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Many of us know little about our own liability for copyright infringement (direct individual liability) or our liability for the infringement of others (vicarious liability). Individual liability is fairly straightforward. Individuals are responsible for their own actions. If an individual infringes, that individual will almost always be legally liable. Vicarious liability is more complicated. The law will only hold a person or entity responsible for the copyright infringements of another under three circumstances: employers are often liable for the infringements of an employee acting within the scope of employment; one who has contracted with another to provide a service is often liable for the infringements of the independent contractor; and one who knowingly participates in or provides the means to carry out a direct infringement can be jointly liable with the direct infringer. These are referred to respectively as respondeat superior or agency liability, vicarious liability and contributory liability.
Even if a University or its employees might be liable for infringement directly, or under one of these theories of vicarious liability, it is possible that either sovereign immunity or qualified immunity could apply in some circumstances to shield state Universities from liability for money damages. This article explores these possibilities.
The three theories of liability apply under different circumstances so certain facts are critical to determining whether a University might be liable for the infringements of faculty members. The most important facts include the employment or contractual relationship, the scope of employment, especially as it concerns those activities that can result in infringing acts, and for contributory liability, the knowledge of University personnel about the activities of direct infringers and the activities of University personnel that might contribute towards an infringement.
Since respondeat superior liability depends on an employment relationship between the direct infringer and the University and a certain scope of the direct infringer's duties and responsibilities, we will explore what is generally, if not always, true about that relationship and the scope of employment. These are the facts that we will later apply to the rules of agency liability to see whether Universities are likely to be found liable for faculty infringements under this theory.
If there is no employment relationship, other issues become important: whether the University directly benefits from the direct infringement and whether it has control over the actions of the direct infringer.
The facts that would establish contributory infringement are likely to be very case-specific. There probably are no generally true statements one could make about the relationship between a University and its faculty members that would tend to show whether Universities would be held liable for faculty infringements on this theory.
The Supreme Court has indicated in the Reid case (cited below), that courts must look to general common law, rather than any particular state's common or statutory law, to determine issues of agency and the scope of employment as that law is set forth in the Restatement (Second) of Agency. In accordance with § 228, a University may be liable for the infringements of a faculty member under the theory of respondeat superior where the faculty member is shown to be an employee and the infringement (i) is an activity of the kind the faculty member is employed to perform (one within the employee's general scope of authority); (ii) occurs substantially within the authorized time and space limits; and (iii) is actuated, at least in part, by a purpose to serve the employer, that is to further the employer's business and accomplish the objective for which the employee was hired. Restatement (Second) of Agency § 228 (1958).
The employment relationship is established through analysis of at least thirteen (13) factors including whether the hiring party has the right to control the manner and means by which the hired party's job is accomplished; the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166 (1989).
Acts falling within the general scope of the employee's authority are those of the same general nature as authorized acts or incidental to authorized acts. Aversa v. U.S., 99 F.3d 1200, 1212 (1st Cir. 1996); Miller v. CP Chemicals, Inc., 808 F. Supp. 1238, 1283 (D.S.C. 1992). Even if the act is contrary to express orders, so long as it is within the general authority, the employer will be liable. M. Witmark & Sons v. Calloway, 22 F.2d 412, 414 (E.D. Tenn. 1927); Aliota V. Graham, 984 F.2d 1350, 1358 (3rd Cir. 1993), cert denied 510 U.S. 817 (1993); Mebane v. U.S. 789 F. Supp. 410, 414-415 (D.D.C. 1992). Further, even where an employee may be engaged in an activity that furthers his own interests as well as that of his employer, the employer may still be liable. Cardozo v. Graham, 848 F. Supp. 5, 8 (D. Mass. 1994); Meyer v. Runyon, 869 F. Supp. 70, 79 (D. Mass. 1994).
Under these rules, how likely are Universities to be found liable for faculty infringements? Employee status often will not be in dispute. The other issues may not be open to argument either. Looking at the above-referenced faculty duties most likely to lead to infringement, many if not all, are clearly within the general scope of faculty authority and aimed at accomplishing the objectives for which faculty are hired. Faculty members certainly have authority to prepare coursepacks and to place materials on reserve. They are authorized, indeed encouraged, to populate their websites with all kinds of online course materials. Publishing scholarly writings is imperative, and posting them to websites or otherwise distributing them electronically is common. Whereas they are not authorized to infringe, per se, this is not the issue. It is only necessary that the wrongful act be similar to what is authorized.
