an earlier panel he was scheduled to be on. So, Mr. Bynum, this is your opportunity to share for the record any materials that you intended to and did not get a chance to get out yet. And then we'll go through -- we have four others who've signed up for the audience participation segment. And just so people know, when we get to them, it will be Janice Pilch. Jeff Sedlik, Alicia Calzada and Kevin Madigan. So, Mr. Bynum, are you there? >> Michael Bynum: Yes. I'm here. First of all, I very much enjoyed listening to all the other people on this last panel. They all are very articulate, and they bring great views to be considered and discussed. And, you know, several of them, I'd probably like to sit down and have a beer with just to hear more of their ideas as we go down the road. But most importantly, is that, you know, when you have this type of problem, you know, the one big thing that we discovered in doing the tremendous amount of research that we've had to do for this case is that, you know, you don't have a lot of examples of people going out there and doing, you know, big time intentional theft. A lot of it starts out with just pure stupid stuff that, instead of dealing with it early, it grows. And it takes on a whole new momentum, and it just builds from there. And, you know, I can definitely tell you that, Jim Auway [phonetic] would say the same thing. Rick Olive -- Rick Allen would tell you the same thing. My friend up in Kentucky, a great photographer out there that took on the University of Kentucky when he was having a problem with his photographs being improperly used by their basketball program, he had, you know, he'll tell you it was largely started with just stupid stuff. And they -- you know, the University refused to sit down and, you know, work through the problem. And, you know, it's just that when people quit talking to each other and not trying to find a solution to how to deal with it, then you have to find another way to get to the bottom of the problem. And that's where all these difficult lawsuits really grow from there. And, you know -- and I think that if all of us, you know, it's when we get to the point where we can't talk to each other, that we need to, you know, stop back -- stop and step back for a minute and think about this because, you know -- you know, talking through problems deals with 99% of the issues in front of us. >> Regan Smith: Mr. Bynum, Mr. Bynum, I want to make sure. I understand how this connects, you know, a little bit closer to the standard the Supreme Court has set out. So in your comment, you have identified 160 cases of copyright infringement since 2013. Right? >> Michael Bynum: 158, yes. 158. >> Regan Smith: 158. Okay. And so the Supreme Court has said that Congress should base future legislation upon a record that is widespread and also demonstrates intentional and reckless infringement. Can you speak a little bit about to these 158 cases, whether they represent that or, rather, you know, perhaps honest mistakes, which is another phrase that the Court opinion also touched upon as an alternative, you know, situation of potential infringement. ^M00:04:45 >> Michael Bynum: Yeah. When we were trying to round off that list to make it as good as possible, we threw out probably 25 or 30 cases that were marginal, that did have questions. And we tried to pick the cases that were based on, you know, real problems. And you know, some were worse than others. But, you know, these were real cases. And these are all cases that came out since the Chavez ruling in February of 2000. >> Regan Smith: And when you say real problems, just to start, what -- how did you define a real problem? Did that go [inaudible]. >> Michael Bynum: A definable infringement. A definable infringement. >> Regan Smith: Do you know whether Fair Use was considered in some of these cases or not? >> Michael Bynum: We threw out probably four cases that were marginal, that probably could be considered Fair Use. So we tried to sharpen our knives, and get the cases that could stand on their own two feet as best possible. And even out of that 158, there may have been, you know, three, four, or five that even they maybe should have been tossed out. But at the end of the day, there were at least 150 hardcore cases where we felt that these were real copyright infringement. We had a lot of lawyers look at this, you know. So it wasn't just, you know, me deciding or somebody like me deciding. We had real people with real knowledge about copyrights looking at these, and they were the ones telling us, toss that case. Toss that case? You know, and that's what we did. >> Regan Smith: So those are cases that are filed. Do you have a sense for whether that is representative of the universe out there? Are people likely to file cases or do you think there's a magnitude of instances where people do not bring claims but experience similar infringement? >> Michael Bynum: Based on conversations that I've had with other people, a lot of people just didn't even try to take it to court because they felt like they knew where the answer was going to be, and that was with a no. And it was the people that were the most frustrated, that people that felt like they had the best case possible, those are the ones that, you know, wrote a check, paid their lawyers and said, we're going to solve this case, no matter what. >> Regan Smith: All right. Have you seen -- >> Michael Bynum: Out of the total amount, you know -- you know, I would imagine that for every case that got