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
More on the Recast Copyright petition that's going around:
WE PETITION THE OBAMA ADMINISTRATION TO:
Recast copyright law for the digital era. It's time to regain public respect with laws that make sense.
The public disregards copyright law because it is out of sync with the digital age. We want the right to resell digital content (ebooks, etc.) that we've paid for. We need transparency in the marketplace to understand what rights we have.
Additionally, as responsible creators we need to be able to freely remix existing music and other forms of creative expression to create new works without undue fear of prosecution. This upholds the original Constitutional purpose of copyright, which is to promote progress.
This will nurture the process of innovation and the sharing of our culture. The language of the existing copyright law must be changed to accommodate the way information is being created and consumed in our digital world.
Get your free White House account (easy to do, honest) and sign the petition here:
A librarian told me that a new Nook is accessible. Could anyone please tell me if you've used it and whether or not it really is? I called B&N and they pointed me to the Nook HD tablet and Nook ND plus.
Back in July of 2010 I reported on the lawsuits brought by the photographer Anne Pearse-Hocker against the National Museum of the American Indian, for making copies of her copyrighted photographs, and against Firelight Media, which used the photographs in its documentary film about Wounded Knee. I noted that it was one of the rare lawsuits against a cultural heritage institution and ended by noting that “This case should be interesting to follow – if it is not settled out of court.”
Thanks to the wonderful people at Justia, it has been possible to follow the court filings in the case. And as I suspected, both cases settled before proceeding to trial. Still, there is plenty of interesting hints in the documents about how the story played out.
The case of Pearse-Hocker v. Firelight Media, Inc.settled first, on 14 October 2010. The “Stipulation of Dismissal” says nothing about the terms, merely that each side is responsible for its own legal fees. An earlier document, though, suggests that the parties had “reached agreement as to the monetary term of settlement.” One would love to know whether the amount of settlement was symbolic or substantial.
…the photograph numbered N44622 is shown at approximately minute 63 of the film for a duration of approximately seven seconds, that the photograph numbered N44926 is shown at approximately minute 64 of the film for a duration of approximately 16 seconds, and that the photograph numbered N45215 is show at approximately minute 65 of the film for a duration of approximately 7 seconds.
The judgment in the other case, Pearse-Hocker v. United States, which was entered in June, 2011, is more informative. The museum (which as part of the Smithsonian is a unit of the US government – hence “United States” as the defendant) agreed to pay Pearse-Hocker $40,000. In addition, they had to provide her with a digital copy of the 15 photo contact sheets in the collection, from which she could select 100 images to be provided to her at high-resolution. This would normally cost an additional $7,500. Finally, the director of the museum, Kevin Glover, had to send Pearse-Hocker a letter acknowledging her generosity in donating the photos to the museum. The museum did not have to return the collection of photos to Pearse-Hocker, however, which was one of the demands in her original complaint.
The museum did not admit that it had violated any laws or contracts, but it is hard to determine what defense it might have used if the case had proceeded to trial. Its pro forma response to the initial complaint hinted that it would have argued that Firelight Media’s use was a fair use and that it had a license from Pearse-Hocker to copy the material for Firelight.
What lessons can a cultural heritage repository take away from this case? First and foremost, it emphasizes the need to respect and follow the terms in a deed of gift. Sometimes deeds require practices and procedures that are outside of the ordinary, but that just means that our workflows have to be such that anomalous items are consistently identified.
Second, we should make sure that the terms in the deed are as clear as possible. Pearse-Hocker’s Deed of Gift (Exhibit B of the original complaint) states “I hereby also assign and transfer all copyright that I possess to the National Museum of the American Indian, subject only to the conditions which may be specified below.” What conditions were specified below? “I do not, by this gift, transfer copyright in the photographs to the Smithsonian Institution”! Why have a deed with two conflicting sections in it?
In addition, the deed granted to the museum “an irrevocable, non-exclusive, royalty-free, license to use, reproduce, display, and publish, in all media, including electronic media and on-line, the photographs for all standard, educational, museum, and archival purposes.” Many would argue that providing copies for non-profit documentaries on PBS is part of the standard educational mission of the museum. Yet this interpretation could be in conflict with the next sentence of the deed, which states that “requests by people or entities outside the Smithsonian to reproduce or publish the photographs shall be directed to the donor.” If the Smithsonian felt that only for-profit uses should be referred to the donor, it should have made this clear in the deed.