It would appear that our faculty members are almost assuredly our agents: their activities likely to infringe are within the general scope of their employment duties and would usually further our business goals and accomplish their teaching and research objectives.
Where Universities persuasively argue that one or more of the elements that constitute agency is lacking in a particular case such that the direct infringer would not be an employee for purposes of respondeat superior, they might still be held vicariously liable for the actions of such non-employees where they have sufficient right and ability to supervise them and derive direct or indirect financial benefit from the infringer's exploitation of copyrighted materials. Shapiro, Bernstein & Co., Inc. v. H. L. Green Co., Inc., 316 F.2d 304 (2d Cir. 1963); Gershwin Pub. Corp. v. Columbia Artists Mgt., Inc., 312 F. Supp. 581 (S.D.N.Y. 1970), aff'd 443 F.2d 1159 (2d Cir. 1971); Polygram International Publishing, Inc. v. Nevada/TIG, Inc., 855 F. Supp. 1314 (D. Mass. 1994). The rules of vicarious liability thus extend respondeat superior principles to independent contracting.
Green is the landmark case in this area. The Green court reviewed earlier cases along a continuum from those addressing landlord/tenant issues where landlords usually did not have vicarious liability, to those dealing with dance halls, whose proprietors usually were vicariously liable. The Green court concluded that the owner of a department store that leased space to a vendor who sold counterfeit records was more like a dance hall proprietor than a landlord. That approach to the analysis and the Green articulation of the test is still followed today.
The right and ability to supervise is usually found where the supervisor has the ability to terminate the relationship for any reason, or where the direct infringer is obligated to follow rules and regulations. Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996). It is not necessary that actual control is exercised, just that there is a right to control. Thus, the same facts that tend to show how faculty members are subject to controls for agency purposes, especially with respect to the behaviors that are likely to lead to infringement, will support the finding of vicarious liability as well.
The required financial benefit need not be derived from the particular work that infringes. Rather, all that is necessary is that there be benefit from the general type of activity that is found to infringe. House of Representatives Report to the 1976 Copyright Act, p.159-160; Broadcast Music, Inc. v. Blumonday, Inc., 32 U.S.P.Q. 2d 1474 (D. Nev. 1994).
The principle of academic freedom may tend to undercut the assertion that the University has the power to control faculty members. On the other hand, that argument could be countered by showing that giving faculty members the right to determine what they will say does not strip the University of the right to control whether the faculty member infringes another's rights in the process of saying it. Academic freedom is not carte blanche.
Similarly, the existence of an Intellectual Property Policy granting faculty members ownership of copyright in their educational course materials might suggest that the University lacks control over what faculty authors do in the course of creating such materials. This argument is likely to meet the same response: because a University does not exercise every possible control over faculty does not negate the control it does exercise.
How might the existence of specific contracts for the creation of course materials affect the analysis? Contracts with faculty members who are employees are not likely to address the relationship at all, but would focus on copyright, production and liability issues. There could, however, be some question as to whether anything in the contract, or the contract itself, negates employee status with respect to that particular work. Contracts with individuals who are not employees will tend to establish independent contractor status. The necessary elements of control and benefit can be proved from the provisions of the contract or otherwise. Thus, the existence of a contract per se would only affect the analysis if it stated or negated elements of the cause of action.
May a University shift all liability for copyright infringement through contract? For example, could a University contractually require a faculty member to obtain all necessary permissions and even provide funds for the faculty member to use to obtain them, and thereby avoid vicarious liability for the faculty member's infringement in connection with the project that is the subject of the contract? Probably not, because courts are likely to view a University as better able than faculty members to obtain licenses and better able to protect itself through contractual indemnification. This underscores the need to obtain indemnification from faculty members who create and place educational courses online. The general rule that trying but failing to stop an infringement is no defense also militates against shifting responsibility to faculty members. Warner Bros., Inc. v. Lobster Pot, Inc., 582 F. Supp. 478 (N.D. Ohio 1984).
