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
Print copies of Copyright and Cultural Institutions, whose publication I announced here, are now available from Amazon.com at a discounted price of $31.54. It remains available for purchase at CreateSpace, and for free download through SSRN and eCommons@Cornell.
One of the more interesting recent conflicts in the Georgia ereserves case concerns an expert report on ereserves prepared by Kenneth Crews of Columbia for the defendants. The plaintiffs tried to stop the report from being entered into the trial, but the judge allowed it. The plaintiffs then filed their responses to the expert report and Crews has responded to them.
One can see why the plaintiffs wanted to keep the report out of the record. It is essential reading for anyone interested in ereserves in libraries, and makes a very strong case that “the Georgia University Policy, as examined in this report, is consistent with the copyright law of the United States, and when followed by instructors, librarians, and others at the university, the policy will provide an effective means for promoting compliance with the law at the university” (p.68).
The most important part of the report are found in Part IV, where Crews describes the evolution and importance of reserves in libraries, and Part V, where he discusses the legal basis for ereserves. In the latter section, he highlights the judiciary’s evolving understanding of fair use. The courts, he suggests, have abandoned an earlier formulaic approach to fair use and have moved to a more flexible interpretation of the law. Along the way, he demolishes certain assumptions that have been too-easily accepted by some librarians, such as the necessity of getting permission for subsequent use and the need to follow strict percentage guidelines when copying for reserves. He also conducted a review of the reserve policies in use at schools around the nation (and in the process compiled a handy implicit checklist of issues for anyone developing a reserves policy to consider).
Crews’s response to the critics of the report discusses in detail the insufficiency of licensing as an alternative to an ereserves system based on fair use. He also discusses why ereserves do not threaten the future of scholarly publishing.
There are of course areas that I wished he had emphasized more. I think more attention could have been paid, for example, to the role of the library in supporting copying by students that, if done by the student, is likely legal. If we focus on library reproduction, we make the library appear to be the publisher of anthologies and not the agent of students. In addition, I don’t know enough about the law to know whether the inefficiency and unfairness of some licensing is a justification for limiting the scope of licensing.
Nevertheless, this documentation is an important contribution to the ereserve discussion and should be required reading even for those librarians not interested in the case but only in the topic.
UPDATE: Dan Lee pointed out to me that the PDF files downloaded from PACER do not seem to open in Acrobat Reader. I use the free Foxit Reader, and it opens the downloaded files just fine. So do two other free PDF readers I use, PDF-Xchange Viewer and GSview. If anyone knows how to fix the PDFs so that they appear in Acrobat, I would love to hear about it.
From Larry Siems, Director, Freedom to Write and International Programs
Dear Core Freedoms Friends and Supporters,
Now is the time to raise your voice in support of reader privacy.
This week, the House Judiciary Committee approved a bill to amend the
Patriot Act’s bookstore and library provisions. This proposed bill
would essentially accomplish the principal goals we’ve been working
towards with our partners in the Campaign for Reader Privacy. The USA
Patriot Amendments Act of 2009 (H.R. 3845) will now head to the floor
for a vote, which could come any day.
Your representatives need to hear from supporters like you.
Currently, Section 215 of the Patriot Act allows the FBI to secretly
obtain any “tangible thing,” which includes any business records that
are “relevant” to an ongoing investigation, including the records of
people who are not suspected of any criminal acts.
The new legislation will prohibit the use of Section 215 to search the
records of a library patron or bookstore customer unless there are
“specific and articulable facts” to show that the person is “a
suspected agent of a foreign power” or someone who is in contact with
or known to the suspected agent. H.R. 3845 thus allows readers to
borrow and purchase books without fear that the government is
monitoring their reading selections.
Please take a moment to call, email or fax your representative and ask
him or her to support H.R. 3845 in its present form with its welcome
and necessary protections for the privacy of bookstore and library
Jessamyn West started a fascinating exchange when she reported on her attempts to photograph the Des Moines, Iowa public library. In addition to the extensive comments on her post, it also led to an interesting exchange on an list for architects. Because I know that Carolyn Wright, the Photo Attorney, is interested in efforts to restrict photography in public places, I shared the exchange with her and she weighed in on the legal issues.
