CUA- Counsel Online

Catholic University has seen its share of lawsuits over the years, and several of them have been “landmark cases” in one form or another. But as part of its mission, the Office of General Counsel (OGC) has also been active in supporting cases and causes that have important implications for CUA, even though the particular legal matter doesn’t directly involve Catholic University. Such activism has been reflected in work of OGC attorneys ranging from filing amicus briefs in high-profile campus cases to testimony before District of Columbia regulatory agencies to publishing leading articles on campus legal issues.

The recent decisions involving the University of Michigan, Grutter v. Bollinger and Gratz v. Bollinger, are an example of CUA filing a brief as amicus curiae (“friend of the Court”). CUA joined other private universities including American, Carnegie Mellon, Johns Hopkins, NYU, Northwestern, Syracuse, George Washington and the University of Rochester in filing a brief on behalf of the University of Michigan. When the Supreme Court found in favor of protecting the consideration of race in higher education admissions, legal experts noted that the Court’s majority opinion was influenced by the amicus briefs presenting arguments supporting the need for racial diversity on American campuses. More on these cases is found elsewhere in this CounselOnline at http://counselonline.cua.edu/topics.cfm.

CUA’s Office of General Counsel is active as an advocate for causes of interest to CUA outside of the courthouse, too. As part of leading CARE (the Campus Alcohol Reduction Effort) for the District of Columbia’s seven residential colleges and universities, Associate General Counsel, Kathryn C. Bender, has been a vigorous proponent of strengthened laws and regulations in the District of Columbia regarding alcohol sales and service. Ms. Bender assisted the D.C. Corporation Counsel in prosecuting the most successful case in recent memory against illegal bar operations and has testified before the Alcoholic Beverage Control Board supporting increased resources for enforcement of D.C.’s ABC regulations. Student Life professional staff at CUA have been active partners with Ms. Bender in advocating for a reduction of student alcohol abuse.

CUA over the past several years, has played an important role in several other areas of federal regulation of higher education. Assistant General Counsel Margaret L. O’Donnell is recognized for her work on electronic signatures and the changes necessary to student records laws in order to accommodate the realities of computerized student records, including work as a consultant to the U. S. Department of Education’s Family Policy Compliance Office. Earlier this year, Ms. O’Donnell published an article about student records and privacy in the Journal of College and University Law, the premier scholarly publication in higher ed law. In the past year, OGC attorneys have also worked with the National Association of Independent Colleges and Universities regarding the regulatory and legislative agenda for Congress’s Higher Education reauthorization legislation.

OGC at Catholic University continues to work with other institutions on federal regulation of religiously-affiliated schools, including such issues as the proper role of accreditation agencies when evaluating academic programs at such schools. Being vigilant about and advocating for the religious-freedom rights of the University, whether in local courts, landmark federal cases or in the D.C. or U.S. legislative and regulatory arenas, are essential to the university’s long-term ability to pursue its unique and important educational mission.

A National Voice for Religious Freedom on campus

In the last several years, the university has also been a voice for the First Amendment religious freedom rights of religiously affiliated universities, notably in its own case EEOC and Elizabeth McDonough v. Catholic University in which the U.S. Court of Appeals for the District of Columbia Circuit upheld the university’s right to be free from governmental intrusion in matters involving its ecclesiastical faculties. Even in matters where the university wasn’t a party to the lawsuit, however, the university has played an important role.

In the 2002 University of Great Falls v. National Labor Relations Board case, CUA filed an amicus brief defending the right of the Great Falls, Montana Roman Catholic institution to be free from government intrusion in its personnel and operational decisions. In a dispute with its faculty over the elements of health insurance coverage, Great Falls University found itself subjected to an inquiry by the National Labor Relations Board whether it had a “substantially religious character” that would exempt it from NLRB scrutiny. The NLRB ruled that the university was not sufficiently religious to be exempt from the Board’s jurisdiction, relying on factors including that the curriculum does not require that the Catholic faith be emphasized; that there were lay administrators at the school; that faculty members were not required to be Catholic; that students came from many religious backgrounds; and that students were not required to study Catholicism.