Thus, faculty members who may not be employees under agency principles may still subject Universities to vicarious liability for their infringements where the direct infringer is subject to University rules and regulations governing behavior. Further, Universities are likely to get little relief from arguments that academic freedom, intellectual property policies that grant faculty members ownership of copyright in educational materials or contracts that delegate the responsibility to faculty to obtain copyright clearances outweigh facts showing right and ability to control and direct or indirect financial benefit.
Universities may also be contributorily liable where the facts to support agency or vicarious liability are lacking, but they have knowledge of a direct infringement and either participate in it or supply the means by which it is carried out. ITSI T.V. Productions, Inc. v. California Auth. of Racing Fairs, 785 F. Supp. 854, 861 (E.D. Cal. 1992), aff'd in part, rev'd on other grounds, 3 F.3d 1289 (9th Cir. 1993); Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829, 845-47 (11th Cir. 1990).
Participating in an infringement means inducing, causing or materially contributing to it. For example, selecting the material to be copied, played or distributed (Universal Pictures Co. v. Harold Lloyd Corp., 162 F.2d 354, 365 (9th Cir. 1947)); working closely with the direct infringer to modify a work, in effect, co-authoring it, and agreeing to share royalties from sales of the work (Baron v. Leo Feist, Inc., 173 F.2d 288 (2d Cir. 1949); MCA, Inc. v. Wilson, 425 F. Supp. 443 (S.D.N.Y. 1976), aff'd in part, modified in part, 677 F.2d 180 (1981)); or guiding or supervising the direct infringement (Boz Scaggs Music v. KND Corp., 491 F. Supp. 908 (D. Conn. 1980)) all have been characterized as participating in the infringement.
The participation must be a significant part of the direct infringement. If the act is immaterial or the knowledge element is missing, courts will not find contributory liability. An individual who provided a copy of a journal article to a superior who used pictures from it in an infringing way was not found contributorily liable because she did not take an active part in determining what would be done with the article. Varon v. Santa Fe Reporter, Inc., 218 U.S.P.Q. 716, 718 (D.N.M. 1982).
In close cases, courts are likely to focus on whether the contributory infringer knew or should have known about the infringement. (Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971); Aitken, Hazen, Hoffman, Miller, P.C. v. Empire Const. Co., 542 F. Supp. 252, 261-262 (D. Neb. 1982)). The knowledge requirement means only general knowledge about the direct infringing activities. It does not require that the University have reached a legal conclusion that the activities are infringing. This "strict liability" rule in copyright law dates back to as early as 1869. Lawrence v. Dana, 15 F. Cas. 26, 60 (C.C.D. Mass. 1869). Further, any University employee can have the knowledge. It need not be an official or officer for that person's knowledge to be imputed to the University.
A recent case suggests that a defendant's acting out of an apparent bad-faith intent to circumvent a court order preventing it from distributing infringing materials on its own site, linking to a site that contains the same materials known to be infringing, actively encouraging the public to copy and further distribute the infringing material at least in part to affect ongoing litigation against the owner may constitute contributory infringement. Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., U.S. District Court, Central District of Utah, Case No. 2:99-CV-808C (order for a preliminary injunction ordering the defandant to remove links to materials it knew were infringing).
Where the contribution of materials or equipment is at issue, it is difficult to make out a case against a contributory infringer because of the doctrine of "substantial non-infringing uses." This doctrine is explained in the Sony case. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). It provides that if material or a machine or equipment that enables an infringement has substantial non-infringing uses, providing such a machine to another will not satisfy the test for contributory infringement, even where there is knowledge of the infringing use. In Sony, a video tape recording device was found to have such a substantially non-infringing use, namely, timeshifting (recording broadcast television programs for viewing at a later time), which the court found to be fair use.
Universities could be contributory infringers where students are infringing with the knowledge of a faculty member who is involved in some material way with the infringement, such as requiring classroom activities that are infringing, knowing that such activity is prohibited. In such a case, the faculty member's knowledge can be imputed to the University and it will be found contributorily liable. Even if the faculty member does not know that infringing activity is taking place or whether an activity is infringing, if he reasonably should have known, the University will be contributorily liable. Casella v. Morris, 820 F.2d 362, 365 (11th Cir. 1987). Additionally, where the University has been advised that a student's page contains a link to materials that are infringing, failure to remove such links may result in a finding of contributory liability against the University.
