As a concerned parent and an IP attorney, I am writing to discuss the current sex-education textbook controversy in CUSD.  My kids attend public schools in Los Altos School District, which is adjacent to CUSD. I want to discuss three issues: (1) CUSD's position that parents outside CUSD have no say on this issue (e.g., via an online petition); (2) CUSD's assertion that the copyright law prevents concerned CUSD parents from seeing and sharing the disputed contents in the new textbook; and (3) Ms. Kausar's contact with ACLU and a recent letter that she obtained from ACLU.

CUSD recently downplayed or rejected outright the online petitions of many parents who live close to but outside CUSD, on the ground that they are not CUSD voters.  This is a flimsy excuse for your not listening to the voices of people.  There are at least two solid reasons why those voices outside CUSD matter.  First, the key issue surrounding this textbook controversy is about a recently passed bill, AB 329, which is a state law and applicable to all school districts in California.  CUSD's interpretation and implementation of this law have significant and foreseeable impacts on other neighboring school districts, including LASD.  As a LASD parent, I have a legit and vested interest in lobbying CUSD, so do other parents in similar situations.  Second, parents currently outside CUSD may consider moving into CUSD one day; maybe they are planning to move in just later this year.  You have been always taking credits for CUSD's excellence, but are now refusing to hear the voices of potential/incoming parents?

I have been informed that CUSD -- by wielding the copyright law-- refused to let concerned CUSD parents to first see the relevant sex-education contents of the controversial textbook and then exchange such information with other concerned parents.  You even told parents that you had consulted with your lawyer.  I cannot believe that.  As an IP lawyer myself, I think this is misinterpreting the copyright law and misleading the parents.  Copyright law has a well-established and well-respected Fair Use exception that would allow the parents to see the disputed sex-education contents and exchange such information with other parents.  To consider whether Fair Use is available, a federal judge will consider the following four factors:

- the purpose and character of the use

- the nature of the copyrighted work

- the amount and substantiality of the portion taken, and

- the effect of the use upon the potential market

Because the parents's intention here is to ascertain whether the contents are age-appropriate -- as part of a textbook -- for their children, I have zero doubt that their requested access to such contents can pass the four-factor test above and a federal judge will agree there is a fair use exception available to them against any copyright claims.  A case on point is the high-profile Google Book litigation.  We all know what the Google Book project is - Google scanned copyrighted books and put them available for text search on Google's website. Google also shows portions of those books (snippets of text) to the public.  The Authors Guild sued, and lost.  The Second Circuit held that Google had a fair use defense.  See Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. N.Y. 2015).  Obviously, what the parents will do here is no more, if not far less, than Google did - legally.  

The Ninth Circuit, which has jurisdiction over California, is even more liberal on Fair Use.  In Lenz v. Universal Music Corp., the Ninth Circuit concluded that fair use was not merely a defense to an infringement claim, but was an expressly authorized right, and an exception to the exclusive rights granted to the author of a creative work by copyright law: "Fair use is therefore distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright." See Lenz v. Universal Music Corp., 801 F.3d 1126, 1133 (9th Cir. Cal. 2015).

I demand CUSD to grant concerned CUSD parents immediate access to the controversial sex-education contents of the new textbook.  If you will, I would like to meet your lawyer to discuss this issue as well.

I just received a letter that Ms. Kausar recently obtained from ACLU.  In that letter, ACLU essentially threatened to sue CUSD if the disputed textbook is not used.  I was appalled, not by ACLU but Ms. Kausar's irresponsible behavior.  ACLU is not a body of any government, nor a law firm.  It is a special interest group and a progressive advocacy group.  It is actually a sponsor and the key driver behind many liberal, progressive bills such as AB 329.  ACLU's positions on those issues, including the instant one, have been well-known to the public.

I wonder how Ms. Kausar's discussion with ACLU started.  I highly suspect that Ms. Kausar initiated the discussion and intentionally obtained this letter from ACLU -- the content and intention of which would be well predictable -- as ammunition against those concerned CUSD parents.  If this is true, it was extremely irresponsible on Ms. Kausar's part.  She is an elected official, and she is responsible to her voters -- the CUSD parents -- but not some interest group or advocacy group, especially when such an interest/advocacy group's action of threatening with a lawsuit is very predictable.  Obtaining such a letter to inflict duress on CUSD parents is totally unacceptable.

So appalled, I demand Ms. Kausar explain how her discussion with ACLU started -- in particular, who (Ms. Kausar or ACLU) initiated the communication?  If Kausar refuses to do so, there is some legal avenue available for the public, including CUSD parents, under California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.).  Recently, the Supreme Court of California ruled that "a city employee's writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account."  See City of San Jose v. Superior Court, 2 Cal. 5th 608, 629 (Cal. Mar. 2, 2017).  Thus, if being compelled, Ms. Kausar needs to produce to the public all her recent communications with ACLU, including those in her personal email account(s).

Thank you for your attention to this serious matter.

Best regards,

Kai Zhu