The copyright universe did not slow down one bit this summer, it seems. In this post I’ll share some updates from agencies, courts, and even international policymaking bodies, all of whom were busily cranking out copyright news, undeterred by heat and undistracted by our fleeting ‘return to normal.’ 

We begin with breaking news from the US Copyright Office, which released a study on State Sovereign Immunity on August 31. The US Constitution gives states and state entities (like universities) immunity from lawsuits under federal law unless Congress clearly takes away that immunity based on strong evidence of constitutional harm. After a recent Supreme Court opinion confirmed that states continue to be immune from copyright infringement suits, Senator Thom Tillis asked the Copyright Office to conduct a study to see if there was evidence of constitutional harm strong enough to support a new law to strip states of their immunity. The Study summarizes evidence submitted by rights holders and state entities, then concludes that the evidence likely does not reach the level required to strip states of their immunity. This is good news for state institutions that take some comfort in flexing fair use rights in the face of uncertainty, knowing that the stakes are not as high as they would be if the full weight of federal damages could be brought to bear. However, the Office recommends an alternative strategy, requiring states to waive their immunity in order to benefit from copyright protection for their own works. The result could be the same as abrogation—states and state entities could be sued for the full range of copyright damages. It would be up to each state to determine whether to waive immunity, however.

The courts have also been busy with copyright issues this summer. Here are a few key copyright developments in the courts that could have implications for software preservation:

  • In Access Copyright v. York, the Supreme Court of Canada issued its final opinion in an epic battle involving educational uses of excerpts from textual works and the scope of “fair dealing” in Canadian copyright law. The Authors Alliance (who filed a brief in the case siding with York) has an excellent summary of the decision. The Court sided with York University on key issues, including ruling that Access Copyright (a collective licensing organization that offers blanket licenses to universities for educational copying) could not compel universities to purchase its blanket license for educational copying. In the course of its opinion, the Supreme Court emphasized that fair dealing should be interpreted with an eye to serving the public interest, concluding that, “At the end of the day, the question in a case involving a university’s fair dealing practices is whether those practices actualize the students’ right to receive course material for educational purposes in a fair manner, consistent with the underlying balance between users’ rights and creators’ rights in the Act.” The Court’s continuing emphasis on balance and the value of access should be welcome news to SPN members in Canada! 
  • The U.S. dispute between Apple and the security research platform Corellium took some zig-zag turns in recent weeks. The case has been of great interest to SPN members because it involves hardware emulation and research access to software, and because the district court ruled late last year that Corellium’s use of iOS was a transformative fair use. Early in August, several news outlets reported that Apple and Corellium had settled, but just a few days later the news broke that Apple had appealed the lower court’s fair use ruling. It appears that although the DMCA claims were settled, the copyright infringement claims live on. Luckily, Forbes reports that Corellium has retained a lawyer with a winning track record on software and fair use—Tom Goldstein, who argued victoriously for Google in its Supreme Court battle with Oracle.
  • Speaking of the Supreme Court, its recent opinion in TransUnion v. Ramirez may be a low-key boon to many in the cultural heritage community. The case was not a copyright case at all—it involved the Fair Credit Reporting Act and consumer class action lawsuits against credit reporting agencies—but in its opinion the Court addressed the all important question of standing, in other words, who may bring a lawsuit in federal court over alleged violation of a statute. The court held that only a plaintiff concretely harmed by a defendant’s alleged violation has standing to sue under Article III of the Constitution. As Jonathan Band has explained in connection with the vexed issue of embedded content online, the TransUnion principle could be a balm to anyone whose activities involving in-copyright works may be in a legal gray area, but where no one is harmed as a result. In such cases, under TransUnion, no one will have standing to sue. It seems likely that many research uses of out-of-commerce software fit into this category, such that even if the scope of fair use or other protections could be debated, the use is harmless, and thus no one has standing to sue over it. 

In the international realm, a representative from SPN (Ana Enriquez, Scholarly Communications Outreach Librarian at the Penn State University Libraries) attended this summer’s virtual meeting of the WIPO SCCR—a key body in international copyright policymaking. Ana reported back to the Law and Policy Working Group on what she observed in the meeting, including contentious debate about the question whether and how to foster limitations and exceptions for preservation, education, and research. Progress at WIPO is notoriously slow, but it is good that SPN now has access directly to WIPO deliberations, and through our participation in the Access to Knowledge coalition, we are able to advocate for a more balanced international copyright system. Sean Flynn, a leader of that coalition and law professor at American University, prepared this public summary of the meeting.

Preferred citation:

Butler, Brandon. (2021, September 1). No Summer Break for Copyright Law and Policy!. Software Preservation Network.