The University of Texas System's (U.T. System) Copyright Policy contains references to other documents that provide more detailed guidance on fair use. The most important of these is Fair Use of Copyrighted Materials. This document contains specific guidelines for a variety of circumstances (coursepacks, distance learning, image archives, multimedia and electronic reserves, among others) and a detailed description of how to use the statutory Four Factor Fair Use Test. Together, these tools help to guide faculty members' choices about using others' copyright works without permission. We also have an online tutorial that faculty members and others soon will be required to review before undertaking online courseware projects. Further, as copyright counsel I conduct seminars, workshops and lectures for University faculty members and others, create and maintain the Copyright Crash Course, a comprehensive online fair use resource, and answer, on average, 50 inquires related to copyright monthly. Nevertheless, if a faculty member fails for whatever reason to follow our Copyright Policy and both the University and the faculty member are sued, the University likely will be liable.
The existence of a policy that specifically prohibits copyright infringement will not prevent a finding of liability under theories of agency or vicarious liability. City of Chicago v. Matchmaker Real Estate Sales Center, Inc., 982 F.2d 1086, 1096 (7th Cir. 1992), cert denied, 508 U.S. 972 (1993); Freiman v. Lazur, 925 F. Supp. 14, 15, 19 (D.D.C. 1996); Shapiro, Bernstein & Co. v. Veltin, 47 F. Supp. 648 (W.D. La. 1942); Warner Bros., Inc. v. Lobster Pot, Inc., 582 F. Supp. 478, 483 (N.D. Ohio 1984); Famous Music Corp. v. Bay State Harness Horse Racing and Breeding Ass'n., Inc., 554 F.2d 1213 (1st Cir. 1977); Buck v. Newsreel, Inc., 25 F. Supp. 787 (D. Mass. 1938). In fact, such a policy tends to show that a University has a right to control the activity in question (infringement in the course of materials preparation).
Since contributory infringement liability requires that the University knowingly participate in or supply the means for accomplishing the infringement, the existence of a policy prohibiting infringement and providing detailed guidance about fair use would tend to show what would be reasonable for administrators and faculty members on our campuses to know about copyright law. This may also affect the availability of defenses, as discussed further below.
For this reason, it is not enough just to just have a Policy; Universities must do more to familiarize faculty members with the Policy and help them to understand and follow it. Unfortunately, trying hard may not reduce our risk of sustaining considerable losses. Only when we eliminate activities that are beyond the scope of fair use or outside the other applicable statutory exemptions will we really reduce our risk of liability.
Faculty members who do not follow their University's Copyright Policy subject themselves and the University to liability. Unfortunately, even those who do follow the Policy might be sued for their actions. This results from the considerable difference of opinion as to the scope of fair use among copyright owners and users. If a University and any of its faculty members were sued for actions that are within the scope of what the University considers fair use, that is, within its Policy, the University and the faculty members quite likely will qualify for the best defense available under law. If it applies, the Good Faith Fair Use Defense (17 U.S.C. § 504(c)) permits a court to refuse to award any damages at all if it so chooses, even if the copying at issue is found not to be a fair use. The requirement to qualify is that the direct infringer must have reasonably believed that the infringing activity was a fair use. Following a Copyright Policy is good insurance both for the University and for faculty.
The U.T. System TeleCampus has utilized contracts to allocate rights and responsibilities among the component institutions and faculty who create online courses for the TeleCampus and the TeleCampus itself. As indicated above, these contracts address a variety of issues. One of the most important is indemnification. The contracts say that U.T. System will indemnify a faculty author if he or she is sued and the actions upon which the suit is based were authorized by our Copyright Policy. Conversely, if an author takes actions that are outside the scope of our Policy, the author must indemnify the TeleCampus for the harm it might suffer as a result. If any claim the TeleCampus might have to Eleventh Amendment immunity were lost through judicial interpretation or by constitutional Congressional legislation (see below), the need for indemnification from faculty members will be critical since a University is likely to sustain significant loses if online course materials infringe regardless of what it does to place responsibility on the faculty member, implement a Copyright Policy or enforce compliance with it.
