Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw
Is the library responsible for bad patron copyright behavior? That is, when you notice (or let's face it, sometimes the patrons proudly tell you) that a patron is checking out DVDs purely to duplicate and then returning for more, is there a legal responsibility to do something about it? Ethical?
I wrote an article about library liability for patron copyingwhen they use library equipment to download stuff off the Internet. The copyright law graciously lets libraries out of the liability loop ... as long as the equipment displays a notice that "making a copy may be subject to the copyright law." That's why every library posts notices by their photocopiers. The law doesn't specify photocopiers, luckily, but says "reproducing equipment" (see below the fold for the law itself). Libraries should display these same notices by any reproducing equipment, say, computers and printers.
I don't believe the law contemplates the boasting infringing patron who borrows the library's DVDs to make copies using patron-supplied-equipment. So I turn the question back to you, dear readers... for your thoughts.
I just read in ALA News that Iowa has a new bill tying state funding to library filters. Does your state have a library filtering law? According to Pam Greenberg's chart at the National Conference of State Legislatures, 15 states do. She posts an easy to read chart with summaries of the state law requirements, and links to the statutes themselves.
For example, California requires public libraries that receive state funds to adopt a policy regarding access by minors to the Internet, but there aren't any prescriptions on what the policy must say.
If your state doesn't have a library filtering law, how likely is it, do you think, that you will have one soon?
I asked Pam what she sees as the current trend, and she replied (reprinted with permission):
Several years ago, state legislatures were responding to citizen concerns by introducing and enacting legislation relating to Internet filtering or access policies in schools and libraries. But since Congress passed the Children's Internet Protection Act in 2000 and the Supreme Court upheld the law in 2003, fewer states have seen the need for legislation in this area.
Control over a physical manuscript can give you the ability to license people, but the question is, if someone doesn't take a license, and you don't otherwise have a contractual relationship, what right has been violated? In the case of a copyrighted work, the answer is that the Copyright Act makes, by statute, unauthorized reproduction a violation (subject to exceptions like fair use), but for photocopying a physical manuscript the owner of the physical manuscript has no statutory right unless he is also the owner of the copyright, which Irsay isn't.
My take: I see two relationships here. First, the manuscript owner has a contract with the library. It likely has a clause requiring the library to prohibit photographs. Second, the library has a relationship with the public. Although it's unlikely that the library requires the public to sign an agreement before entering the exhibit area, the library has the right to enforce reasonable rules of conduct, related to its mission. Kreimer v. Morristown 958 F. 2d 1241 (3d Cir. 1992). Assuming the library does a reasonable job putting patrons on notice and enforces the policy equally (i.e. no one takes photographs), I believe it has the right to enforce the policy.
Then there is the practical aspect - it is a public library, after all, and doesn't have the capacity to require people to check their cameras at the door. All it can do is post signs and security guards, and then tell someone to leave if they violate the policy. The pictures already taken, by the way, have been set free on flickr.
Susan Nevelow Mart: Today's Boston Globe ran a story called When Librarians Protect Terrorists. The author, Richard L. Cravatts, believes that no one, and particularly no librarian, has the right (or the training) to deny a law enforcement request for patron computer terminal records, even when law enforcement has only made a verbal request. For a discussion of the kinds of legal process that are available to require a library to turn over records, see Mary Minow's article Library Records Post-Patriot Act. But according to Cravatts. when the law shows up, you have no option but to turn over anything a law enforcement officer asks for. In support, he quotes Heather Mac Donald:
Like it or not, once you've disclosed information to someone else, the Constitution no longer protects it. This diffuse-it-and-lose-it rule applies to library borrowing and Web surfing as well, however much librarians may claim otherwise.
Merely "disclosing," however, is not enough to lose one's 4th Amendment rights. Flawed as it is in the modern day, the Supreme Court's Smith v. Maryland is still the law: that was the case that held that the police can't listen to the content of a phone call, where John is disclosing something to Mary, without a warrant, because, among other things, of the speaker's expectation of privacy. Similarly, the police can't "listen" to the computer traffic of everyone on a public computer, just because they want to. Unless there are exigent circumstances, the police need a warrant. Even the FBI in this case thought so, as they waited for one. Mr. Cravatts is incensed because the library director insisted on enforcing the rights of her patrons.
The police and FBI sought the computer because they had received a "credible" bomb threat at Brandeis University, and had traced the threat to a public computer at the local public library. There is no information in the article about what the library director was told, or how the officers acted, what direct observation evidence the librarians could have given, or, for that matter, why it took ten hours (a very long time) to get a warrant.
There is a distinction between investigating a crime in progress and a crime that has already been committed, and if there were exigent circumstances the police could have acted without a warrant. In this case. they were clearly not willing to bet that the circumstances allowed them to perform a warrantless search and seizure.
I suspect there is more to this story than has currently been reported.
If a patron asks us to enter the number on the credit card that they hand us and it turns out to be stolen, what is the staff member's liability?
Response: Oh my, I wouldn't recommend staff touch patron credit cards or enter the credit card numbers at all! Even if the card isn't stolen, I see a swarm of potential liability problems. You enter the card number, and the site itself is a fraud. Or you enter it and somehow it gets entered twice. Or ...
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A barefoot library patron sued the Columbus Metropolitan Library, claiming the library violated his free speech rights when it told him to leave or put on shoes. The patron is a member of the Society for Barefoot Living and said he has been barefoot nearly continuously since mid-1997.
On January 26, the Ohio Tenth Appellate District upheld a decision in favor of the library.