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Infringement - Who is Responsible?

Who is responsible if the faculty member's course materials infringe on someone's rights?

University employees, including faculty members, can be held personally liable for their infringing acts. In all likelihood, a copyright owner would sue the University too, but that will not necessarily insulate the faculty member from the cost of defending a lawsuit or from personal liability if they are found to have infringed.

The penalties for infringement are very harsh: the court can award up to $150,000 for each separate act of willful infringement. Willful infringement means that the faculty member knew they were infringing and did it anyway. Ignorance of the law is no excuse. If the faculty member doesn't know they were infringing, they still will be liable for damages - only the amount of the award will be affected. Then there are attorney's fees.

There is one special provision of the law that allows a court to refuse to award any damages at all if it so chooses, even if the copying at issue was not fair use. It is called the good faith fair use defense [17 USC 504(c)(2)]. It only applies if the person who copied material reasonably believed that what they did was fair use, as would likely be the case if they followed Butler's Copyright Policy in the Employee Handbook, Section 3, E., p. 85. If the faculty member disregards sound advice about fair use, a court would be free to award the highest level of damages available. This would make the faculty member an attractive target. If the faculty member qualifies for the good faith fair use defense, they will be a very poor prospect for a lawsuit. Utilize the Fair Use Evaluator to make sure your use of the work falls under Fair Use. It also will give you a PDF of the analysis for your records and evidence of your good faith.

Finally, state universities and colleges may claim sovereign immunity to shield them from suits for money damages. Individuals sued in their capacity cannot claim sovereign immunity, but may qualify for a more limited immunity, but only where their activities are within the bounds of a copyright policy or otherwise defensible as fair use. Where a faculty member's conduct violates a copyright policy, qualified immunity may not be available, and the individual would be liable for money damages. 

"Copyright Crash Course" by Colleen LyonUniversity of Texas at Austin is licensed under CC BY 4.0