filed, maybe four or five didn't. >> Regan Smith: And is that sort of your hunch, or do you have a more -- you know, any other, you know, explanation for the basis based on, you know, the people that you've talked to -- >> Michael Bynum: It's just kind of based on the brief conversations I've had with people in the last six years, what they told me, what their experiences were. >> Regan Smith: And have you noticed any sort of a change in trend since the Allen v. Cooper decision? >> Michael Bynum: Not -- well, actually, what I have noticed in the -- since the Allen v. Cooper case was going to the Supreme Court, there has been a lot less cases filed for copyright infringement against state actors. You know, in the last 18 months or so, you know, the number of cases has pretty much dried up for right now. And that doesn't mean that the problems still aren't ongoing. It's just a lot of people are leery about spending new money going after new cases until they see, you know, will Congress pass a better law this time that will stand up? ^M00:09:18 ^M00:09:23 >> Regan Smith: Mr. Amer, do you have any questions for Mr. Bynum or -- >>Kevin Amer: No. I don't think I have anything further. >> Regan Smith: Okay. Mr. Bynum, is there anything else you'd like to conclude with, you know, in a minute or two that you would have said on panel 2 if not for the technical difficulties? >> Michael Bynum: The only thing that I really would -- wanted to focus on is that, when you pursue a case like this, you know, and you are -- and you're really serious about trying to get to the bottom of what happened, you know, there is a tremendous amount of, you know, mental energy. There's a tremendous amount of cost. I mean, I was told that when this case got -- first got started, it was going to cost me $350,000. And, you know, I spent five times that amount. So, you know, when you go to pursue a case like this, you better hitch up your wagon and prepare to fight hard. It's just -- and it shouldn't be that way. It should be when you have, you know, somebody that admits to you in an email, yes, I did this. This is how we did this, you know, and this is what happened, and when you have that kind of simple confession, you know, you should be able to resolve those kinds of questions real quick and not get to the where we've got to right now. And, you know, a University trying to hide behind sovereign immunity, you know, is ridiculous, especially in a situation like this or in the case of what Jim Olive has had to go through. So, you know, I'm just trying to, you know, share with others that, you know, you've got to really fight for what you believe in and be prepared to fight hard. >> Regan Smith: Ready to -- yes. I see her. >> Janice Pilch: I think -- and hope you can hear me as well. Can you? Great. >> Regan Smith: Yes, they can hear you. >> Janice Pilch: Great. Great. Good afternoon. My name is Janice Pilch. I'm a member of the library faculty and a copyright specialist at Rutgers University, but I'm speaking solely in a personal capacity as a member of the public. These comments do not reflect and are not associated with any opinion, policy or practice of Rutgers University. They are based on 20 years of library experience focused on copyright. Almost half of the participants on today's roundtable are from state-run libraries and universities offering similar views depicting a broad compliance culture in good faith activity, such that there would seem to be no reason for concern about losing states' sovereign immunity. But there appears to be concern. I'd like to raise additional considerations, And I have five points to make. On the first point, that state-run universities and libraries and our employees take copyright seriously; are risk averse, even overwhelmingly cautious and fearful about copyright. I think it's true that some faculty, staff and administrators continue to adhere to a compliance culture. But what I see and have experienced is that others have veered from it under the influence of a strong push in the last 16 years since the start of mass digitization, to move beyond the boundaries of copyright law and to change public perception of it, in particular, by promoting new interpretations of Fair Use. Such interpretations are promoted by library organizations working in broad advocacy coalitions with technology companies, civil society organizations, law school centers and programs and individuals. It's also called and referred to as drinking the Kool Aid. This terminology has been used. Attitudes about copyright are much -- not as positive as they used to be. In reality, I would say there's a lot of hostility toward copyright, including its state institutions, and this affects approaches to copyright in practice. Evidence of this can be seen, for example, in the broad support for the Internet Archives Controlled Digital Lending Activity from hundreds of signatories, including state-run universities and libraries and their employees; that controlled digital lending is viewed by rights holders as illegal, and that it directly undermines author's livelihoods but is supported by such a large number of state entities and their employees should be evidence of the decreased institutional support for copyright protections. Some institutions have or are apparently implementing CDL initiatives of their own, despite the lawsuit. I think there's no question that state immunity will come into play if or when a state entity faces a similar lawsuit. And it doesn't help when state