Submission Date:
Question:
The CASE Act has a provision for libraries to preemptively opt out of CCB proceedings. If we opt out at the institutional level, does that cover individual library employees?
Opting out seems like a good course of action for our institution but I wonder if there are reasons why we should not opt out.
Answer:
For this question, "Ask the Lawyer" brought in "Authorlaw.com" and copyright attorney at the Law Office of Stephanie Adams, Sallie Randolph, as a guest author. Many thanks to Sallie for crafting this answer as the CASE Act unfolds.
The final rule applies a library's or archives' opt-out election to both the qualifying entity and its employees for activities within the employee's scope of employment. Therefore, the answer to the first part of this question is yes. All employees of the institution that has opted out are covered as long as the employees are operating within the scope of their employment.
Opting out seems like a good course of action for our institution but I wonder if there are reasons why we should not opt out.
There are several factors that may influence a library’s decision to opt out or not. The Copyright Claims Board (CCB) is new.[1] It heard its first cases in April of 2022, so there is not much historical data that can inform a decision either way. It might be wise to defer such a decision until the CCB has a longer track record.
Keep in mind that a library can always opt out of an individual case by filling out a simple online form. Therefore, there is no real risk in deferring the opt out decision until later, perhaps after a first claim is made. Depending on the nature of the claim, it is possible that defending in the CCB would be preferable to defending the same claim in federal court. Opting out preemptively would deprive the library of this flexibility.
So far there have not been any cases filed against a library, at least not any listed on the CCB cases website: https://dockets.ccb.gov/search/cases. And so far, no cases have yet been closed, so final results are unknown.
To date, relatively few libraries have opted out. Those libraries are listed at https://www.ccb.gov/libraries-archives-opt-out/.
Given the early stage of CCB operations and the relative lack of useful data, I would be tempted to defer a final decision on preemptive opt out until more information is available. Until then you can easily opt out on a case-by-case basis.
[1] For more on the Copyright Claims Board (CCB), see https://www.ccb.gov/about/
