The Freedom of Information Act (“FOIA”) is a federal statute that allows members of the public to request non-public documents from the federal government. Documents authored by the federal government are considered part of the public domain when it comes to copyright law, and FOIA is similarly premised on the idea that people have a right to know what their government is up to. In last week’s post, we introduced FOIA and explained how authors can benefit from this law. In today’s follow-up post, we will discuss FOIA litigation involving authors in order to offer takeaways for authors interested in using FOIA in the course of their research and writing.

When the government fails to meet its obligations under FOIA, requesters—including authors—can sue the government agency to which they made the request in order to enforce the statute. FOIA litigation, like all lawsuits, can be expensive and time consuming—several of the cases discussed in this post dragged on for years. Consequently, many individual requesters, including authors, lack the resources to pursue FOIA litigation. For this reason, the FOIA request and appeal processes explained in last week’s post are particularly valuable tools for authors gathering information for their upcoming projects. But FOIA litigation provides guidance for the government on the rules and procedures of FOIA, and author-requesters too can take lessons from these decisions to better inform their FOIA requests and expectations going forward. 

FOIA Formalities: McDonnell v. United States

In 1985, author Robert McDonnell sent a FOIA request to the FBI regarding a fire that broke out on the Morro Castle Luxury Liner in 1934, about which he and his co-author Frederick Rasmussen hoped to write a book. Strange circumstances surrounded the fire, which claimed more than 130 lives and may have been set by the ship’s radio operator. The FBI conducted an investigation, but many details about it were unknown. The FBI released approximately half of the more than 1,000 pages of responsive records in response to McDonnell’s request, which revealed some new information about the incident, but it withheld many other responsive documents. For three years, the authors negotiated with the agency, sent new requests, and obtained some, but not all, additional responsive documents. Then, in 1998, McDonnell and Rasmussen sued the government in an effort to obtain the withheld pages. 

In the lawsuit, a magistrate judge held—and an appeals court subsequently affirmed—that two separate failures to meet FOIA’s formalities and procedural requirements meant that not all aspects of the requests could be litigated. First, the appeals court held that Rasmussen was not a proper party in the case, because his name was not present on any of the requests. FOIA mandates that only the individual(s) making the requests can file a lawsuit to enforce FOIA. While the court acknowledged that McDonnell and Rasmussen were co-authors, it found that this did not excuse Rasmussen’s failure to comply with the requirement. Second, the court found that, with regards to one of the later requests, McDonnell failed to “exhaust his administrative remedies,” by failing to appeal the FBI’s denial of the request before filing a lawsuit. FOIA requires requesters to file an appeal following a rejection before filing suit, and McDonnell’s failure to do so in this case effectively made the relevant request not reviewable by a court. This oversight further demonstrates that the FOIA formalities must be complied with strictly, and moreover shows the potential unfortunate consequences of failing to do so.

Disclosures Behind the Scenes: Stein v. United States Department of Justice

In 2012, Alan Stein, an author and activist from Alaska, sent several FOIA requests to the Department of Commerce. Stein’s request concerned an investigation of a legislative aide who admitted to falsifying fishing records in his previous position as a fishing vessel operator and was subsequently incarcerated after resigning from his legislative aide position. The Department of Commerce failed to provide a “final determination” within 20 business days as required by FOIA, and indeed did not do so for years in some cases. After Stein’s attorney filed a complaint in 2015, the Department of Commerce quickly began “working in good faith” with Stein to release “thousands of pages of documents.” Stein was satisfied with the result but lamented that he had to spent four years waiting for documents that were apparently not exempt under FOIA. 

Stein’s case demonstrates that, in some cases, filing a complaint can spur an agency to produce records it has failed to produce in response to requests and appeals. Filing a complaint can lead an agency to begin working with a requester “behind the scenes” where it otherwise may not have done so. While this made things easier for Stein, who did not have to wait for the outcome of court proceedings to get the records he needed, it also demonstrates the unequal footing this practice can place requesters in. Authors who lack the resources to obtain legal counsel to actually file the lawsuit may be left with little or no recourse when an agency refuses to comply with its FOIA obligations. While Stein’s quick behind the scenes resolution meant his legal fees were not as high as he might have anticipated, there was no guarantee of a speedy outcome. 