Third, this case reminds us that running a repository involves taking risks. We run the risk that users might steal collection material or that dirty documents caked in lead dust or mold might injure staff or patrons. We particularly run risks when we duplicate materials for patrons. It is an essential part of our service, but one that needs to be managed by knowledgeable practice and procedures. One wonders, for example, if the museum may have weakened its own defenses by charging a permission fee that is separate from the cost of making the reproduction. Such fees are designed to generate money for the museum, pure and simple. They are unconnected to “standard, educational, museum, and archival purposes,” and hence could not be supported by even the most generous reading of the license grant in the contract. Could the desire to secure $150 in permission fees have cost the museum almost $50,000 in damages?
Lastly, I would reiterate the point I made in my original post. Since the case against Firelight Media did not get very far, we do not know what its fair use defense might have looked like. I continue to suspect, however, that Firelight, like most of our users, did not really understand the difference between the permission given by the repository and the permission it needed from the copyright owner. And it may not have understood that both were needed for its use of the photographs. The museum's invoice stated that “[p]ermission is granted for the use of the following imagery, worldwide, all media rights for the life of the project.” By providing only one of the permissions that users need, we may in the end be misleading them.
As with most lawsuits, I suspect that this was a bad experience for everyone except the lawyers. Pearse-Hocker will be lucky if her $40,000 cash payment covers her legal fees in the case. The museum is out that same amount of money, as well as its time and expense in defending itself. Most of all, therefore, this case reminds us about the importance of working with donors so that a disagreement never reaches this stage.
Pornography and Internet Filters By Grayson Barber Hat tip: Martin Gomez, LA Public Library
Recently the Los Angeles Times published two editorials on the presence of pornography in libraries. Ordinarily, one might expect a leading newspaper to take a hard First Amendment line, upholding the right of library customers to read anything in a library so long as it is legal. Instead, the Times described libraries walking “a tightrope." The editorials acknowledged the deep discomfort many of us feel when we are inadvertently exposed to unwanted pornographic images.
Oddly, though, when a man was accused of masturbating in a public library, the response didn’t focus on his behavior – it emphasized the dirty pictures on the Internet!
Libraries are committed to providing a safe environment for all library users. But libraries are public buildings. It is impossible to guarantee that an individual will not read or see something which they may personally find objectionable.
Images that are acceptable in tabloids and magazines may be disturbing on a computer screen at a public library. Offensive as these images may be, they are not pornography, much less obscene. But they create difficulties for libraries, especially when they are asked to limit what people can see on computer screens.
Libraries should not be forced to install filtering software on their computers, for several reasons. State and local legislators should consider the following questions:
1. What is the scope of the problem? Last year, there were millions of visits to libraries. Of those millions, how many involved pornography?
2. Does the proposed remedy provide an effective cure? Unfortunately, no technology currently exists that would be guaranteed to perform perfectly. Inevitably, there are websites that will get through, with content that will be objectionable to someone. Worse, Internet filters prevent access to information that is legal and often desirable.
3. Are better solutions available? Librarians are committed to researching and adopting solutions that will provide patrons with the information they seek, and reduce exposure to unwanted content. For example, the Internet Corporation for Assigned Names and Numbers (ICANN) recently approved a new high-level domain ".xxx" for pornography sites. It would be better to take advantage of advances in technology instead of mandating filtering software.
4. In public libraries, do Internet filters become a form of censorship? Libraries generally exist for the purpose of helping people gain access to information, whereas filters exist for the purpose of preventing access to information. Libraries prefer to use their budgets for the purpose of acquiring materials, not for the purpose of blocking content. Libraries would prefer to give their customers wide open access to the web, so that customers can use their own judgment (as opposed to the library’s, or the software developer’s) about what is and is not suitable to read.
5. Do libraries risk overruling the judgment of parents as to the reading habits of children? Generally, librarians want parents to guide children, as opposed to substituting the public library’s (or the software developer’s) judgment as to what is suitable. We believe the best practice is to extend to minors the maximum allowable confidentiality and privacy protections, by respecting and protecting the rights of minors to choose their own library materials, to the fullest extent permitted by law.
6. Are there more cost effective ways to address the concerns reflected in the proposed legislation? Filtering software can be costly -- not only to purchase, but to update and upgrade. In order to maintain filters, staff time must be devoted to add or delete websites that are blocked. Options that are more economical may be available such as installing privacy screens, or even simply rearranging furniture to adjust sight lines.
Our goal should be to teach children and empower Internet users of all ages to control their online experience. To that end, libraries urge legislatures not to mandate Internet filtering, but to support effort to help library customers get access to all of the legal information they seek.
My cousin Katie asked if libraries could loan loaded ebook readers. For example, one device could have romances, another could have science fiction. Here are my thoughts. I'd appreciate any coments.
Let's divide the question into four scenarios. Let's start with an unloaded device and work our way up.
1 - The device is empty. The only copyrighted content is the code itself that the device uses to display ebooks.
