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
A little over two years ago, I wrote a post entitled “Free the Founding Fathers!”. In it, I urged the National Archives and Records Administration (NARA) to take aggressive steps to make the papers of the Founding Fathers, which had already been heavily supported with Federal support, freely accessible online rather than only through costly subscription models.
It may have taken awhile, but NARA has finally taken some positive steps. Last week NARA and the University of Virginia Press, which has been selling access to the papers of the Founding Fathers via its Rotunda publishing platform, announced that in a year’s time a new web site that will offer the general public free access to some of the papers will be made available, with full access to all papers by June 2012. You can read NARA’s announcement here, and UVA’s companion announcement here.
This is overall good news. In this case, something is better than nothing. Of course, the press releases leaves me wanting to know more:
Why has the decision been made to create a separate web site for the general public rather than just purchasing a national site license for the existing American Founding Era collection in Rotunda?
Will this web site be fully open, both technically and in terms of rights, thus allowing scholars, students, and other businesses to engage in creative mash-ups of the material?
What will be the differences between the NARA-sponsored web site and UVA’s Rotunda product? While not mentioned in the NARA or UVA releases, the Rotunda web site states that “Rotunda will continue to add new editions not included in the National Archives version to our Founding Era collections.” If one looks at the list of existing digital collections, it would seem that NARA has defined “Founding Fathers” narrowly. Neither the Dolley Madison papers, the Documentary History of the Ratification of the Constitution, the John Marshall Papers, or the John Jay Papers, all of which are or will be part of Rotunda, are mentioned as being part of the new NARA web site.
Fortunately Archivist of the United States David S. Ferriero has appointed a high-powered external advisory group to work on the project. Mary Beth Norton and David Hackett Fisher know colonial history, and Edward L. Ayers knows how digital technologies enable radically new ways of working with historical materials. Progress has been made, and their is the hope of more in the future.
We have a ruling from the court over the motions for summary judgement in the lawsuit over Georgia State's ereserve program. Kevin Smith gives an excellent analysis of the order in Going forward with Georgia State lawsuit. The bottom line is that the court did not find Georgia State guilty of direct and vicarious copyright infringement, as the plaintiffs requested. The only issue that will go forward is whether Georgia State contributed to the copyright infringement of others through its implementation of its 2009 policy. (You can read more about direct and indirect copyright infringement in Section 4.5 of Copyright and Cultural Institutions.)
As Kevin notes, there are lots of interesting legal issues discussed in the order. What struck me most of all was the unanswered question of who actually infringed. In order to have indirect copyright infringement, there must be a direct infringement. The publishers seem to suggest that it was the "librarians and professors" who scanned, copied, displayed, and distributed the Plaintiffs' copyrighted works "on a widespread and continuing basis." Under the publishers' theory, they could have sued the faculty members who made or requested the copies (and who also write the books they publish) for direct copyright infringement.
In reality, the most that professors and librarians do is make one copy available on a server. Any distribution of these works is initiated by the students. The court seemed to recognize this in a footnote when it observes that the plaintiff's theory of liability would actually have the students who downloaded material be the potential direct infringers. The case may hinge, therefore, on whether students, and not faculty and librarians, are potential direct infringers. The question would then be whether a student making a single copy of a brief work for educational purposes is a fair use. If it is, then there is no direct infringement and there can therefore be no indirect contributory infringement.
There was one other interesting tidbit in a note. Apparently the Copyright Clearance Center is paying for 50% of this legal action. It is disturbing to think that a portion of the administrative fees that libraries are paying to the CCC are being used to bring legal actions against those paying the fees. While the CCC may claim that it is serving the interests of those who use it, that doesn't seem to be true in this case.