LEGAL ISSUES

Section Editors: Bruce Strauch (The Citadel, Emeritus) Jack Montgomery (Western Kentucky University) Legally Speaking — The Covid-19 Stimulus Bill and Copyright Column Editor: Anthony Paganelli (Western Kentucky University)

fter months of arguments and negotiations, the federal fringement and avoid extensive legal fees. Secondly, it may provide government passed the Covid-19 Relief and Government a platform for copyright owners seeking quick financial resolution. AFunding bill on December 27, 2020. As with many bills Yet, numerous artist organizations support the CASE Act. created and passed in Congress, there are often other bills Rosenbaum (2020) noted the statement released by the orga- attached to the major bill. In the over 2,000 pages Covid-19 nizations that stated, “We also welcome the inclusion of con- Relief and Government Funding bill, numerous other bills were sensus-driven intellectual property reforms in the omnibus bill. attached that included two acts regarding copyright law. The The Copyright Alternative in Small-Claims Enforcement (CASE) Act Copyright Alternative in Small-Claims Enforcement Act of 2020 or and Protect Lawful Streaming Act (PSLA) will strengthen creators’ also known as the CASE Act and Protecting Lawful Streaming Act ability to protect their works against infringement online, and were attached to the December 2020 Stimulus Bill. promote a safer, fairer digital environment, which are While the CASE Act and the Protecting Lawful Streaming particularly needed as the arts struggle to survive the Act was attached to the Stimulus Bill, these copyright pandemic. We look forward to continuing our work legislations have been a work in progress for nearly to provide greater relief for the American creative 10 years. The legislation went through several community” different hearings and revisions before it passed The CASE Act provides revisions to the Copy- the House of Representatives and then sent to the right Code U.S.C. 17 most notably the opportunity Senate committee that was unopposed and then for copyright owners to avoid filing copyright included with the Stimulus Bills. infringement lawsuits in the federal courts. The The Protecting Lawful Streaming Act regards act allows the copyright owners to seek actual or the 18 U.S.C. § 2319C Criminal Infringement of a statutory damages within a specific financial range. Copyright and the 17 U.S.C. § 506 Criminal Offenses. This range stated that no more than $15,000 can The criminal offenses and the criminal infringement be awarded per copyrighted work, $7,500 per work, stated in the U.S. Codes regards the type of criminal and not more than $30,000 in a single proceeding. In charges for the reproduction and distribution of addition, attorney fees can be recovered if the case was copyrighted works, which a felony charge is the type of criminal in “bad faith conduct” and this does not exceed $5,000. For charge for violating the criminal offenses. those Per Se cases, the amount is $2,500. According to JDSU- The streaming act addresses the criminal charges for violating PRA, “bad faith conduct occurs if it is established that a party streaming copyrighted works, because the change in technology pursued a claim, counterclaim, or defense for a harassing or has created a need for more strict laws to prevent the abuse of other improper purpose, or without a reasonable basis in law streaming copyrighted works. The Protecting Lawful Streaming or fact” (2021). The claims board can also require the infring- Act places a felony penalty against those that violate the U.S. er cease the infringement and to “cease sending a takedown Code, along with an up to 10 year prison sentence. The act notice” (JDSUPRA, 2021). does not pertain to the user of the streaming content, rather In order for copyright owners to avoid filing with the federal the “digital transmission service” that violates the provisions courts, the act creates a Copyright Claims Board to oversee stated in the act (Dunn, 2020). the infringement suits that is “within the Copyright Office in The most interesting act in the Stimulus Bill is the CASE Washington, D.C.” (Dunn, 2020). The board is comprised of three Act, which provides those copyright owners an opportunity to copyright claims officers appointed by the Library of Congress seek damages for copyright infringement that does not exceed with four, five, and six years respectively” (JDSUPRA, 2021). To a specific financial limit. Prior to this act, copyright owners had help the board, Copyright Claims attorneys will be hired. to file a claim with the Federal courts, which was extremely time In order to file a claim with the Copyright Claims Board, the consuming. In addition, several cases of copyright infringement claim must be “infringement, declaration of non-infringement, did not seek large monetary damages that would not deem wor- misrepresentation in connection with a notification of claimed thy of a file within the Federal courts, therefore theCASE Act of infringement, and legal or equitable defenses brought in re- 2020 provides a legal resolution for copyright infringement cases. sponse to such a claim” (JDSUPRA, 2021). Those claims that The CASE Act of 2020 basically offers two outcomes. First, the are statutorily excluded are “claims not identified as permitted, act provides a system that would encourage against copyright in- claims previously adjudicated by a court or pending before a

