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Federal Register / Vol. 86, No. 168 / Thursday, September 2, 2021 / Proposed Rules
on behalf of the library or archives in connection with litigation. The proposed rule incorporates this approach. Further, the Office does not see a reason to restrict the ability of an institution to submit a preemptive optout election for multiple libraries or archives that are the part of the same institution in a blanket fashion, as the use of separate submissions would be inefficient. Any preemptive opt-out election involving multiple libraries or archives, however, should separately identify the individual libraries or archives to be covered by the submission, as opposed to providing a collective description such as all university libraries.
3. Transparency and Functionality Considerations The NOI also asked for input related to transparency and functionality considerations with respect to its publication of the list of libraries and archives that have opted out. 41
Commenters generally agreed that the list of libraries and archives that have preemptively opted out of participating in CCB proceedings should be made publicly available online.42 The Office agrees, and accordingly the list will be maintained on the Boards website.
4. Application of the Opt-Out Provision to Persons in the Course of Their Employment Finally, the NOI asked parties to comment on whether the Office should include a regulatory provision that specifies that this opt out extends to employees operating in the course of their employment. 43 Commenters representing libraries and archives supported such a rule, while others, including AIPLA and the Copyright Alliance et al., were opposed.
Several library representatives, including AALL, LCA, the University of Illinois Library, and the University of Michigan Library, advocated for regulatory language specifying that the preemptive opt-out extends to employees operating in the course of their employment.44 As the University 41 86

FR at 16161.
NOI Initial Comments at 5; Copyright Alliance et al. NOI Initial Comments at 21; LCA
NOI Initial Comments at 2.
43 86 FR at 16161.
44 LCA NOI Reply Comments at 3; Univ.
Information Policy Officers NOI Reply Comments at 1; AALL NOI Initial Comments at 2; Anonymous II
NOI Initial Comments at 1; Anthony Davis Jr. &
Katherine Luce NOI Initial Comments at 2; LCA
NOI Initial Comments at 3; Univ. of Ill. Library NOI
Initial Comments at 2; Univ. of Mich. Library NOI
Initial Comments at 5; see also Science Fiction and Fantasy Writers of Am. NOI Reply Comments at 2
noting no major objection to such a provision, so
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of Illinois Library argued, to provide a blanket opt out provision to libraries yet potentially hold employees liable when working within the scope of their employment would be to eviscerate the opt out provision as the work of libraries is conducted by its employees, not by the entity itself. 45 AALL and the University of Illinois Library also argued that such a rule would be consistent with section 108,46 which extends the statutory exemption for libraries and archives to any of the library or archives employees acting within the scope of their employment. 47
In further support of this approach, LCA argued that Copyright Claims Attorneys, who are required to review new claims to ensure that they comply with the statute and regulations, would be able to determine from the claims statement of material facts whether the respondent is a library employee acting with the scope of her employment. 48 It argued that such a determination would be no less burdensome than to determine whether the respondent is a library that has preemptively opted-out of CCB proceedings, a Federal or State governmental entity, or a person or entity residing outside of the United Statesall of which have to be determined by the CCB before a claimant is allowed to proceed with a claim.49 LCA also contended that an employees failure to opt out inevitably would result in the library becoming enmeshed in the CCB proceeding on behalf of the employee, contrary to Congressional intent. 50
The Copyright Alliance et al. opposed extending the libraries and archives optout provision to employees acting within the scope of their employment, arguing that whether an employee is operating within the course/scope of their employment is a question of fact that would need to be determined by the CCB. 51 In their view, if a claim is brought against an individual, and it is determined that the claim should have been brought against a library or archive that has elected to blanket optout, the claim should be dismissed. 52
long as care is taken to ensure that employees are in fact acting within the proper scope of their employment and within the limits of 17 U.S.C.
108.
45 Univ. of Ill. Library NOI Initial Comments at 2.
46 AALL NOI Initial Comments at 2 citing 17
U.S.C. 108; Univ. of Ill. Library NOI Initial Comments at 2 citing 17 U.S.C. 108a.
47 17 U.S.C. 108a.
48 LCA NOI Reply Comments at 3.
49 Id. citing 17 U.S.C. 1504d34.
50 Id.
51 Copyright Alliance et al. NOI Initial Comments at 21.
52 Id.

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AIPLA added that deciding whether to extend a blanket opt out to employees would require the CCB to determine ex parte whether employees were operating in the course of their employment, which would undermine the adversarial process and increase the burden on the CCB. 53
Both AIPLA and the Copyright Alliance et al. noted that individuals who are potentially acting within the scope of their employment have the option to opt out of any CCB proceeding themselves.54 AMI similarly stated that it did not support regulations that would shield a library or archive employee from liability for actions taken in the course of employment, but not authorized or otherwise sanctioned by the employer who opted out of the CCB
process. 55
The Office appreciates libraries and archives concerns that excluding individual employees from the blanket opt-out could hamper the effectiveness of that option by allowing parties to assert claims against such individuals when claims against the institution are unavailable. Such a rule, however, seemingly appears inconsistent with principles of agency law and would require a broad interpretation of the statutory text. While it is generally true that an employer may be liable for the actions of employees taken within the scope of their employment,56 the Office does not understand that principle to mean that suits against the employee individually are precluded in such circumstances. Rather, as a general rule, unless an applicable statute provides otherwise, an actor remains subject to liability although the actor acts as an agent or an employee, with actual or apparent authority, or within the scope of employment. 57 Moreover, the CASE
Act expressly offers the preemptive optout option to a library or archives, but does not mention employees.58 The 53 AIPLA

NOI Initial Comments at 5.
at 5; Copyright Alliance et al. NOI Reply Comments at 14.
55 AMI NOI Initial Comments at 2.
56 See, e.g., Alan Latman & William S. Tager, Study No. 25: Liability of Innocent Infringers of Copyrights 145 1958 The normal agency rule that an employer is liable for the employees wrongful acts committed within the scope of employment has been considered applicable to copyright infringement., reprinted in Subcomm.
on Patents, Trademarks, and Copyrights, S. Comm.
on the Judiciary, 86th Cong., Copyright Law Revision: Studies 2225 135 Comm. Print 1960;
see also, e.g., Lowrys Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 737, 746 D. Md. 2003
holding that employer was potentially liable for the infringing conduct of its employee-agent.
57 Restatement Third of Agency sec. 7.01 Am.
Law. Inst. 2006.
58 17 U.S.C. 1506aa1.
54 Id.

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