library administrators do things like characterize the author plaintiffs in the internet archive lawsuit as, quote, whining about disrespect for the copyright value chain and call the lawsuit misplaced and myopic. ^M00:14:38 This type of communication, of course, makes many feel justified in exceeding the boundaries of copyright law. I would characterize it as a threat to the integrity of copyright law. Second point on the matter that infringement by universities is rare and the number of complaints is small. There are lots of reasons why the copyright librarian or the General Counsel's Office doesn't see infringement, although I've heard broadly for many years, anecdotally, that it's quite common. Most infringement I think goes unmeasured. It's easy to say, I see no evidence of infringement when one is not looking for it or is unable to access the evidence. Also, many rights holders are exhausted. They've just simply given up on takedown notices that don't work. But it doesn't mean that infringement isn't there. How frequently copyright owners claim that a state actor has infringed their rights is one thing. Actual violations are another, and I think they're far more difficult to assess. But a culture that widely accepts or promotes infringement even, reframing it as fair use sometimes, will produce more violations. Third point, on the matter that faculty and staff of state-run universities and libraries don't intentionally or recklessly infringe copyright law, history shows that, on a large scale, state universities and libraries do sometimes intentionally exceed traditional interpretations of copyright law when they're trying to test the boundaries of the law, especially by stretching interpretations of fair use. The Georgia State University case and the Google Books Hathi Trust case have been cited in written comments. The practice of control digital lending is the most recent example. On a smaller scale, it's not uncommon for projects to be directed, knowingly and consciously exceeding what many consider to be reasonable interpretations of fair use. The ambiguity of fair use, its function now is a belief system. Believing that a use is fair sort of makes it fair, provides cover and state sovereign immunity provides an additional shield. My fourth point on the matter that state institutions invest heavily in copyright education and that copyright education is increasing, I would say that much of copyright education today is about expanding interpretations of limitations and exceptions, even veering into outrageous interpretations of Fair Use that happen just to correspond to the interests of the -- interests of technology corporations to get works online openly and keep them there and to maximize reuse without paying anyone for it and without sufficient regard for anyone's rights. In recent months, I've heard in copyright education webinars sponsored by major national entities and universities, I've heard that once someone has decided that use of a third-party work and an open educational resource is fair, it's fair for all future uses. In other words, that fair use functions like an open license. I've heard that fair use promotes the use of unlawful copies because it doesn't care whether a copy is lawful or not, in other words, that Fair Use functions as a label. Stick a label -- stick a label of fair use on an unlawful copy, and it somehow magically transforms into a lawful copy. I think this was what was being said. I'm still not sure about it. And I've heard that controlled digital lending is permitted by US law with an implication that it's also permitted in the European Union so what are people afraid of, with the implication that people should just do it because everyone else does. I seriously question the value and purpose of some copyright education initiatives. I think that's my point. Finally, on the matter of state policies and practices for minimizing copyright infringement and addressing claims, I would say the distance between policies and practices can be wide when it comes to copyright. Universities and libraries can have very good policies in place. While practices are developed to promote a looser environment, to deregulate copyright by rationalizing uses that harm the interests of rights holders. Written policies are not where the action is. There's a real conflict today. Reasonable University and library policies can be cited as evidence of a compliance culture. While anti-copyright practices are widely promoted to break the law. By this I mean destroy the effect of copyright law. I would call this a threat to the integrity of copyright. Such rationalized practices encourage innumerable infringements that often go unnoticed, undetected or unchallenged due to the expensive litigation and legal services. They nonetheless destroy livelihoods and are shielded by state sovereign immunity. In conclusion, I think that more needs to be done to study the cultural and contributory aspects of copyright infringement, the less quantifiable aspects. And I think the law needs to evolve beyond its current form to be fair in all respects. In addition to the possible abrogation of states' sovereign immunity, I think that Congress needs to consider Fair Use reform. Fair Use has been weaponized against rights. Academic and library values have become almost indistinguishable from tech industry values that serve private interests and are being advanced by people at state-run libraries and universities. This is problematic, and it doesn't