Today state entities are likely immune from suit for copyright infringement. A patent case decided by the Supreme Court on June 23, 1999, Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 119 S.Ct. 2219 (1999) involving the review of the Patent and Plant Variety Protection Remedy Clarification Act ("Patent Remedy Clarification Act") authorizing suits in federal court against the states for patent infringement, found the Patent Remedy Clarification Act to be unconstitutional. Suits against the states for copyright infringement are similarly authorized by another statute that is at issue in Chavez v. Arte Publico Press, 157 F.3d 282 (5th Cir. 1998) and other cases holding the same (the Copyright Remedy Clarification Act). In February, 2000, the Chavez court determined that the Copyright Remedy Clarification Act is similarly flawed and unconstitutional. Chavez v. Arte Publico Press, --- F.3d --- (5th Cir. 2000).
Even if state institutions are immune from suit for copyright infringement, immunity is not complete. There are other avenues through which an aggrieved copyright owner can seek redress besides seeking money damages in the federal courts. I have written about the implications of Chavez elsewhere and recommend that universities not jump to the erroneous conclusion that they can ignore copyright law.
Congress will try to pass new legislation to subject the states to suits for infringement in federal or state court. In accordance with Florida Prepaid, however, such legislation would have to be an explicit response to actual state activities that violate others' copyrights and would have to be proportional to those violations. Given the very good faith efforts of most state institutions to comply with copyright law today, legislators may not be able to meet this burden.
While, at least for now, state Universities are not likely to be named in copyright infringement suits asking for money damages, it does not mean that they should throw caution to the wind and ignore others' copyrights (or patents and trademarks for that matter). We strongly advise all our U.T. System component institutions and all of our employees and our students to follow our Copyright Policy.
Administrators and faculty members can be sued in their official or individual capacities. Eleventh Amendment and state immunities may protect them from some causes of actions, but not others.
A suit in federal court for copyright infringement against an administrator or faculty member in his or her official capacity is one in which the plaintiff is essentially naming the individual as another way of getting at the resources of the state entity. Edelman v. Jordan, 415 U.S. 651, 666-68 (1974). As such, 11th Amendment immunity would also apply to the individual in his or her official capacity, and absent a valid Congressional abrogation or state waiver of sovereign immunity, the suit would be dismissed. Jackson v. Georgia Dept. of Transp., 16 F.3d 1573 (11th Cir. 1994). Such immunity does not extend to suits for prospective injunctive relief, however. Ex parte Young, 209 U.S. 123 (1908). Thus, plaintiffs may sue University employees in their official capacities for injunctive relief. They are only barred by the 11th Amendment from bringing suits for money damages against the state or its employees in their official capacities, unless Congress has validly abrogated immunity pursuant to the 14th Amendment or the state has unambiguously waived its immunity.
There is nothing, however, that bars a plaintiff from bringing suit against an administrator or faculty member individually. Scheuer v. Rhodes, 416 U.S. 232, 237-38 (1974). In such a case, the plaintiff can ask for money damages and injunctive relief. The courts have found that an individual defendant's payment of money damages in no way implicates the state's interests, even if the state has an indemnification obligation to the individual employee. See, e.g., Jackson v. Georgia Dept. of Transp., 16 F.3d 1573 (11th Cir. 1994) and discussion therein of rule in other circuits, including the 5th Circuit.
Under some circumstances an individual sued in his or her individual capacity may be entitled to qualified or "good faith" immunity. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727 (1982). Usually this defense is invoked to protect officials accused of civil rights violations, but it should apply to violations of copyright law too; however, in a recently reported case in which a faculty member was sued in his individual capacity, the faculty member did not raise qualified immunity as a defense. Rainey v. Wayne State University, 26 F. Supp. 2d 973 (E.D. Mich. 1998). Even if qualified immunity does exist for violations of copyright owners' rights, it is, as its name implies, qualified by the "scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action." West v. Keve, 541 F. Supp. 534, 539 (D. Del. 1982), citing Scheuer. It is not available where the right allegedly infringed was clearly established at the time of the infringement, where the defendant knew or should have known of that right or knew or should have known that his or her conduct violated the statute. West v. Keve, 541 F. Supp. 534, 539 (D. Del. 1982), citing Procunier v. Navarette, 434 U.S. 555 (1978).