28 Against the Grain / February 2021 court unless the court grants a stay permitting the Copyright Rosenbaum (2020) provided further information about the Claims Board to proceed, claims against Federal or State gov- legislation with Copyright Alliance’s CEO Keith Kupferschmid ernmental entities, and claims against person residing outside statement, “For far too long, these individual creators have had the United States unless that person initiates the proceeding” rights but no means of enforcing them due to the expense and (JDSUPRA, 2021). complexity of federal court.” Kupferschmid noted that the CASE Interestingly, these small claims submitted to the Copyright Act would provide copyright owners an inexpensive way to seek Claims Board are reviewed in the Board’s office, without the damages for copyright infringement. parties involved to be in appearance. In fact, the claims are The CASE Act has the potential to efficiently streamline submitted and reviewed through electronic sources. In addition, copyright infringement cases, yet there is concern about whether hearings and conferences are conducted via online applications the copyright tribunal would effectively and fairly resolve these unless the claims board cannot access the physical information issues that would be best tried in the Federal court system. In through electronic documents. JDSUPRA (2021) noted that “The addition, there has to be concern whether the tribunal would Copyright Claims Board may make arrangement for certain send the complicated and unresolved cases to Federal court, physical or nontestimonial evidence that cannot be presented which could be significant in the interpretation of the U.S. in this manner.” Of course, the board must abide to Federal Copyright Law. regulations regarding Copyright infringement. This act appears to be a fast-track resolution to resolving References copyright infringement cases based on the monetary damages Copyright.gov. (2020). Congress passes CASE Act of 2020 and sought by the copyright owner. Without a doubt, those low law regarding unauthorized streaming services. Issue no. 866. monetary claims will move quickly through the Copyright Claims Retrieved from https://www.copyright.gov/newsnet/2020/866. Board for a resolution, yet some issues may arise throughout this html#:~:text=Late%20last%20night%2C%20Congress%20 new system that includes copyright holders taking advantage passed,the%20Consolidated%20Appropriations%20Act%2C%20 of the system. 2021. For instance, in my Against the Grain article “Creative Com- Dunn, Gibson. (2020). Covid-19 Relief Bill creates new mons and Infringement” I noted that a photographer allowed small claims copyright board, stronger criminal penalties for the use of his works for free based on the Creative Commons illicit streaming. Retrieved from https://www.gibsondunn.com/ Licensing agreements. However, the photographer filed numer- wp-content/uploads/2020/12/covid-19-relief-bill-creates-new- ous infringement lawsuits in the Federal Court. These suits filed small-claims-copyright-board-stronger-criminal-penalties-for- by the photographer eventually gained him the attention of a illicit-streaming.pdf. judge that labeled him based on his numerous lawsuits as the JDSUPRA. (2021). Congress passes CASE Act of 2020 and “Copyright Troll” (Paganelli, 2021). In other words, the CASE Act law regarding unauthorized streaming services. Retrieved from of 2020 could increase the actions from copyright owners against https://www.jdsupra.com/legalnews/congress-passes-case-act-of- those utilizing their works in an effort towards monetary gain. 2020-and-8502725/. Of course, there is opposition from other organizations re- Paganelli, A. (2021). Creative commons and infringement. garding the legislation being included and passed via the Stim- Against the Grain, 32(6). ulus Relief Bill. Rosenbaum noted that the Electronic Frontier Foundation was not in favor of the legislation. According to Rosenbaum. C. (2020). Congress passes CASE Act of Covid-19 Rosenbaum (2020), “The Electronic Frontier Foundation’s as- relief bill. Billboard. Retrieved from https://www.billboard.com/ sociate director of policy and activism, Katharine Trendacosta articles/business/9503848/congress-case-copyright-reforms-covid- called the legislation unconstitutional by putting a court in the 19-relief-bill/. Library of Congress, which is part of the legislative branch.” The associate director also mentioned the legislation penalizes creators and provided an outlet for those that infringe on copy- righted works to avoid the court system.

