![\"Student](\"https:\/\/archive-lynchlaw.pfgsandbox.com\/wp-content\/uploads\/2020\/04\/blur-close-up-focus-gadget-574285.jpg\")
<\/p>\n<\/p>\n
ARRRRRR!! There was an important US Supreme Court case Allen vs. Cooper (no. 18-877)<\/em><\/a> decided on March 23, 2020. It struck down the Copyright Remedy Clarification Act<\/a> (CRCA) which allowed copyright owners to sue States for copyright infringement (using another\u2019s work without their permission).<\/p>\n The Allen<\/em> case centered around a videographer, Frederick Allen, who documented a private salvaging company\u2019s effort to procure artifacts from the wreckage of Queen Anne\u2019s Revenge, the ship that belonged to the infamous pirate, Blackbeard. The state of North Carolina twice used Allen\u2019s copyrighted videos without his permission. The first go-around, North Carolina settled with Allen for $15,000 and took down the videos. The second time, North Carolina enacted \u201cBlackbeard\u2019s\u201d law which made all documentary materials of a derelict ship\/shipwreck and its artifacts property of the State of North Carolina as a public record (talk about legal piracy!!) Allen sued North Carolina under the CRCA, while North Carolina claimed sovereign immunity under the Eleventh Amendment. The US Supreme Court held that Congress lacked authority to abrogate the States\u2019 immunity from copyright infringement suits in the CRCA. Basically, the CRCA is unconstitutional for failing the \u201ccongruence and proportionality\u201d test. As of now, States cannot be sued for damages for copyright infringement, though injunctive relief is still an option for copyright holders.<\/p>\n So, what does this have to do with the COVID-19 crisis? Because of mandatory stay at home orders issued by many localities or by entire States, educational institutions have had to become fully functional online learning facilities. Normally, when an educational institution (or their educators) provides (physically or digitally) learning material for which they don\u2019t have a license, they are allowed to do so under the Fair Use doctrine. Fair Use allows for the use of another\u2019s copyrighted work without their permission when it is used for purposes such as criticism, comment, news reporting, teaching (including\u00a0multiple\u00a0copies\u00a0for classroom use), scholarship, or research (17 U.S. Code \u00a7 107)<\/a>.<\/p>\n So, for example under normal circumstances, if an educator wants to supplement their teaching with an article from an unlicensed journal or a chapter from an alternative textbook, generally speaking, the educator is allowed to provide their students with this material under Fair Use. As long as they only provide the material necessary to cover the topic (not the entire journal\/textbook) and only the number of copies necessary.<\/p>\n However, in this new COVID-19 age of remote learning, the Fair Use analysis will most likely be expanded to cover all materials being transferred over to the remote learning platforms that educational institutions are now required to use to facilitate their teaching missions during this crisis. Many students do not have access to their textbooks at this time because they were left at school or in their dorm rooms when the shutdowns were initiated. Educators are now providing digital copies of the materials they would have previously distributed to students in hard copy; potentially without an explicit license to do so.<\/p>\n Even in this COVID-19 crisis, educators should keep the Fair Use factors in mind and not go hog wild in providing unlicensed material. Only the materials necessary for teaching their lessons should be provided. However, as many educational institutions are part of a State\u2019s system of education, the Allen<\/em> case now provides some extra risk mitigation because they are under a State\u2019s sovereign immunity with regards to copyright infringement. But even though State educational institutions can\u2019t be sued for damages, they still can be subjected to injunctions and ordered to stop providing unlicensed materials. ARRRRRR!<\/p>\n Kathleen\u00a0Kuznicki<\/a>\u00a0assists business owners, entrepreneurs and inventors with all things related to intellectual property and brand protection, including patents, trademarks, copyrights and licensing. She can be reached via email at\u00a0Kathleen Kuznicki\u00a0or (724) 776-8000.<\/p>\n","protected":false},"excerpt":{"rendered":" ARRRRRR!! There was an important US Supreme Court case Allen vs. Cooper (no. 18-877) decided on March 23, 2020. It struck down the Copyright Remedy Clarification Act (CRCA) which allowed copyright owners to sue States for copyright infringement (using another\u2019s … Blackbeard’s Law<\/h3>\n
Fair Use Doctrine<\/h3>\n
Fair Use determination is decided on a case-by-case basis utilizing a four-factor analysis:<\/h3>\n
\n
Remote Learning Considerations and Fair Use<\/h3>\n
Pittsburgh Intellectual Property Attorneys<\/h4>\n