All, in case you want to send something similar to your libraries. Best, Rachael ---------- Forwarded message --------- From: Rachael Samberg <[log in to unmask]> Date: Fri, Mar 11, 2022 at 1:47 PM Subject: What you need to know about a new copyright law and rule To: libstaff lists.berkeley.edu <[log in to unmask]>, affil-all lists.berkeley.edu <[log in to unmask]> Dear Colleagues, On behalf of our Office of Scholarly Communication Services, I’m writing with a rather long but important update regarding a new law and rule that directly affects decisions you and campus scholars make when using copyrighted materials. The upshot of the new rule for you is that, in your professional capacities as library employees, you now have *more *protections for the work that you do. (But non-employee scholars fare differently under the new law, as I explain below.) This e-mail will be a very reassuring one for you, but it’s important to understand the “why” behind that reassurance so that you can continue to make sound choices in your work and advise scholars of the same. As always, we’re here to help with any questions. Contact us: [log in to unmask] *What is the new law?* Normally, if a copyright holder wants to sue someone for copyright infringement, they must file a complaint in federal court because copyright law is governed by federal statutes. Federal court imposes procedural hurdles including that the damages minimum someone needs to have suffered must be at least $75,000. Well, what if a copyright holder has suffered damages estimated “only” at $10,000? Until 2020, there was not a venue in which that person could pursue so-called copyright “small claims.” In 2020, Congress passed a law <https://www.copyright.gov/about/small-claims/> called the “Copyright Alternative in Small-Claims Enforcement Act of 2020,” known as the “CASE Act.” The CASE Act mandated the formation of the Copyright Claims Board (“CCB”), a tribunal operating through the U.S. Copyright Office instead of the federal judicial branch, for the purpose of deciding “small claims” copyright infringement actions via a quicker, less expensive process—that is, without all of the procedural requirements of a normal federal court case. Damages are capped at $30,000 for CCB cases. The new law is beneficial for some people like small-scale artists who legitimately have complaints when, say, a movie company uses one of that artist’s images in a commercial film without first getting a license. But the new small claims law is detrimental for people like scholars, who make fair uses of copyright-protected materials all the time. Imagine here a graduate student using images in their dissertation and lodging that dissertation in eScholarship (the institutional repository). An artist sees that dissertation online and is upset that the scholar used those images, and files a CCB claim against the graduate student because the artist doesn’t understand that the scholar’s use of the images was a “fair use.” And if the graduate student doesn’t understand the CCB claim or do anything about the claim being filed, a default judgment could be entered in an amount up to $30,000 against that student—even if ultimately the student’s use was fair all along. So, there are pros (for rights holders) and cons (for scholars) to the new law. And there’s a lot of resulting education we need to do for campus about what the CCB means, and what protections the university *will* provide to employees, and *won’t* provide to students and non-employees. We set all of that information forth in our “copyright small claims” guidance page *here* <https://www.lib.berkeley.edu/scholarly-communication/copyright/small-claims>, and we’ll be doing additional trainings and presentations to campus. But that’s not why you’re here reading this. You’re here reading this because you want to know how this law affects *you*. Read on. *How does the new law affect you, as a library employee?* Until just this week, a copyright holder would have been able to file one of these new “small claims” against you in connection with your work at the library if the copyright owner believed that you were infringing their work. Let’s say a copyright owner felt that your distribution of PDFs through interlibrary loan (sorry, ILL Team!) was an infringement, or let’s say a copyright owner felt that uploading digital images to our Digital Collections <https://digital.lib.berkeley.edu/> site was an infringement (sorry, LIT!)