Anyone interested in policies regarding photographs in library buildings should read all the exchanges, but here is what I have taken away:
Copyright law does not limit what can be done with photographs of copyrighted buildings taken from public places. If you want to make commercial use of a photograph of the Des Moines Public Library, you can.
Nevertheless, both the Library and the architect of the building wish to restrict commercial photography of the building in spite of what copyright law allows.
As Carolyn Wright points out, in order to restrict legal uses, the library has to use some other law. In this case, it is trespass. The library is in effect saying “You can only enter the library if you agree not to make commercial use of photographs of the building.”
I can understand some of the restrictions on meeting room policy that the library has. For example, the policy as given in Jessamyn’s blog entry states that “photographing may not disrupt library customers’ use of the library.” That seems eminently reasonable. It adds “Library employees on duty may not be photographed for political campaigns.” I can understand that the library would not want to appear to be endorsing a political candidate, but I still might like to think about that one.
But I have to wonder about the wisdom of restricting commercial use of photographs. We don’t say that users can only make non-commercial use of the books, magazines, and internet access that the library provides; I am not sure why one would want to make this distinction about photography of a public building.
Some of the commentators to Jessamyn’s post suggest that the restriction may have been required by the contract the library signed with architect. I would encourage libraries that are signing contracts with architects to think about whether there are contract terms that are in conflict with traditional library principles of access and openness.
Lastly, while the discussion has been about photographs of buildings, we shouldn’t forget about the rights of people who might be in those buildings. Bryan Carson has an excellent article called “Laws for Using Photos You Take at Your Library.” He reminds us that while, in general, you don’t have to worry about non-commercial use of photographs of people taken in public spaces, there are states in which permission is required if you are using photographs for “advertising.” Library marketing could fall into this category, and so it is best to get releases. ALA’s “Use of Photographs in Publicity Materials” wiki page has some useful resources and links.
Many of the critics of the proposed Google Book Settlement (GBS) have pointed out that it attempts to use the class action mechanism to effect what should be a legislative prerogative. James Grimmelmann’s amicusbrief on behalf of the Institute for Information Law and Policy, for example, argues that the settlement “inappropriately attempts to solve a legislative problem through a class action settlement.” Most recently, Pamela Samuelson has recently written that “The GBS settlement contravenes core rule of law principles of our society. To accomplish such an extraordinarily comprehensive restructuring of the future market for digitized books requires legislative action.”
I can’t speak to the issue of the harm that GBS may do to our legal system; I am an archivist, and my primary interest is in making sure that as much information is possible is publicly available. If a legislative solution could do this, so much the better. So the question is what would a legislative solution look like? When one examines the alternatives, however, I don’t see much hope of agreement on an efficient solution.
Before we look at solutions, it is important to define the source of the problem. GBS is a product of four fundamental flaws with our current copyright system: automatic copyright protection for every fixed creative work; the presumption that the grant monopoly rights to the copyright owner is total; the provision of unconscionably long copyright terms that have no empirical relationship with the incentive to create (as mandated by the Constitution); and draconian penalties if one should infringe.
These four components of current copyright law – automatic protection, presumption of monopoly rights, long copyright terms, and draconian penalties – are deadly to any mass digitization project. Because of them, most published items are still protected by copyright. Furthermore, books cannot be digitized and made available without permission. The transaction costs of identifying, locating, and securing permission to digitize works is incredibly high, and for a large percentage, no rights holder will ever be found. Money spent on searching for these authors is just an additional tax on potential users of these works. Yet if one risks making those works available without permission, one runs the risk of incurring ruinous damages.
A desirable legislative solution would both respect the interests of rights holders while at the same time limiting the transaction costs incurred by mass digitizers. Those who have argued for a legislative alternative to GBS have not put forward draft legislation, but there are hints on what they would prefer in their writings. The proposed solutions cover a wide spectrum of approaches.