Commerciality and Authorship: Campbell v. United States Department of Justice

In 1988, author James Campbell was working on a biography of renowned author and civil rights leader, James Baldwin. As part of Campbell’s research, he sent a FOIA request to the FBI for any information it held on Baldwin. A year later, Campbell filed suit in an effort to expedite the request, which FOIA allows for when there is an urgency to inform the public about government activity, among other limited circumstances. While a court declined to order the FBI to expedite the request, the FBI did eventually turn over more than 1,000 pages on Baldwin to Campbell. In 1991, Campbell published his biography, which was well-received (a second edition was published in 2021), and was based in part off the FBI records he had finally obtained.

Yet the litigation would continue for another decade, as Campbell tried to obtain more records on Baldwin and sought to recover some of the copying fees the FBI had charged him during the course of their response to the request. While agencies are permitted to charge requesters fees for copying and time incurred searching for the responsive records, a “fee waiver” provision exists in the statute which seeks to ease this burden for certain requesters. When considering a fee waiver request, which Campbell had made, agencies are asked to consider whether disclosure is in the public interest and would contribute to an understanding of government activity, or whether the request was primarily in the requester’s “commercial interest.” The FBI argued that Campbell certainly stood to benefit commercially from the request, holding up his commercially-available published book as evidence. The court found that this position was inconsistent with the spirit of the fee waiver provision, which is intended to help scholars whose research contributes to the public’s understanding of government activity. It added that it would make little sense to require these scholars to forego compensation for their work in order to take advantage of the fee waiver provision, and that the “quasi-commercial nature” of Campbell’s endeavor should not weigh against his ability to obtain a fee waiver. 

This case demonstrates the strong protections for works of authorship about matters of public concern, a principle underlying many judicial doctrines. While such protection is far from absolute, it supports liberal applications of the fee waiver provision, underscoring the importance of writing about matters of public concern for the courts and federal agencies.

The Freedom of Information Act (“FOIA”) is a federal statute that allows members of the public to request non-public documents from the federal government. Documents authored by the federal government are considered part of the public domain when it comes to copyright law, and FOIA is similarly premised on the idea that people have a right to know what their government is up to. FOIA requests are a key part of the investigative process for many journalists, but FOIA can be an incredibly useful research tool for many types of authors, as it enables access to new, primary sources of information about federal government activity. 

In today’s blog post, we will introduce FOIA and explain how authors can benefit from this law. Next week, we will discuss FOIA litigation involving authors in order to offer takeaways for authors interested in using FOIA in the course of their research and writing.

What is FOIA?

The Freedom of Information Act was enacted into law in 1967. Under the Act, anyone can request documents produced and/or held by a federal government agency—such as the IRS, State Department, NASA, or ICE—which is obligated to turn over any documents it possesses that fall within the scope of the request. FOIA has enabled requesters to obtain investigative files compiled by the FBI, e-mails between certain government officials, and data collected by federal agencies, for example.

However, an agency may withhold or redact documents if they fall into one of nine delineated “exemptions” to FOIA. Broadly speaking, the exemptions protect national security interests, the integrity of ongoing law enforcement investigations, inter-agency deliberations, confidential commercial information supplied to the government by private entities, the privacy of individuals and law enforcement officials, and information that is exempt from disclosure under another federal statute. FOIA only applies to the executive branch of the federal government, meaning that it does not apply to the courts or Congress, nor does it apply to state governments. However, every state has its own public records law which allows requesters to obtain state government records under similar procedures. The procedure for filing a FOIA request varies by federal agency, but most can now be submitted online, via an online form on an agency’s website or via email. If you are interested in filing a FOIA request with a federal government agency, the federal FOIA website can direct you towards the right web form or point of contact.