"A court evaluating a claim of qualified immunity 'must first determine whether the plaintiff has alleged the deprivation of an actual [statutory] right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.'" Wilson v. Layne, 119 S.Ct. 1692, 1696 (1999), quoting Conn v. Gabbert, 119 S.Ct. 1292 (1999). Whether an official may be held personally liable for an infringement would turn on the 'objective legal reasonableness' of the action, assessed in light of the legal rules that were 'clearly established' at the time it was taken." Wilson at 1699, quoting Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034 (1987). Thus, if a reasonable person in the defendant's position would understand that his or her actions would violate the plaintiff's rights, the defendant will be liable.
Applying this test to a violation of a copyright owner's rights, a court would first determine whether the actions complained of were infringing. Next, the court would analyze whether the rights infringed were clearly established at the time. While a court is likely to find that copyright rights generally are very well established, there may be more room for debate on the issue of whether a reasonable person in the defendant's position would know that his or her actions constituted a violation of those rights because fair use, which is an affirmative defense to a claim of infringement, is quite vague, especially in the electronic environment. In fact, the scope of fair use in any medium is the subject of considerable disagreement. Conflicting court opinions on the very issue raised by the plaintiff's allegations would tend to show that the rights were not clearly established; however, at this time there are few if any court opinions analyzing fair use in the nonprofit educational environment. Further, if an institution has a Copyright Policy that clearly explains fair use and sets out its scope in an understandable way, for example by including guidelines, giving examples or otherwise explicating the law, it might be reasonable to conclude that employees of such an institution should know and understand their responsibility under the law.
Overall, the standard for qualified immunity might seem to be met most easily where an individual has done his or her best to conform behavior to the activities permitted by a Copyright Policy that clearly explains rights and responsibilities under the law. In effect, this is not very different from the parameters of the Good Faith Fair Use Defense.
Where an employee's University either does not have such a Copyright Policy or its Policy is insufficiently clear, it may be possible to argue that failure to comply was due to such lack of clarity. Class v. Norton, 505 F.2d 123, 128 (2d Cir. 1974). In other words, a reasonable person in the defendant's position would not have know what his or her responsibility under the statute was.
With all the attention being paid to copyright law today it may become difficult to argue that a reasonable person would not know what a copyright owner's rights are and that the scope of fair use is limited. In fact, there has been considerable public debate on the issue of fair use with both copyright owners and users becoming clearer and more vocal about their views on its scope. The ultimate question may be simply how far outside the scope of fair use or another statutory exemption an activity falls. Again, this is very much the same argument one might make in asserting the Good Faith Fair Use Defense. If the activity reasonably can be defended as a fair use, qualified immunity or the Good Faith Fair Use Defense should operate to prevent, respectively, suits or awards for money damages. On the other hand, if an activity violates clear Copyright Policy and is not otherwise reasonably defensible as a fair use or within another statutory exemption, qualified immunity and the Good Faith Fair Use Defense both could be unavailing. Unfortunately, in either case, the defendant is likely to undergo an entire trial to explore the issue of whether he or she is entitled to qualified immunity. That in itself is a most torturous punishment.
While Universities are likely to have liability for faculty members' infringing activities under theories of agency, vicarious liability or contributory liability, and neither contracts that seek to shift the responsibility for copyright compliance nor the existence of Copyright Policies that explain the law and prohibit infringement are likely to help them avoid this liability, state Universities are currently quite likely immune from suit in federal court for money damages. On the other hand, they have liability for injunctive relief and in some cases will have indemnification obligations to individual employees who follow institutional Copyright Policies and get sued in their individual capacities. Further, to the extent that copyright owners may have state law claims they can urge against the state, such as contract claims stemming from violations of license agreements, states will have to defend such suits if they have waived sovereign immunity under state law.
Individuals may still be sued in their individual capacities for injunctive relief and money damages. They may, however, be entitled to qualified immunity where their activities are within the bounds of a Copyright Policy or otherwise reasonably defensible as authorized by the copyright law (i.e. a person would reasonably have thought that such acts were not a violation of copyright law). Additionally, administrators who are unaware of the details of infringing activity of a direct infringer may lack the requisite knowledge of the facts and may be able to obtain qualified immunity on that grounds.
On the other hand, faculty members whose conduct violates Copyright Policies and administrators who are conscious of but indifferent to such infringing activity will likely be unable to assert qualified immunity and could be liable for money damages for faculty infringements.
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