SCOOP: A CASE of Caution and Concern for Libraries

Read an update on the CASE Act (March 2022)

When rightsholders pursue legal action for copyright infringement, they ordinarily must utilize the federal court system for judgment and remedy. However, the effort and costs attributable to federal court legal action dissuade many to pursue such relief. As part of a large federal spending bill passed at the end of 2020, the Copyright Alternative in Small-Claims Enforcement (CASE) Act was passed into law. The CASE Act allows rightsholders to bypass the federal court system when their damages claims do not exceed $30,000 and instead voluntarily opt-in to having their case heard and adjudicated by a three-member tribunal of the Copyright Office called the Copyright Claims Board (CCB).

CASE for Caution

While on its face this may seem like a positive development for promoting access to adjudication of rights, there is cause for concern that the system will be abused by overly litigious rightsholders or “copyright trolls” and that its availability will chill legitimate uses of copyrighted works, such as those uses that qualify as fair use. This is particularly critical for libraries who not only regularly advise scholarly authors, instructors, and others who make legal use of copyrighted works but who themselves also make copyrighted works available through e-reserves and learning management systems. As such, libraries will need to remain diligent in their utilization of fair use or other copyright exemptions and continue to provide copyright education and guidance to the faculty, staff, and students at their institutions.

CASE for Concern

Libraries should also stay tuned to the SCOOP for updates about the outcome of the Notice of Proposed Rulemaking that was issued by the Copyright Office in September. Under the terms of the CASE Act, certain groups, including federal or state governmental entities, are exempt from being brought in as a party to a proceeding before the CCB. Further, some groups may opt out of proceedings before the CCB. The CASE Act provides a mechanism by which libraries and archives can apply to preemptively opt-out of being named in an action brought before the CCB. However, the above-referenced Notice alarmed many when it indicated that individual employees working at those same libraries and archives were not included in the opt-out. What this means is that employees of libraries and archives would still be subject to legal action before the CCB brought by rightsholders even if the library employing them had opted out. As noted by Library Futures:

A library by itself cannot ‘act’ if its employees, operating within the scope of their employment, do not perform the action. To attempt to separate the library from the library staff does not make sense under any law, policy, or real-world experience.…For librarians, this proposed rule could mean that the simple act of sharing a resource with their users could subject them to liability for doing their job. For example, if a librarian accidentally uploads the wrong version of an article to an institutional repository, they could face legal action from that author’s publisher. To provide another example, if a librarian scans and delivers a digital copy of a material utilizing the legal practice of document delivery, they could be subject to liability.

The Notice and this possible outcome resulted in the filing of numerous public comments by libraries, non-profits, and individuals requesting that the libraries and archives opt-out extends to persons working at those entities. All told, 126 of the 131 comments supported the extension of the opt-out to individual employees. As the Copyright Office finalizes its procedures for the new system, the SCOOP will report on whether these comments held any sway in the promulgation of final rules. At the time of the writing of this SCOOP column, the promulgation of final rules and procedures has been delayed as announced by the Copyright Office.

Additional Reading

• Copyright librarians Sara Benson and Timothy Vollmer provide a legal overview of the CASE Act and its implications for libraries in this op-ed published in the Journal of Copyright in Education and Librarianship.
• Listen to this interview with copyright librarian Kate Dickson about the impact the CASE Act will have on those working in libraries.
• You can read all the public comments filed in response to the Notice of Proposed Rulemaking at the link shared above, but we recommend that you start with the comment filed by the Library Copyright Alliance.

The SCOOP, Scholarly COmmunication and Open Publishing, is a monthly column published to inform Atla members of recent developments, new resources, or interesting stories from the realm of scholarly communication and open access publishing.