serve the public. Thank you to the Copyright Office for providing to the public an opportunity to express our views. I'll end here. ^M00:20:07 >> Regan Smith: Thank you, Ms. Pilch. We appreciate the thought and time that went into that contribution and your participation today. I think moving on to the -- to the next person would be Mr. Sedlik. And I might ask you to be a bit briefer because I think the remaining speakers have already been on a panel today. So that was our first opportunity to hear from Ms. Pilch. Mr. Sedlik, would you like to share? >> Jeff Sedlik: Three minutes and 15 seconds is all I need, Ms. Smith. Well, I appreciate the excellent work and the respect for artists rights evinced by my fellow panelists from the museum, library and education communities today and by organizations like the ARL, the VRA, the OCLC and others. The fact that many institutions demonstrate respect for artists rights or pay license fees to some creators for some usages or make other earnest attempts to voluntarily comply with copyright law is wonderful but provides virtually no protection to creators whose exclusive rights and remedies with regard to infringement by state entities are effectively negated by sovereign immunity. Breach of contract is not a sufficient remedy because the vast majority of infringements do not involve a contractual relationship between the rights holder and the state entity. Rather, the state entity may obtain copies from sources such as Google Images, social media, websites and then distributes, displays and otherwise uses those copies without the creator's knowledge. And with no contract, there are no contractual terms to breach. For the reasons that I described in session one, injunctive relief is also not an effective remedy. With no right to effective remedies under copyright law, creators are severely prejudiced in their negotiations with states concerning unauthorized usage of their works. And the shadow of sovereign immunity, creators find it impossible to secure legal representation on a contingency basis. As creators are unable to afford to retain an attorney on an hourly basis, creators are left without effective recourse for copyright infringement by state entities. When independent professional visual artists create new works, they typically do so with the intent to monetize those works throughout the lifetime of their copyrights by offering up their works for licensed use by public and private entities for usages not falling under the exceptions of Fair Use, 108, 110 or 121. Fair use and sovereign immunity are entirely separate legal constructs and must not be conflated. Much of the legitimate cultural heritage education, research and preservation activities of state entities with respect to copyrighted works falls under the exceptions of Fair Use or under Section 108, 110 or 121. Reliance on sovereign immunity can have the unfortunate effect of emboldening state entities to proceed with unlicensed use of protected words without requisite analysis and in a manner that would otherwise require a license from rights holders. In the earlier sessions, it was suggested that the quantity of 160 copyright decisions in the last 20 years serves as an accurate indicator of the scope of infringing activity by state entities. I disagree. In reality, only a fraction of state infringement are discovered, only a fraction of discovered state infringement are pursued, only a fraction of pursued state infringements proceed to filing a complaint and only a tiny fraction of those state infringement make it to pretrial adjudication or are tried to verdict or judgment. For these reasons, the quantity of 160 decisions is not a reasonable measure, and it is reasonable to expect that the scope of infringing activity by state entities is exponentially greater. Lastly, my good friend Mr. Bann [phonetic] suggested that we must consider the Constitution. Accordingly, Article 1 of the Constitution considered in the context of Section One of the 14th amendment presents a compelling foundation for consideration of the protections that must be enjoyed by creators in order to provide them with an adequate incentive to create new works for the ultimate benefit of society. Article 1, Section 8, Clause 8 of the Constitution establishes that Congress created copyright law to promote the progress of science and useful arts by securing for limited time to creators and inventors the exclusive right to their respective writings and discoveries. In tandem, in drafting Section 1 of the 14th Amendment, Congress made it clear -- made clear their intent to act within the spirit of Clause 8 by specifying in crystal clear terms that states may not deprive any person of life, liberty or property without due process of law. Thank you for the opportunity to participate today. ^M00:24:41 >> Regan Smith: Thank you. And thank you, Mr. Sedlik, for participating. I think the next participant is Ms. Calzada Are you ready? >> Alicia Calzada: Yeah. Hi. Thanks. I appreciate the chance to talk again. Mostly wanted to be available in case you had questions about Our First Amendment assertions, and maybe expand a little bit on what I was saying earlier about how much of a First Amendment problem it is when the government is using the work of journalists, in particular. Journalists have an ethical obligation not to be mouthpieces of the government. And when their work is used to promote government ideas or concepts, they bristle more than just a little bit. You know, I work mostly