Comments of the Software Preservation Network in re Small Claims Procedures for Library and Archives Opt-Outs and Class Actions (1)
October 4, 2021
Thank you for this opportunity to comment on the proposed regulations implementing 17 U.S.C. 1506(aa)(1), which directs the Register of Copyrights to “establish regulations allowing for a library or archives that does not wish to participate in proceedings before the Copyright Claims Board [CCB] to preemptively opt out of such proceedings.” We write to emphasize the importance of including employees in the scope of a library or archives’ preemptive opt out. Software collections reside in a diverse variety of libraries and archives, but all of them rely on their professional staff to carry out the preservation mission. An opt out mechanism that leaves staff exposed to CCB proceedings would be cold comfort to any library or archives that “does not wish to participate” in the CCB.
Jurisdiction Over Employees Is Jurisdiction Over Libraries and Archives
Libraries and archives as institutions may have separate legal existence, but they cannot act except through their employees. SPN member institutions collect and preserve software only through the expertise and dedication of employees who carry out our mission. To effectively shield the activities of libraries and archives from CCB jurisdiction, the final rule must apply to the librarians and archivists who carry out those activities. Otherwise, every act of a library or archives will remain subject to CCB jurisdiction. The NPRM’s proposed rule turns the statutory shield into an empty formality, easily circumvented by clever pleading.
If the opt out excludes employees, the burden on SPN member institutions will be felt immediately. Institutions that had planned to opt out will nevertheless have to develop policies, processes, and resources to educate and prepare employees for a possible CCB complaint. These are surely among the burdens a library or archives would seek to avoid by opting out, as their expense is likely to be a primary reason a library or archives would “not wish to participate” in CCB proceedings in the first place. The initiation of CCB proceedings against an employee will only draw the library or archives further into the system the statute promised to enable it to avoid, triggering engagement with counsel and others. An opt out that excludes employees will ensure institutions bear these costs regardless of their “wish,” in direct contravention of the statute.
The opt out provision is not discussed in congressional reports on the bill, but legislative intent is not hard to reconstruct from the public record of debate around the bill. Library and archives groups were among the key stakeholders who expressed concern about the CASE Act as it was being debated in Congress, arguing that “the opt-out mechanism will impose a heavy burden on libraries” due to the typical library’s position within a larger institutional bureaucracy that would be required to engage with each new claim(2). The addition of a preemptive opt out clause for libraries and archives could only have been meant to reassure legislators that these entities could avoid this “heavy burden” by opting out a single time from all future proceedings. Subjecting employees to CCB proceedings triggers the very same institutional bureaucratic processes, reimposing the “heavy burden” this provision was meant to lift. Only by including employees can the regulations preserve legislators’ reasonable expectations about the implementation of this part of the CASE Act.
Protecting Employees Is Consistent with Agency Law Principles
After the CASE Act became law, concerns about excluding employees from the opt out were raised at length by multiple library and archives groups in response to the initial Notice of Inquiry, and the Office recapitulates these concerns in its Notice of Proposed Rulemaking. The sole reason cited for rejecting these arguments is their purported inconsistency with a common law agency principle regarding liability. However, as other groups explain in their responses to this Notice(3), the final regulations can give employees the protection they need without creating any tension with agency law.
The rules implementing Section 1506(aa)(1) will limit the jurisdiction of the CCB, not the ultimate liability of the parties. As evidenced by the library and archives opt out provision itself, the statute does not grant the CCB jurisdiction over every party that could potentially be liable for copyright infringement under the Copyright Act. Thus, there is no conflict between including employees in the institutional opt-out from CCB jurisdiction while recognizing that they (and their employers) may be judged liable in another venue for infringing acts in the scope of their employment.
Even in the realm of liability, agency law recognizes that a principal’s privilege(4) against liability may be delegated to its agents, especially when doing so is consistent with the purpose of the privilege. Agency law is therefore no barrier to including employees in the institutional opt out.
Thank you for this opportunity to share our views.
(1) Prepared for SPN by Brandon Butler, Law and Policy Advisor. The Software Preservation Network (SPN) is a coordinated, distributed effort to ensure long term access to software through community engagement, infrastructure support and knowledge generation. SPN believes that software should be curated and preserved because it is both a dependency to access existing digital data and because it has intrinsic cultural value due to its mediating role in our lives. The core of SPN’s constituency consists of 20 institutional members from a group of universities, museums, and research institutions. In addition to the financial support of its institutional members, SPN has led projects funded by the Alfred P. Sloan Foundation, the Andrew W. Mellon Foundation, and the Institute for Museum and Library Services. See https://www.softwarepreservationnetwork.org.
(2) See, e.g., Library Copyright Alliance, “LCA Sends Letter Urging Vote Against the CASE Act of 2019,” October 21, 2019, https://www.librarycopyrightalliance.org/documents/united-states-documents/other-legislation/lca-sends-letter-urging-vote-against-the-case-act-of-2019/. LCA also laments that the version of the CASE Act then being considered had removed a preemptive opt out provision, imposing on any library or archives “the significant cost of opting out each time it is sued.”
(3) See, e.g., Comments of University Information Policy Officers 3-4 (explaining distinction between liability and jurisdiction, and availability of privilege for an agent acting on behalf of privileged principal).
(4) Restatement (Third) of Agency Sec. 7.01 Comment e. (Am. Law Inst. 2006).