Once a request has been made, the relevant government agency is required to issue a response within 20 business days, otherwise the request can be considered to be “constructively denied,” that is, denied based on the agency’s lack of response. The agency’s response, if one is provided, can grant the request in full, grant it in part and deny it in part, or deny the request in full. Then, the requester has an opportunity to appeal the agency’s response by sending another communication explaining why the request should not have been denied, in what is known as an administrative appeal. If the requester is not satisfied with the agency’s response to the appeal, they may file a lawsuit against the government agency to which the request was sent to enforce FOIA and try to compel the agency to produce the requested documents.

FOIA for Authors

Under FOIA, any person or entity (like a university or commercial business) can make a request, regardless of citizenship or the motivation for sending the request. Yet the FOIA statute does contain some protections for certain types of requesters, including journalists and authors.

First, FOIA provides for “expedited processing,” whereby an agency must respond in 10 business days, rather than 20, in some circumstances. One such circumstance of relevance to authors is when the requester is a “person primarily engaged in disseminating information” and there is an “urgency to inform the public concerning actual or alleged Federal Government activity.” This provision has typically been applied to journalists, but authors have requested expedited processing under the provision as well.

Second, FOIA allows for a “fee waiver” that excuses certain requesters from having to pay fees for copying and staff time employed performing a search for the records requested (though requesters may have to pay for copying costs incurred in excess of $100). Members of the news media are entitled to a fee waiver under the statute, as are “educational [and] noncommercial scientific institutions, whose purpose is scholarly or scientific research.” Authors affiliated with academic institutions are often granted such a fee waiver. To receive a fee waiver, an author must actually request one in their request, so it can be a good idea to ask for one if you think you might fall into either category. As a practical matter, it never hurts to ask!

One potential downside of FOIA as a research tool for authors is that the timing of an agency’s response can be somewhat unpredictable. While FOIA mandates that an agency must issue a final response within 20 business days, in practice, FOIA requests often languish for much longer than this, and in some cases, patience will eventually yield results. Yet writing projects often have their own timelines and deadlines, making it difficult to plan around the outcome of FOIA requests.

On the other hand, advancements in technology have in many ways made FOIA more accessible to authors and other requesters of government documents. In 1996, the Electronic Freedom of Information Act Amendments of 1996 were enacted into law. These amendments require agencies to make their “reading room” records available online, and encourage agencies to send records electronically wherever possible, among other electronic record-friendly provisions. Today, most responsive records are sent to requesters electronically, though there are exceptions. The E-FOIA amendments encourage agencies to send records in a more accessible, digital format. They have also had the effect of decreasing the delays and costs associated with copying and mailing physical documents, making FOIA more usable to authors and the general public.

Last week, the Copyright Office released a report on Copyright and State Sovereign Immunity, concluding its year-long study on the topic. Sovereign immunity is a doctrine that makes states and state entities immune from lawsuits under federal law in some cases. Congress sought to eliminate sovereign immunity in the copyright context in a 1990 federal law, which was overturned by a 2019 Supreme Court decision. In response, Senators Leahy and Tillis asked the Copyright Office to conduct a study to determine whether copyright infringement by state entities is an ongoing problem warranting a new legislative remedy. The report is a culmination of that effort.

Background

State sovereign immunity immunizes states and state entities—like state government agencies, public hospitals, and state universities—from lawsuits under federal law without their consent, with roots in the Eleventh Amendment to the U.S. Constitution. But state sovereign immunity is not absolute, and can be modified or eliminated in some contexts. In 1990, Congress passed the Copyright Remedy Clarification Act (“CRCA”), which sought to eliminate state sovereign immunity with regards to copyright claims, known as abrogation, under the authority of the Intellectual Property Clause of the Constitution.