with journalists, and I'm -- I also have a private practice, and a lot of my clients are journalists. And I'll tell you that news organizations and individual journalists will often look the other way when just an average individual or a company infringes their work because it's a huge burden on them. And they need to get up the next day and do more work. And -- but when they see a politician or a government official violating their copyright, they immediately snap to action. And they are concerned about the ethical problem of having government speak with their work. And so I did want to just see if you had any questions or thoughts or wanted me to expand on any of that, Regan. >> Regan Smith: I mean, one question is whether there are specific instances that you would like to draw to our attention more than -- you know, in addition to the written comments and testimony, this would be a good time to do that. And Mr. Amer, if you have more questions, jump in. >> Alicia Calzada: So I did make -- well, I'll wait for Kevin. >>Kevin Amer: No. I have the same question. Just if you have any specific examples of the type of situation you're talking about, that would be helpful. >> Alicia Calzada: Well, I have seen, like I said, circumstances, some of which relate to clients where, you know, they've seen politicians use their work to try to pursue a specific message. We highlighted several instances in our -- in our comments that I would refer you to just for the interest of time. You know, and really, any of these uses that you see are the government speaking using the words of the copyright owner. And so you can really, you know, Rick Allen was forced -- was compelled to speak the message of the State of North Carolina with his work, and it was used in a way that presented their speech, you know, their -- their message, and he was compelled to speak their message using his work. And so any of these cases, really, you can look at from a First Amendment perspective of how that use is compelled speech of the speaker. ^M00:27:59 ^M00:28:06 >> Regan Smith: Thank you very much. We appreciate you elaborating on that. I think that this was certainly helpful to hear from you. Is there anything else? Or, if not, that's fine too. >> Alicia Calzada: You know, I just have one other thing to say about the question of intent. In Brammer v. Violent Hues, the Fourth Circuit kind of disposed of the false notion of merely negligent infringement and held that, when an infringer thinks that an image is freely available, that's actually not a reasonable belief, given that all contemporary photographs are presumptively under copyright and that the presumption should always be that a work is under copyright until you find otherwise. And so I think it's important to, when you have this conversation about is it intentional, to consider the point that all contemporary work should be presumptively under copyright, and it's incumbent on the user to find out otherwise. >> Regan Smith: Thank you. Thank you, Ms. Calzada. >> Alicia Calzada: Appreciate the opportunity. >> Regan Smith: I think -- and, again, we really appreciate your thoughtful contributions. Mr. Madigan, do we have you? >>Kevin Madigan: Yep. Can you hear me? >> Regan Smith: Good. So please go ahead. >>Kevin Madigan: Yeah. I'll be very brief because I want to give others who maybe haven't had a chance to talk today a chance to chime in. But, you know, I just wanted to respond. There was an argument in some of the comments opposed to abrogating states sovereign immunity that said, immunity must be preserved to protect taxpayer resources because the public will ultimately foot the bill for defending against meritless lawsuits. And I would just say that state universities are sometimes massive owners of IP themselves. And they use the same public tax dollars to register and enforce their IP rights. So I just think we need to be clear that it goes both ways. We detail in our comments some of the initial research we did about the amount of copyrights owned by universities and some instances of enforcement against individuals or small businesses. And I think the tax argument sort of also disregards this sort of long-term benefits to the public that results from copyright laws that respect and protect the rights of copyright owners and creators. And so I just think they -- those things need to be considered alongside any claims that abrogation of states [inaudible] will harm the taxpaying public. So that -- that was just what I wanted to get in. And I also wanted to thank you all so much for hosting this today. I might have to jump off a little bit before 6, so I just wanted to get that in there now. ^M00:30:55 ^M00:30:57 >> Regan Smith: Well, thank you. And thank you for participating and for following up on that issue. We appreciate it. ^M00:31:05 ^M00:31:08 I think, though, you might be the last speaker, so we might be at a conclusion now, unless anyone from the Copyright Office side wants to chime in and say that I'm mistaken. Going once, twice. No? Okay. So thank you, everyone, for participating -- did I hear someone? No? Okay -- for participating or listening to the session today. Just as a reminder, the transcript will be posted on the Copyright Office website for the studies docket, as well as a video will be made available to the Copyright Office's YouTube channel, and any subsequent actions in our analysis will also be made public on the study website. So thanks very much, everyone. And, you know, have a good night.