—well, until this week, these copyright owners could have sued you personally in federal court (if they met $75K damages minimums) *or* they could have filed a claim in this new copyright “small claims” tribunal. It’s important to pause and note here that, while a copyright owner could sue you, they could not sue “the University” because our university has what’s called “sovereign immunity” from copyright claims. But “sovereign immunity” doesn’t extend down to you, and the copyright owners can and could sue you, *in your individual capacity*, for the work you do within your employment. Now, for work you do in your employment, as long as you use good faith efforts to make fair uses, the University has an obligation to defend you both under California law <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=995.&lawCode=GOV> and University fair use policy <https://policy.ucop.edu/doc/2100007/CopyrightFairUse>. But we bet you don’t want to have to rely on the University’s defense of you in court. We bet you don’t want to get sued to begin with, even if you have representation! That’s where our office’s efforts come in. *What has now changed as of this week is that someone can no longer bring one of these “small claims” against you in the CCB proceedings* because you will now be covered by an opt-out provision we helped secure. I’ll explain that next. *What does it mean for the Library to “opt out” of the CCB?* The CASE Act allows libraries and archives to “opt out” of these small claims proceedings. This is an effort to discourage trolls and promote fair use, a doctrine that Congress understood that libraries rely on all the time. If a library prospectively opts out of the small claims proceedings, that means that no copyright holder can ever bring a CCB claim against the library. Wwe’ve helped ensure that *a library’s decision to opt out of the CCB also extends to library employees*. So, when the UCB Library opts out of the CCB — which it will — you no longer have to worry that one of these “small claims” will be brought against you as an individual regarding work you do in your employment. (You can still have a CCB claim filed against you if you’re sitting around at home unlawfully uploading content not related to work. So, don’t do that.) In helping to secure the extension of library opt-outs to library employees, we worked very hard co-leading UC systemwide and national efforts to advocate before the Copyright Office in their rule setting procedures. And our legal reasoning <https://www.regulations.gov/comment/COLC-2021-0003-0087> was very persuasive! *Where does all of this leave you with copyright infringement?* If a rights holder legitimately believes that you, a library employee, has infringed their copyright, they will need to proceed through federal court (rather than the CCB) against like with any ordinary copyright claim. And that means a much higher damages threshold, etc. This will discourage suits being filed against you as an individual because —even setting aside your fair use defense—it’s not likely that someone will have suffered the requisite $75K in damages from your having posted a photo to a lib guide. And remember that, if for some reason you do get sued in federal court, the University will defend you if you made good faith efforts (like those we set forth *here*) to make fair uses <https://docs.google.com/document/d/1BO-4FOMdz8qj3HrDh-LVe9AkwcxaO_Wpm-hVR8boqN0/edit#heading=h.syitrc4j6ucp> . *How does this new law affect the rest of campus—i.e. beyond Library employees?* While libraries and library employees don’t have to worry about CCB claims because of the preemptive and prospective library opt-out option, the same is not true for scholars and students like the graduate student example I gave above. For the rest of campus, we have this guidance <https://www.lib.berkeley.edu/scholarly-communication/copyright/small-claims> in place about how they can be affected by the CASE Act, and what their options are if they receive a notice of small claim filed against them. We’ve coordinated with UC systemwide counsel on all of this, so you can feel free to direct anyone with questions to that page or to us. We love making sure that federal copyright policy properly supports scholars and libraries, and this was a very important one! We’re thrilled to have played a significant role working with a strong community in bringing this opt-out rule to fruition. Have a lovely weekend, and don’t forget to advance your clocks. Best, Rachael, Tim, Michael, & Erin -- Rachael G. Samberg, J.D., MLIS Scholarly Communication Officer & Program Director Office of Scholarly Communication Services University of California, Berkeley Doe Library, 189 Annex Berkeley, CA 94720-6000 Pronouns: she/her *Guidance*: lib.berkeley.edu/scholarly-communication *Updates*: @UCB_ScholComm -- Rachael G. Samberg, J.D., MLIS Scholarly Communication Officer & Program Director Office of Scholarly Communication Services University of California, Berkeley Doe Library, 189 Annex Berkeley, CA 94720-6000 Pronouns: she/her *Guidance*: lib.berkeley.edu/scholarly-communication *Updates*: @UCB_ScholComm