The validity of the CRCA was recently examined by the Supreme Court in Allen v. Cooper. The case concerned the state of North Carolina’s use of copyrighted images of a pirate ship found off the coast without permission from the photographer rights holder. The Court held that Congress lacked the authority to abrogate sovereign immunity under the Intellectual Property Clause, making the attempt to do so in the CRCA invalid. The Court also noted that Congress could have abrogated state sovereign immunity with regard to copyright claims under its 14th Amendment powers, but that the way it did so with the passage of the CRCA did not meet the requirements of its 14th Amendment powers. Under the 14th Amendment, Congress must enact legislative solutions that are “congruent and proportional” to the problems it seeks to address. The Court held that the record before Congress did not show the widespread, intentional infringement which would justify the total abrogation of sovereign immunity for copyright claims in the CRCA.

In response to the decision in Allen v. Cooper, Senators Leahy and Tillis asked the Copyright Office to investigate the topic of sovereign immunity for Copyright. In June 2020, the Copyright Office issued a notice of inquiry announcing a study to “evaluate the degree to which copyright owners are experiencing infringement by state entities” and the extent to which these infringements are “based on intentional or reckless conduct.” The Copyright Office also asked whether other remedies available to rights holders under state law were adequate to address the problem of infringement by state entities.

The Report

The Copyright Office’s new report is based on public comments, public roundtables, and its own legal research conducted during the course of its year-long study. In addition to reviewing the history of the study and relevant legal background, the report summarizes allegations of state infringement submitted in connection with the study, describes documentation provided by representatives of state entities regarding their policies for preventing and responding to allegations of infringement, and examines the extent to which copyright owners have other legal remedies against state entities if those state entities are immune to an infringement lawsuit. Finally, the Office sets out its recommendations for Congress in light of this study.

With respect to allegations of state infringement, the report reviews a total of 132 cases submitted by commenters which involve copyright infringement disputes brought against state entities, of which about 59% involve specific allegations of intentional infringement. The Office also summarized survey results from a survey distributed by Copyright Alliance, in which 115 of 657 respondents self-reported experiencing infringement by a state or state entity. The Office also summarized critiques of the survey, including its reliance on respondents’ subjective beliefs that infringement had occurred and the fact that it did not account for exceptions or defenses other than sovereign immunity that may have precluded liability. Indeed, a review of the raw survey data submitted by Copyright Alliance after the public roundtable reveals some misunderstandings about the scope of copyright and misplaced responses relating to previous court decisions in Authors Guild v. Google and Authors Guild v. HathiTrust, highlighting the unreliability of these self-reported allegations. Finally, the Office’s report discusses additional comments describing instances of alleged infringement by state entities relating to news content, music, computer programs, photographs and video, and books.

The report then turns to a discussion of state policies for preventing and responding to allegations of infringement, acknowledging that the record developed for the study indicates that many state universities and libraries have developed policies regarding the proper use of copyrighted material (though very little evidence was submitted regarding the policies of other state entities). First, commenters pointed to the Higher Education Opportunity Act (“HEOA”), which requires institutions receiving federal funding take certain measures to discourage copyright infringement. Commenters also highlighted institutional policies designed to prevent or respond to allegations of copyright infringement, educational efforts aimed at faculty, students, and other employees about copyright infringement, and cultural norms and expectations that reduce the likelihood of widespread intentional infringement by state educational institutions.

Copyright Office’s Recommendations

The Office concludes that, although the Office’s study surfaced a number of allegations of state infringement, it is far from certain that the record would be found sufficient to meet the constitutional test for abrogation. The Office acknowledges that few of the allegations that were surfaced in the study have been adjudicated on their merits. The Office further states that case law indicates that violations by states must be sufficiently numerous and serious to constitute a pattern of unconstitutional conduct, and that there is a material risk that a court could find even the “more robust record” of alleged infringement surfaced by this study insufficient to meet constitutional abrogation standards. That said, the Office indicated that, if Congress decides not to proceed with new abrogation legislation, the Office supports considerations of alternative approaches to abrogation to ensure that copyright owners have adequate relief if their copyrights are infringed by state entities.

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Authors Alliance will monitor any Congressional action regarding the abrogation of sovereign immunity in the copyright context, or alternative approaches to potential infringement by state entities, and we will continue to update members and readers as new developments emerge.

