Copyright Holders Aiming at Schools' Legal Shield

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Washington--Spurred by the rapidly expanding classroom use of such technologies as computers, videocassettes, and high-speed copiers, the copyright establishment is seeking to remove from educational institutions a legal defense that has so far served them well: sovereign immunity.

In the relatively few copyright-infringement suits brought against schools and universities, the 11th Amendment of the Constitution, which protects states and their instrumentalities from being sued for damages in federal court, has been used successfully to bar liability findings.

But a bill in the Congress to amend the federal copyright law would remove that immunity--a turn of events that experts say should make some schools more cautious, but not necessarily more fearful.

The bill, according to school-law and publishing sources, would strengthen the ability of copyright owners to protect their products, but would probably not substantially increase the number of suits filed against schools.

Nevertheless, some experts warn, illegal copying is continuing to occur on a "systematic" basis in education, despite greater efforts to inform the community of the copyright law's provisions.

"Fifty percent of school districts and colleges in the United States systematically infringe the copyright law," said Jerome K. Miller, president of the Washington State consulting firm Copyright Information Services. In most instances, he said, "they are doing it deliberately."

Infringement is most prevalent, according to Mr. Miller, in these areas: taping television shows off the air and keeping them indefinitely; duplicating computer software; and photocopying student workbooks.

"Schools and colleges are not going to significantly change their practices unless there is a real fear of being sued," he said. "And the copyright industry cannot sue effectively now because of sovereign immunity."

In a handful of lawsuits in recent years, book and software publishers have targeted universities, seeking to end copyright infringement and recoup damages. But in several cases, the publishers hit a legal roadblock: Copyright lawsuits must be brought in federal court, yet suits against state universities were thrown out on the basis of the 11th Amendment's sovereign-immunity clause.

Several federal courts have ruled that state universities can claim immunity from copyright lawsuits, and the U.S. Supreme Court this year refused to hear two appeals of those cases, thus leaving the immunity defense intact.

The bill before the Congress could change that by clarifying the 1976 Copyright Act to specifically withdraw immunity from the states for copyright infringement.

"The bill would confirm the principle that the state must observe the federal copyright law," said Dorothy Schrader, general counsel for the U.S. Copyright Office, which backs the legislation. "Our opinion is that this is what Congress intended."

In many states, school districts are considered instruments of state government, and thus could be open to more lawsuits for damages if the bill is passed, said August W. Steinhilber, general counsel of the National School Boards Association.

Mr. Steinhilber expressed special concern that the bill would authorize copyright holders to seek to recover from state entities either actual damages or statutory damages, which could involve thousands of dollars for each infringement.

"We will oppose statutory damages," he said. "It is not the role of a taxpayer to make a publisher rich."

Opinions vary on how widespread copyright violations are in schools and whether passage of the bill would result in more suits against them.

At a House subcommittee hearing last month, the U.S. Register of Copyrights, Ralph Oman, said he believed instances of abuse were relatively few. But allowing damage lawsuits against states, he said, would serve as a further deterrent.

Carol A. Risher, director of copyright and new technologies for the Association of American Publishers, said, "We have not been asked to organize litigation against elementary schools. We found they are very willing to back down [when confronted with violations]."

Nonetheless, she added, "we want to have the opportunity to go to court and sue. Publishers are willing to constantly defend their rights."

This is particularly true in the computer-software industry, one of the parties most interested in the proposed legislation. Software developers have long contended that millions of dollars in sales are lost annually through illegal copying for use on various computers.

"Our concern is that unless we get this clarification, state governments might think they have a license to copy software," said Mary Jane Saunders, general counsel for the Software Publishers Association. "That's a dangerous precedent to set."

Experts say development of more sophisticated software products for the educational market has been slowed because the widespread illegal copying has cut into the profit potential.

"Most software companies are very small--80 percent of them have sales of less than $1 million per year," Ms. Saunders said. "They produce products that may have limited markets but are expensive to develop. If the market is artificially limited because of piracy, then it is not cost-effective for a company to make research and development investments."

Under the copyright law and related guidelines sanctioned by Congressional committees, educators have some latitude in using copyrighted works without getting express permission.

The concept of "fair use" allows limited copying for personal use, research, and teaching. A set of guidelines exists for interpreting the fair-use provision for classroom copying of printed materials, educational uses of music, off-air recording of broadcast materials, and photocopying in libraries.

For example, under the guidelines for taping off the air, educators may tape a television program for showing in the classroom within 10 days, and may store it for 45 days before it must be erased.

In practice, relatively few lawsuits over copyright infringement are ever filed against schools, Mr. Steinhilber and others said, even in cases such as private schools where immunity is not a factor.

"The technique most common now is for an attorney for the copyright holder to send a cease-and-desist letter to the school officials," said Mr. Miller, the copyright consultant. "It's to just scare the pants off the school superintendent."

"We have not sued any public schools for software piracy," said Ms. Saunders of the software publishers' group. "We have made an association decision that we will not go after any nonprofit or educational group, or any juvenile."

However, one association member, the software company bv Engineering, attempted to sue the University of California at Los Angeles recently for allegedly copying its products. Ucla successfully used the defense that it was a state agency immune from the suit under the 11th Amendment.

A number of organizations offer guides to copyright law for the schools.

Among the most comprehensive is a 121-page guide written by Mr. Steinhilber for the Council of School Attorneys of the NSBA. It is available for $8 for members and $10 for nonmembers from the NSBA, 1680 Duke St., Alexandria, Va. 22314.

Just published by the Public Broadcasting Service's Education Clearinghouse is "Copyright: Staying Within the Law, a Resource Guide for Educators." It focuses on the use of videotapes and off-air recordings of television programming by schools.

The booklet may be ordered for $7.50 from the PBS Elementary/Secondary Service, 1320 Braddock Place, Alexandria, Va. 22314.

Vol. 08, Issue 33

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