At one extreme are the ideas put forward by Marybeth Peters in her testimony before Congress. Peters notes that “the settlement proposed by the parties would encroach on responsibility for copyright policy that traditionally has been the domain of Congress.” Specifically, she notes that the settlement in effect creates a compulsory license for Google, and that “compulsory licenses in the context of copyright law have traditionally been the domain of Congress.” (Whether a license that has an opt-out provision is truly “compulsory” is an issue for a later day…)
Critics have long noted that the Copyright Office traditionally has protected the interests of copyright owners over the public. Perhaps as a consequence, it has traditionally opposed compulsory licenses that diminish an author’s ability to control his or her work. Peters did not assert that a legislated (as opposed to judicial) compulsory license would be appropriate to address the GBS problem. At most, it is “an interesting proposition that might merit Congressional consideration” (emphasis added). Instead, she seems to think that Google should be following the procedures recommended in the proposed legislation on orphan works. Yet the orphan works solution, which requires a diligent search for a copyright owner, just exacerbates the high transaction costs associated with a mass digitization project. As Georgia Harper has noted, the proposed bills on orphan works “conceive of orphans as adoptable on a case-by-case basis only, not at scale, with all the in-depth investigation that the analogy to adoption suggests. Such an approach seems to me to be unworkable even case-by-case, and … no legislative proposal will accommodate the scale of operation Google has undertaken.”
Peters also goes out of her way “to underscore for the Committee that out-of-print works and orphan works are not coextensive.” That means that if orphan works legislation were to pass, Google could make available the full text of those books whose rights holders cannot be found after a diligent search, but most out-of-print books would still be off-limits until permission had been secured.
In summary, if we can read between the lines of her testimony, Peters’s preferred legislative solution, would bend over backwards to protect the interest of rights holders. It would do nothing to lower the transaction costs. Google could, if it wanted, try to convince Congress (and the Copyright Office) that “a solution that is more like a compulsory license may make sense for those engaged in mass scanning,” but the Office’s traditional opposition to compulsory licenses stands. I don’t see anything in Peters’s testimony that suggests a likely legislative solution that would solve the four problems facing mass digitization.
At the other end of possible legislative solutions is an idea argued by Larry Lessig and Chris Sprigman: adding formalities back into the copyright system. Technology makes the idea of an affordable international copyright registry conceivable. It would make it possible to identify, locate, and negotiate with those who are concerned about the rights in their work, and make accessible all the works of those who do not care (and hence don’t register) or who don’t know that they own rights. This approach would seem to be the ideal method of both protecting the interests of rights holders and the general public, but the legislation introduced in 2004 to enact this idea went nowhere.
Perhaps even more radical is the approach of Brewster Kahle. There is, Kahle argues, an alternative to GBS: orphan works legislation. But Kahle’s vision of orphan works is different than everyone else’s. For Kahle, all out-of-print books are orphans. “Remember,” he writes, “this is all about controlling the Orphans, or out-of-print works” (emphasis added). Later in the same post he speaks of “out-of-print/Orphan works.” In this regard, Kahle flies counter to the Orphan Works report and the legislation that he extols, both of which make it clear that an out-of-print work is not necessarily an orphan work.
If not existing orphan works legislation, what is Kahle’s vision of a legislative solution? We have some hints:
Only if an owner comes forward and prove they own a work (with penalties for overreaching, and not just weak anyone-can-claim-anything-with-no-negative-consequences as it is proposed now) then they can negotiate for money. Otherwise Orphan/Out-of-Print works can be used by anyone, say, for non-commercial use. This is roughly how the Orphan Works legislation works…
Kahle’s vision is one where “out-of-print” equals “orphan,” and anyone is able to make non-commercial use of the work unless an owner comes forward. It is an inspiring vision, but to suggest that this is “roughly how Orphan Works legislation” works is disingenuousness worthy of Sergey Brin himself. Under the proposed legislation, orphan and out-of-print books could be used by anyone for any purpose – but only after a reasonable search for a copyright owner had been conducted. Out-of-print but non-orphan books could not be used, even if the purpose was non-commercial. No one other than Kahle has dreamed of a system where failure to maintain a work in print would limit one’s copyright monopoly.