Authors Alliance, joined by the Library Copyright Alliance and the American Association of University Professors, is petitioning the Copyright Office for a new three-year exemption to the Digital Millennium Copyright Act (“DMCA”) as part of the Copyright Office’s eighth triennial rulemaking process. If granted, our proposed exemption would allow researchers to bypass technical protection measures (“TPMs”) in order to conduct text and data mining (“TDM”) research on literary works that are distributed electronically and motion pictures. Recently, we met with representatives from the U.S. Copyright Office to discuss the proposed exemption, focusing on the circumstances in which access to corpus content is necessary for verifying algorithmic findings and ways to address security concerns without undermining the goal of the exemption.

Access to Corpora for Verification

In response to suggestions from opponents that the exemption, if granted, should ban researchers from accessing text in their corpora, David Bamman, associate professor at the School of Information at UC Berkeley, shared circumstances in which a researcher would need to access text in a corpus to verify research findings. Drawing from his co-authored article The Transformation of Gender in English-Language Fiction, Dr. Bamman used two examples to demonstrate why access to the research corpus is necessary to verify anomalous research findings. First, Dr. Bamman executed code that produced all lines of text in Nathaniel Hawthorne’s The Scarlet Letter that include both female gendered pronouns and capitalized words to investigate an algorithm’s failure to identify any female characters in the novel. Second, Dr. Bamman executed code that produced all lines of text that included the word “legs” to investigate why this was one of the objects most associated with male characters in the research corpus.

As we have previously explained, while researchers do not need this exemption for the purpose of viewing the full text or images of the works that they or their institutions have already obtained lawfully, researchers must be able to verify their research methods and research results. The scale of many research projects would make verification of anomalous research findings without access to the research corpus prohibitively time-consuming. An outright ban on accessing text in the corpus would make many TDM projects impossible because researchers would not be able to interrogate the conclusions reached by the code they had developed. Moreover, the ability to view corpus text or images is consistent with the research environments of both HathiTrust Data Capsules and Google Book Search, and it is consistent with fair use precedent.

Security Measures

As a threshold matter, we shared our view that the approach of existing § 1201 exemptions that require reasonable security measures keyed to particular, identified risks is consistent with the decisions in Google Books and HathiTrust. In both cases, the Second Circuit identified security measures that were reasonable responses to actual risks. This is consistent with past Copyright Office recommendations that identify the risk to be guarded against, but do not prescribe the security controls to guard against it. To this aim, we suggested language to add to the exemption to more specifically define the harms that exemption users must guard against when implementing security controls—dissemination, downloading, and unauthorized access. We also explained that we not object to the inclusion of the requirement that researchers wishing to avail themselves of the exemption consult with their institution’s information technology office. Institutions of higher education are well positioned to provide this kind of advice, and it would ameliorate some of opponents’ concerns.

In addition, we discussed the various specific security controls and standards opponents advocated for in their post-hearing letters. We explained that while we continue to believe that the Copyright Office’s reasonableness approach is the right one, the intended exemption beneficiaries would still be able to avail themselves of the exemption if certain controls are imposed. These include encryption on the server, limiting access to the collection to those with a legitimate and authorized need, deletion of the collection upon conclusion of the applicable research need, and mechanisms to detect and prevent downloading of stored materials. Other security controls proposed by opponents, however, would render the exemption unusable, and we explained our concerns with these proposals to the Office.

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We look forward to working with the Copyright Office to address opponents’ concerns without undermining the purpose of the proposed exemption. The Librarian of Congress is expected to issue a final decision on the proposed exemption in October 2021. We will keep our members and readers apprised of any updates on our proposed exemption as the process moves forward. We’re grateful to law students and faculty from the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law School for their work supporting our petition for this new exemption.

This morning, the Supreme Court of Canada issued a unanimous opinion in Access Copyright v. York University, finding that approved tariffs for works in a collective copyright society’s collection were not enforceable against a user that chose not to be bound, and suggesting that the lower courts had applied an unduly narrow interpretation of fair dealing. Authors Alliance applauds this decision, the last to be authored by renowned Justice Rosalie Abella before her retirement from the bench.