Against the Grain / February 2021 29 Questions & Answers — Copyright Column Column Editor: Will Cross (Director, Copyright & Digital Scholarship Center, NC State University Libraries) ORCID: 0000-0003-1287-1156

QUESTION: A new librarian asks, “How can I get up to In addition to these established programs, several new speed on copyright issues in librarianship and publishing?” training programs have emerged in the past year or so. In ANSWER: Given the inconsistent and patchwork nature 2020 LYRASIS Learning, in partnership with the Columbia of copyright education in LIS programs, this is an evergreen University Libraries’ Copyright Advisory Services, launched a topic and I’m happy to share some resources for anyone who new Virtual Copyright Education Center. The Center will offer is new to copyright issues, or just wants to keep up with the a free Copyright 101 course as well as a set of more advanced latest developments in the field. There are several well-known courses in Limitations and Exceptions, Fair Use, and Copyright in standards in the field and a set of exciting new programs that Action. Details are available through this release: https://blogs. may be worth exploring as well. cul.columbia.edu/spotlights/2021/02/03/online-copyright-classes/. For many years, the go-to resource for librarians who wanted Another recent program — the Library Copyright Institute to learn more about copyright through self-study was Kenneth — offers community-based copyright training for librarians Crews’ book Copyright for Librarians and Educators: Creative specifically targeted at institutions with fewer resources and no Strategies and Practical Solutions (2020). Written for an educated copyright expert on staff. I have had the pleasure of developing lay audience, this book introduces the fundamentals of this program with colleagues in North Carolina’s Research Tri- copyright from a library perspective, with special angle. The first in-person training was offered at no cost with attention paid to the copyright exceptions and support from the Institute of Museum and Library Services in common cases most relevant to librarians. 2019 and is developing online training to be offered later Crews’ book — which was recently released as a in 2021. All materials can be found at: http://library. Fourth Edition — pairs well with other excellent copyright.institute/. standards such as Carrie Russell’s Complete These materials represent the tip of the iceberg Copyright for K–12 Librarians and Educators in terms of copyright training. As with any topic, (2012) and the more recent Coaching Copyright the best way to learn about copyright is to go to (2019) edited by Kevin Smith and Erin Ellis. I relevant sessions at the conferences you attend, have used each of these in my own LIS course follow librarians and others who discuss copy- on Legal Issues for Librarians and was pleased to right on social media, and add your own voice contribute a chapter to the Coaching Copyright to these discussions. book. In a related development, I also wanted to For librarians looking for more formal training, highlight the announcement of a new advocacy there are several excellent options. Harvard’s organization in library copyright. Library well-known CopyrightX offers guided, 12-week Futures is a new group focused on protecting libraries’ online courses, including a course specifically designed for right to own and lend digital materials as well as patrons’ rights librarians. More information on the program, including an open to access and privacy. The group launched in early 2021 and has version of the syllabus, is available at: http://copyx.org/affiliates/ offered programming and an advocacy campaign. It looks to copyrightx-libraries/. Coursera also offers a self-paced massive be a group to follow for library copyright issues. You can read open online course (MOOC) on Copyright for Educators and more about the group’s mission and work here: https://www. Librarians designed by lawyer-librarians from Duke University, libraryfutures.net/. Emory University, and the University of North Carolina at Chapel QUESTION: A university press editor asks, “How can I make Hill. As is the case with many MOOCs, you can audit the course sure I’m doing everything I need to do to register copyright in for free or choose to purchase a certificate upon completion that the works we publish?” can be added to a CV or online profile. More information and all the materials are available at: https://www.coursera.org/learn/ ANSWER: While the United States moved away from copyright-for-education. requiring any formalities for a work to qualify for copyright In addition to library copyright-specific courses, many online protection several decades ago — copyright exists from the courses for librarians in adjacent topics offer information on moment the work is created — there are many advantages to copyright as it relates to the topics covered by those courses. registering a work with the Copyright Office. Registration The Creative Commons offers a Certificate for Educators, Academic creates a public record of the work and of ownership. It also Librarians, and GLAM that includes some information on copy- offers advantages for creators who want to be prepared for right fundamentals. As with the MOOC above, all materials are potential litigation, including eligibility for statutory damages freely available, and a formal certification is offered for a fee at: and attorney’s fees, as well as prima facie evidence of ownership https://certificates.creativecommons.org/cccertedu/. In 2021 the if registration occurs within five years of publication. The Association of College and Research Libraries’ (ACRL) popular Copyright Office’s Circular 1 offers an overview of the process and long-running Scholarly Communication Roadshow moved and benefits of registration: https://www.copyright.gov/circs/ online to offer a new Off-Roadshow series that includes coverage circ01.pdf#page=5. of copyright issues. The course and all materials are available Registration itself is fairly simple and recent updates to the at: http://www.ala.org/acrl/conferences/roadshows/offroadshows. Copyright Office’s online systems makes the process even easier.

