Copyright Suit Against University By Author Of 25 Page Survey

November 16, 2011

Case: CAMPINHA-BACOTE v. BLEIDT (S.D.Tex. 10-3-2011) What allegedly happened: A he-said / she-said case. A university professor (who has since resigned) claimed that he was authorized to use a 25 page survey, owned by the plaintiff in this case, on classes of incoming students for a certain period of time. On the other hand, plaintiff claimed that there was no authorization for the use of the survey by the "main defendant professor" and one of his co-workers. Most of the claims originally present in this case were dropped on sovereign immunity grounds because defendant are a state university, specifically Texas A&M's pharmacy college and a couple of its professors.* The defendants have also raised the defense of fair use of the survey (as will be discussed below), but the court's October 3rd opinion only deals with the issue of whether plaintiff authorized the defendants' use. Decision: The issue of whether there really was authorization to use the survey must be decided through a trial. Strategy Question: The short opinion mentions a license offer made by the copyright owner to one of the defendant professors:

[The author of the survey] responded that the cost would be $735 for 2010, and asked for documentation of the prior agreement with [the university professor]. The pharmacy school decided against using the survey during August 2010 orientation at least in part because it was too expensive.

The relevance of this $735 offer is not immediately clear, especially because the court was deciding a summary judgment motion on liability, and not deciding any damages issues.  The $735 figure was made by the copyright owner in the context of licensing and authorizing future use and did not directly relate to the unauthorized use at issue in this case, which had occurred prior to the $735 offer.** It may be that the court believed that the university, or the involved professors, could have settled this matter early by paying about $735 per semester of allegedly unauthorized use, but, if so, that may or may not be a realistic assumption. Fair Use: In disputes over copyrighted materials that are used for educational purposes, fair use is frequently raised as a defense.  Indeed, fair use has been raised, but not yet litigated, in this case. Some of the plaintiff's recent briefing shows that she continues to be concerned about this defense:

In an email dated as recent as September 16, 2010, [the main defendant professor] communicated with [a dean of the university], whereby he made mention of and implications that his use . . . of Dr. Campinha-Bacote’s survey was protected by fair use. . . . The second factual issue is that the College's fair use of a copyrighted survey instrument should not be much of an issue. There was no data collected for analysis purposes or for use in research; any use was for a nonprofit-educational purpose only. Apart from the fact that [the main defendant professor] actually uses the term “fair use,” he also identifies what he thinks the relevant fair use factors are by mentioning “nonprofit” and “educational purposes.” By this statement, it is clear that [the main defendant professor] has knowledge of the fair use doctrine. Consequently, it can be reasonably inferred that [the main defendant professor] is under the impression that his use, both in the past and in the future, would be protected by the “fair use” doctrine. Accordingly, Defendants are more likely to continue using Plaintiff’s tool if they are under the impression that such use is protected. Without an Order from this court granting Plaintiff her injunctive relief, Defendants will be free to use Dr. Campinha-Bacote’s surveys without paying a fee.

Footnote(s): *  More specifically, the claims against the university, and against the professors "in their official capacities" were dropped, leaving only claims against two of the professors in their non-official capacities.  The opinion does not specify as to whether the university has a continuing duty to defend the professors against the remaining claims that were not found to be amenable to summary judgment. **  It is not clear whether the copyright owner even knew about the allegedly unauthorized use at the time she made the $735 license offer.