The case involved a claim by Access Copyright, a Canadian copyright collective, which sought to have York University comply with an interim tariff approved by the Copyright Board of Canada for works in Access Copyright’s collection. In response, York University brought a counterclaim seeking a declaration that its guidelines for copying materials for education purposes constituted “fair dealing” under the Copyright Act of Canada. The case raised the question of whether copyright collectives can force users to license content from them, even if the users prefer to comply with their copyright obligations in other ways.

Authors Alliance, together with Professor Ariel Katz, intervened in the case, submitting a factum to the Court and participating in oral arguments. On the issue of whether the approved tariffs are mandatory vis-à-vis users, we supported the Federal Court of Appeal’s finding that the approved tariffs bind copyright collectives but cannot be imposed on users as mandatory tariffs. On the issue of fair dealing, we argued that in the absence of specific allegations of copyright infringement from copyright owners, the lower courts should not have dealt with the issues of infringement and fair dealing. In addition, we urged the court to consider that Access Copyright does not represent the interests of all authors, and especially not the authors whose primary concern is their works having the greatest possible reach and impact.

In the decision, Justice Abella dismissed both York University’s and Access Copyright’s appeals. On the issue of mandatory tariffs, she found that the interim tariff set by Access Copyright was not enforceable upon users who chose not to be bound, as Authors Alliance argued in our factum. Justice Abella further stated that Access Copyright was not given authority by Parliament to make such licensing schemes mandatory on all users of the works in its collection. Emphasizing that the statutory scheme allowing collective administration of tariffs is intended to protect users from “unfair exertion of [] societies’ market power,” Justice Abella pointed out that allowing a society to “foist a license on an unwilling user” was inconsistent with “the protective purpose of the regime.” She emphasized the right of users to access texts in other ways than by obtaining a license from Access Copyright—which, as Authors Alliance pointed out in our factum, is a non-exclusive licensing agent that does not have a monopoly on the use of the works in its collection—and paying the interim tariffs.

The Court did not make a ruling on the issue of fair dealing because, in light of the finding that the tariff was not mandatory against York University, it found there was no live dispute between the parties and that it therefore need not reach the issue of fair dealing. Authors Alliance had urged such an approach in our factum, pointing out that without specific allegations of infringement from copyright owners, the lower courts should not have dealt with infringement and fair dealing.

Nonetheless, Justice Abella stated forcefully that the Supreme Court did not endorse the narrow vision of fair dealing set forth by the Federal Court and Federal Court of Appeal. This is because the lower courts inappropriately “approached the analysis from an institutional perspective only, leaving out the perspective of students that used these materials.” Under a view of fair dealing that did consider the students as the users of these materials, the educational purpose of the copying would weigh in favor of a finding of fair dealing. Instead, the fair dealing question before the lower courts should have been whether the copying “actualizes the students’ right to receive course materials for educational purposes in a fair manner.” Authors Alliance applauds the renewed focus on the educational purposes of the copying in this case and Justice Abella’s emphasis on these purposes as supporting a finding of fair dealing.

Authors Alliance is pleased with the Court’s ruling, which adopted many of the principles set forth in our factum. We pointed out that authors are not a monolith, and Access Copyright did not represent the interests of all authors. By emphasizing that Access Copyright had no standing to sue for copyright infringement, as it was not a copyright holder, the court signaled that the mandatory tariffs were not aligned with the interests of all authors. Indeed, many authors have as their highest goal seeing their works reach broad audiences and contribute to the progress of knowledge, such as being used in higher education, as the works in the case were. The robust interpretation of fair dealing offered in the decision was consistent with the thrust of our factum—that Authors Alliance’s members interests are best served by a robust application of fair dealing that does not interfere with these dissemination goals.

Authors Alliance is grateful to Lenczner Slaght attorneys Sana Halwani, Paul-Erik Veel, and Jacqueline Chan, as well as law clerk Anna Hucman, for pro bono assistance with this intervention.