So right into the middle of the legislative spectrum between those who worry about the rights of rights holders and those who worry about users appears Google’s judicial settlement. It gives rights owners the ability to opt-out, compensates those rights owners who want to stay in, and minimizes the cost of locating copyright owners. It is not perfect, and Samuelson in particular has articulated a slew of ways to improve it. But as far as a legislative solution goes, David Sohn at the Center for Democracy & Technology has still said it best:
In short, yes, Congress should have the last word. But in the meantime, the Google Books settlement offers the chance to expand public access and increase exposure for many millions of out-of-print works in ways that generally should benefit readers and authors alike.
Text, text, text—kids everywhere are glued to their cell phones, texting away, a whole generation speaking with their thumbs. Exasperated parents have often complained about the behaviors of their cell phone-happy offspring, but is there really that much to fuss about? No, says David Crystal. In his new book, Txting: The gr8 db8, he provides an excellent resource for those curious to understand the real story behind texting.
David Crystal, with eloquence and wit, provides information about the new communication revolution born out of cell phone texting. His book is organized in an easy-to-follow structure, and he begins in his first chapter by giving a brief and relatively unknown account of the history of texting, explaining how pervasive it’s become. From here, he launches into a series of questions, answered in a chapter, to give a more complete understanding of the texting phenomenon.
While some of his descriptions may not appeal to the public at large, particularly his discussion on distinctive features, it does prove interesting reading, especially to people interested in how this new communicative pattern functions. Occasionally, the structure gets away from the author, and some answers, for example, to why people text can be found in other sections of the book. However, the author makes up for occasionally rocky structure through his charming voice. Overall, however, he takes a rather complicated linguistic subject and makes it palatable to the general public.
Texting is an evolving process, one that changes so that analysts can never quite pin it down. A book concerning texting always has the risk of being out-of-date by the time it hits the bookshelves. However, while some of the information in the book is necessarily antiquated, the ideas and theories extracted from the data remain pertinent. The book offers a great deal of information about this social phenomenon, and the examples Crystal provides constructs one of the more comprehensive views possible of texting.
While Crystal firmly places himself on the pro-texting side of the debate, I appreciate his ability to also clearly present the dangers of texting. While he agrees that texting has opened up a new mode of creativity and self-reporting, he also explains that there are social and physiological repercussions of texting that may not be so positive. In this way, the book helps to give both sides of the debate, and leave it to his readers to make a decision for themselves.
*Karen Ives is a rhetoric masters student in Carnegie Mellon University's English department, specializing in computer mediated communication.
In the most recent issue of Current Cites, I draw attention to a recent issue brief written by Janice Pilch, ARL’s visiting program officer on international copyright, on what are called “traditional cultural expressions” (TCEs). Efforts are underway in WIPO, the World Intellectual Property Organization, to create a new kind of copyright to protect the folklore and traditional culture of indigenous and native peoples. Depending on the final shape of the treaty, this could have an immense impact on libraries and archives. Pilch’s issue brief is a terrific introduction to this complicated topic.
Pilch has been churning out other issue briefs on international topics that should be of concern to librarians and archives. On the Library Copyright Alliance web site’s International section there are now briefs on the following hot topics:
The WIPO Development Agenda. Pilch notes that this represents a major shift for WIPO, since it focuses less on the interests of rights owners and more on “the knowledge gap and the digital divide that separate wealthy nations from poor nations.”
More and more the intellectual property policy that shapes what libraries and archives can do is being fashioned in Geneva. Pilch and ARL are to be commended for generating a series of clear, informative issue briefs that can help educate librarians about these developments.