In overturning that finding, the U.S. Court of Appeals for the District of Columbia Circuit specifically noted support for Great Falls University from The Catholic University of America and other religiously-affiliated schools and held that it is not appropriate for the government in such a case to be “trolling through the beliefs of the university, making determinations about its religious mission” and setting itself up to judge the religiosity of a religiously-affiliated university. Ultimately, the Court set out a landmark three-part test to determine whether the government should be allowed to intervene in such cases: first, require the institution to show that it holds itself out as providing a religious educational environment, even if its principal academic focus is on “secular” subjects; second, require the school to be organized as a non-profit entity; and third, require the school to be religiously-affiliated. Such protection prevents the Labor Board from delving into matters of religious doctrine or motive. For more information on this case and links to related materials, check http://counsel.cua.edu/fedlaw/Lmra1947.cfm#GreatFalls

In Locke v. Davey, a case from Washington State being argued in the Court this Term, CUA and half a dozen other religiously-affiliated schools have filed an amicus brief on the question of whether the Free Exercise Clause of the First Amendment prohibits the government from denying an otherwise-qualified individual equal access to taxpayer-funded benefits solely because he has chosen to use the benefits for an educational program that has a religious character. The Locke case involves Washington State’s Blaine Amendment prohibiting the use of public money for religious instruction. More information on this case is available on our website at http://counsel.cua.edu/religion/.

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Students who want to listen to music online but who do not want to support what they view as corporate monopolies have other options besides the download of MP3s posted in violation of copyright laws. What are some of those other options?

The Creative Commons is a space where artists, musicians, writers and photographers can post their content online and choose what kind of license to assign to their work. Some may choose to identify the content posted as belonging to the public domain, which means the music or photograph is freely available to all who wish to use it. A variety of other licensing formats exists. A visitor to the Creative Commons web site can copy and distribute the creative work using the conditions specified by the creator. The conditions include attribution only (free to use but give the author credit); non-commercial use only; allow derivative use of the work, or any combination of the above. For a full description see the choose license section of the Creative Commons. The OPSOUND (Open Sound Resource) section of the Creative Commons allows users to download music posted to the web site free of charge and use the music in accord with the license.

The MagnaTune web page is a web page for those who wish to sample music before purchasing the CD. Not being able to sample music is a common complaint of those who download MP3s off the web. This site is founded for musicians by musicians, and has no major label connections.

This is a unique web site where listeners who like classical music can hear live and archived concert performances by great artists. Alain Coblence, a French lawyer, classical music aficionado and entrepreneur came up with this website along with a record label called Andante. Andante has exclusive contracts with some world-class orchestras to stream and sell their live concerts. A free trial period of the site is available, after which users must pay a subscription fee.

MP3.com is a web site where students can listen to both free and fee based music. Top 40 music is generally by subscriber only, but thousands of artists seeking a listening base list their songs with MP3.com, allowing free downloads of their music.

Many excellent radio programs are webcast over college radio stations. American University webcasts at www.wamu.org. Saturday night from 7 to 10 pm there is a program called Hot Jazz Saturday Night with Rob Bamberger featuring old jazz recordings. Sunday afternoons from 1 to 3 pm folk music fans can listen to the Dick Spotswood Show. Since approximately 75% of the music played on this show is not currently available for purchase, the program and the station's archives perform an important music preservation function. The playlist reaches back to the 1890's, but the focus is on music from the 1920's to the 1950's.

An excellent example of a foreign recording library is The Virtual Gramophone, a website of Canadian Historical Sound Recordings. This is a multi-media database which, when completed, will provide a detailed picture of the 78-rpm era in Canada.

Popular music that is offered on current recordings can now be downloaded without paying for the entire CD. The music webpage of Live365.com has a list of websites where popular songs may be downloaded for a small fee. Recently Apple Computer launched a Windows-compatible version of its popular iTunes Music Store. The store features over 400,000 tracks including the five major labels and 200 independent labels. Songs can be downloaded for 99¢ each.

For $12 you can purchase a device called Total Recorder that allows you to make copies of webcasts. It is not clear at this time whether Total Recorder technically circumvents streaming technologies and therefore might be illegal.[1] It is probably a good idea to use it only with works that are in the public domain or where copying would be a fair use.

Determining whether the recording and underlying composition of a sound recording is in the public domain is often a complex task due to the patchwork of laws that exists (both in the United States and abroad) with respect to sound recordings. Unless you're an archivist it's unlikely that you'd want to invest the time and energy necessary to figure out the public domain status of a recorded work. One of the goals of the Creative Commons is to avoid this complexity. At the Creative Commons the public domain and licensing status of the online creative work is encoded with the work.

The fair use guidelines can be used with respect to music, but only if they are studied and properly understood. If there is an easily available copy of the sound recording for sale, fair use is less likely to apply.

[1] See RealNetworks, Inc. v. Streambox Inc. 2000 U.S. Dist. LEXIS 1889 for a case granting a motion for a preliminary injunction finding that a device that could be used to capture streaming audio was likely to violate Sections 1201(a)(2) and 1201(b) of the Digital Millennium Copyright Act.