30 Against the Grain / February 2021 Works can be registered individually or as a group at: https:// NOT in the Hat! simply took elements of the Dr. Seuss style www.copyright.gov/registration/. from multiple Seuss works and applied them in the retelling In January of 2021, the Copyright Office released the of the trial. Because it did not offer commentary or critique latest Compendium of U.S. Copyright Office Practices. The of Seuss or any of his books directly, the court found that the Compendium is a treasure trove for copyright nerds, offering author’s use was simply “to get attention” or perhaps “to avoid official interpretations of many issues in copyright, particularly the drudgery in working up something fresh.” In the absence related to registration of copyright claims, documentation of of direct commentary that added new meaning or message, the copyright ownership, and recordation of copyright documents, court held that the use was not a parody, not transformative, including assignments and licenses. It offers detailed and and not permitted under fair use. useful guidance on these questions that supplements the While courts often cite this “parody/satire” distinction, information on the basic Copyright Office resources. The many observers argue that the line between parody and satire Compendium can be found here: https://www.copyright.gov/ can be quite thin. The parodist “Weird Al” Yankovic offers an comp3/docs/compendium.pdf. interesting example through his comedic takes on popular songs. These often do not comment specifically on the original QUESTION: An academic author asks, “What are the song, but do, in a sense “comment” on the original by replacing rules about writing a parody or satire that borrows from an sincere (if often banal) sentiment with silly lyrics that deflate existing work?” the self-serious nature of much popular music. Because ANSWER: On the surface the answer to this question is Yankovic generally gets permission based on ethical rather one of the more straightforward in U.S. copyright law, but than legal concerns, no court has ruled on whether his work things can get a little more confusing around the edges. The would or would not be considered a “real” parody, but these leading case on parody, of course, is the U.S. Supreme Court’s questions seem to turn as much on considerations about artistic 1994 decision in Campbell v. Acuff Rose, holding that the rap expression as they do on legal analysis. group 2 Live Crew’s commercial parody of Roy Orbison’s Oh The Ninth Circuit recently returned to this question about Pretty Woman was clearly protected by fair use. Since that the scope of parody when considering another humorous book decision, however, some courts have drawn a line between building on a popular Dr. Seuss story. Reviewing a copyright parody, which comments on a work directly, and satire, which suit over a book called Oh the Places You’ll Boldly Go that uses an existing work to comment on larger tropes in a genre mashed up Seuss’ college graduation staple Oh the Places You’ll or on broader cultural themes. Go with the TV show Star Trek the Court again found that fair Following Campbell, courts have consistently upheld pa- use did not apply. Citing the earlier Cat NOT in the Hat case, rodic uses in high profile cases such as Leibovitz v. Paramount the court stated plainly that “Boldly is not a parody” because Pictures Corp. (finding fair use when Paramount used a parody it does not critique or comment on the original Seuss book. of Leibovitz’s famous photograph of then-pregnant actress As in the earlier case, the court held that simply “evoking” an Demi Moore to promote the film The Naked Gun 33 1/3) and existing work is not sufficient for fair use if it does not have Suntrust Bank v. Houghton Mifflin Co. (vacating an injunction critical bearing on the substance or style of the original work. prohibiting the publisher of Alice Randall’s 2001 parody, The Although both Dr. Seuss cases come from the frequently Wind Done Gone, which told the story of Gone with the Wind overruled Ninth Circuit, an author today would be wise to from the perspective of an enslaved woman). consider the way those cases illustrate the often-fuzzy line In contrast, courts have often rejected fair use claims where between parody and satire. A work that offers clear and explicit the connection to the work being borrowed is less explicit. For commentary and criticism of the work being parodied will example, in a 1997 case considering a humorous discussion of almost certainly be protected by fair use as a core example of the OJ Simpson murder trial written in the style of Dr. Seuss’ transformative use. If a work borrows protectable elements The Cat in the Hat, the Ninth Circuit affirmed a preliminary for a broader satiric purpose, courts are more likely to reject injunction prohibiting the publication and distribution of The a fair use claim. Cat NOT in the Hat! In that case, the court said that The Cat

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