A new proposed federal law means that sharing a resource with patrons could violate the law and cost librarians their jobs.
This year, Congress passed the CASE (Copyright Alternative in Small-Claims Enforcement) Act, a controversial 2019 bill that establishes a small-claims court system within the United States Copyright Office. This bill allows copyright owners to seek damages up to $30,000 for copyright violations in a tribunal system. The CASE Act is a major reform to copyright law that creates an “end-run” on federal courts by handling disputes in the Copyright Office – which is not part of the judiciary. While libraries are ostensibly protected from the bill with an “opt out,” the reform pointedly leaves library workers vulnerable. With your help, we can help stop this harmful legislation before it is implemented.
Snuck into the “must-pass” government appropriations bill, the CASE Act is unconstitutional and creates many issues with due process. Under the guise of “protecting creators,” the federal government has once again empowered “sophisticated actors” and trolls over the rights of the public—allowing these bad actors to use litigation as a cudgel. Under this law, internet users could face outrageous penalties in secret courts simply for making a video or sharing a meme.
However, currently there is public discussion about a special part of the CASE Act for libraries. Congress drafted a preemptive “opt-out” for libraries to permanently remove themselves from the copyright small claims court. Yet, despite the Congressional creation of a preemptive “opt-out,” the Copyright Office has recently proposed that the opt-out does not apply to staff working for the libraries. The recent Notice of Proposed Rulemaking from the Copyright Office explicitly keeps the employees subject to legal action and puts on them the responsibility to opt-out or face legal action.
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. This liability for individual library staff acting within the scope of employment is nearly unheard of in law and policy such as employment law, agency law, and library copyright exemptions. 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 Copyright Office has stated that “the CASE Act expressly offers the preemptive opt-out option to ‘a library or archives,’ but does not mention employees.” This is an unrealistic viewpoint – the employees are doing the work of the library. This assertion by the Copyright Office is absolutely preposterous. It completely nullifies the effect of the opt-out or it hangs individual librarians and archivists out to dry. By significantly decreasing the cost of bringing these claims, the CASE Act significantly increases the compliance burden for librarians, which could make the cost burden of common library tasks like institutional repository maintenance or document delivery impossibly high.
For the next few weeks, the Copyright Office is encouraging public comment on the bill, and we want to make sure that the voices of library workers are heard loud and clear.