Specifications

Legal Opinion M 02-22 21 August 2, 2002
Litigation
Should litigation occur, a copyright owner may file suit for an injunction to prevent college staff
from infringing his or her copyright. States have claimed sovereign immunity under the 11th
Amendment to the United States Constitution as a defense against liability in copyright
infringement cases. The 9th U.S. Circuit Court of Appeals has held that California community
colleges can also claim sovereign immunity under the 11th Amendment, although it is important
to note that these were not copyright cases. (Cerrato v. San Francisco Community College
District (9th Cir. 1994) 26 F.3d 968; see also Mitchell v. Los Angeles Community College
District (9th Cir. 1988) 861 F.2d 198, cert. den. 490 U.S. 1081 (May 22, 1989).) Therefore, it is
likely that states (and thus the California community colleges) are currently immune from
liability for copyright infringement depending, of course, upon the facts of a particular case (see,
for example, Genentech, Inc. v. Regents of the University of California (Fed. Cir. 1998) 143 F.3d
1446 [state waived immunity in declaratory injunction action threatening to sue Genentech for
patent infringement]). It is also important to note that at the federal level, Congress is presently
considering legislation that would remove the protection of 11th Amendment immunity and
allow copyright owners to sue states (and thus California community colleges) for copyright
infringement. (S. 2031 (Leahy), S.1611 (Leahy), and H.R. 3204 (Coble).)
Summary
Whenever possible, colleges should obtain a captioned version of the desired video from the
publisher or copyright holder. If this option is not available, a college may choose to obtain
written permission to caption the video from the publisher or copyright owner through a written
agreement. With regard to materials purchased, leased or developed by the college before June
21, 2001, or those materials not covered by section 508, another option may be to exchange or
borrow a closed-captioned audiovisual work through an established "loan" program, if exercising
this option will not negatively impact access. It might also be beneficial to make an inquiry to
the publisher or copyright owner concerning the availability of a transcript in e-text format, or
request permission to share a locally produced transcript with other California community
colleges. It is permissible to exchange a "caption master" of the desired video with the copyright
owner in exchange for permission to caption, so long as a proper legal contract is executed.
We strongly encourage a college to consult with its legal counsel in making any of the foregoing
decisions and drafting any of the required legal documents, and especially before commencing to
caption video without the publisher or copyright holder's permission.
A good resource for basic copyright information is the U.S. Copyright Office's website, at
http://lcweb.loc.gov/copyright/
Contacts
General questions regarding the laws cited above may be directed to General Counsel, Ralph
Black, at [phone].
Questions regarding the role of DSPS in captioning should be directed to Peggy Tate, DSPS
Specialist, at [phone].
Questions related to library involvement in captioning should be directed to Carolyn Norman,
Library and Learning Resource Programs Specialist, at [phone].
M 02-22