The First Sale doctrine, at 17 U.S.C. Sect. 109 allows the library to lend this empty ereader. Even if the ereader company has software license terms that restrict loans, the First Sale doctrine should override such restrictions.
Fine print: Software is treated as a special case under First Sale. That is, although First Sale allows an individual who has an authorized copy of copyrighted content to lend, sell, or otherwise dispose of the copies, the law makes an exception that makes it possible to license computer programs. 17 U.S.C. 109(b)(1)(A). See also Vernor v Autodesk. Fortunately, 109(b)(1)(B) clarifies that if the computer program is embodied in a machine and cannot be copied during the ordinary operation of the machine, it is still governed by First Sale.
2- The device is loaded with public domain content and/or content with permission to lend (such as creative commons licensed content).
The First Sale allows the library to lend this ereader with public domain content and/or creative commons (or similar) content. There are no additional copyright restrictions that reach beyond Scenario 1. It is possible that the library has agreed to more restrictive licensing terms that someone may have placed on such content, although that is unlikely. The library should be sure to use a source that has not required the library to agree to any additional restrictions.
3- The device is loaded with ebooks licensed from a vendor such as Amazon. The license may allow a limited number of copies such as five or six.
The library may loan the ereader loaded with ebooks by following the terms of the license.
4- The device has unauthorized content.
The library should not loan an ereader under these circumstances, and should delete the content in question. Even if the library is not responsible for the unauthorized content, it could be responsible for the distribution of that content. See Hotaling v Church of Jesus Christ of Latter Day Saints (4th Cir. 1997) at http://caselaw.findlaw.com/us-4th-circuit/1057784.html
Good news for Californians who treasure their privacy. The Golden State has enacted two new laws that protect your right to read whatever you want in the library, even in electronic form with some measure of confidentiality.
The first new statute pertains to confidentiality, and extends to contractors that handle patron use records, including Amazon.com, which now offers library e-books for Kindle. While the confidentiality law has a broad reach in that it protects all library user records (books, videos, database searches etc.), the second new statute, the Reader Privacy Act goes further. It reaches nonlibrary users as well. It prohibits all commercial providers of “book services” from disclosing, or being compelled to disclose, any personal information relating to users of the book services. “Books” are defined as paginated or similarly organized content in printed, audio, electronic, or other format, but excluding magazines and newspapers).
Amazon.com keeps track of what you read. Some people appreciate this feature, because they like to receive Amazon’s suggestions for further reading. You might, for example, appreciate knowing that people who purchased The American Way of Death also enjoyed The High Cost of Leaving and Remains to Be Seen. But Amazon’s targeted advertising is based in part on your book purchases and Kindle use, and you might not want third party corporations to be told if you are recently bereaved and vulnerable.
This commercial practice stands in contrast to a bedrock privacy principle of library philosophy, that your reading choices should be confidential. Library confidentiality laws in every state of the union protect your book borrowing habits.
The new California statutes extend this principle to electronic materials in the library. The confidentiality law passed without much fanfare last summer. It extended the existing law that all publicly funded libraries must keep patron registration and circulation records confidential to all “Patron Use Records.” Patron use records are defined to include
(1) Any written or electronic record, that is used to identify the patron, including, but not limited to, a patron’s name, address, telephone number, or e-mail address, that a library patron provides in order to become eligible to borrow or use books and other materials.
(2) Any written record or electronic transaction that identifies a patron’s borrowing information or use of library information resources, including, but not limited to, database search records, borrowing records, class records, and any other personally identifiable uses of library resources information requests, or inquiries.
This means that Amazon.com cannot disclose library patron use records to prospective advertisers or any other third parties, unless it gets the patron’s authorization or a court order. This is an important point. Libraries should ensure that their users have a real choice in giving such authorization when using ebook services offered by the library. That is, we all know that many online services require consent to share your information. The alternative for the user is just not to use the service. Library ebook services must be sure to allow patrons to use the service without requiring consent to share their user information.
The reason for protecting customer reading habits has deep historical roots. Reading material has often been taken as a proxy for guilt, as when mere possession of communist literature was taken as a crime. In 2010, a college student was jailed after airport security workers found him carrying Arabic language flash cards.
Of course some readers of ebooks actually may be criminals, and law enforcement authorities need access to information about their use of book services. Both laws include provisions that allow the police and other authorities to get the information they need from libraries, Amazon.com, and other commercial providers, by applying for a court order.
Your reading habits do reveal a lot about you, from your religious beliefs to your health concerns. Amazon has the technology to tell anyone about the books you browsed but did not read, the pages where you lingered, and the electronic notes you made.
That’s why it is such good news that in California e-books and conventional books enjoy the same level of protection when they are borrowed from libraries.
Grayson Barber is an attorney and privacy advocate in Princeton, New Jersey.