LibraryLaw Blog

Action on INDUCE Act this Week?

According to recent news reports, the Senate is expected to take action on the INDUCE Act on Thursday.

Many are concerned not only with the present text of the INDUCE ACT, but the expected replacement text, which has not been released. The present text would would make Internet service providers and other liable if their software or technology "induces" users to violate copyright laws.

Several groups, including ALA, are asking people to call their Senators in opposition to the bill.

More on the INDUCE Act.

Locking up Hemingway

Ann Bartow has drawn our attention to an article (registration required) in today's New York Times about an unpublished story by Hemingway that cannot see the light of day because the Hemingway Estate has forbidden publication. Ann reports that "This is of particular interest here at the U of South Carolina, because we possess a large number of Hemingway papers and had great ambitions about publishing them that got completely thwarted by the Copyright Term Extension Act (CTEA). The South Carolina faculty member mentioned in the article [Matthew J. Bruccoli] has a special grudge against the CTEA that might be of interest. He basically planned his very life around the Hemingway papers, planning to devote his retirement years (right about now) to getting them into publication around the world. He spent many years and a lot of the University's money acquiring the papers to facilitate this. Now he probably won't even live long enough to see them reach the public domain. I wonder if people will still be as interested in Hemingway in 20 plus years, and what exactly the "estate" thinks it is accomplishing."

Prior to the passage of CTEA, Hemingway's unpublished works would have entered the public domain on 1 Jan. 2012 (1961 + 50 years). Now it won't happen until 1 Jan. 2032. If Hemingway had succeeded in publishing the story in 1924, the longest copyright term he could have expected would have expired in 1980. One really has to wonder how "the progress of science and the arts" is advanced by keeping works unavailable for over 50 years past the time the author hoped they would enter the public domain.

Make quick call TODAY: Senate hearing tomorrow for SAFE Act - would help libraries protect library records (among other things)

In a surprise move, the US Senate Judiciary Committee will hold hearings on the SAFE Act (S-1709) this Wednesday, September 22, at 10am EST. The SAFE Act, authored by Senators Larry Craig of Idaho and Richard Durbin of Illinois, both increases the effectiveness of antiterrorism efforts and protects the civil liberties of law-abiding U.S. citizens and residents. It is a bi-partisan bill supported by Republicans and Democrats that, among other things, restores protections for the privacy of bookstore and library records that were eliminated by Section 215 of the USA PATRIOT Act.

via Eli at info-commons-blog: SAFE Act Hearing tomorrow , ALAWON and BORDC ... click above to see if your Senator is on the Judiciary Committee. Phone numbers are given - time to call is now.

Wired News: Saving the Artistic Orphans

In Wired (Sept 20), Katie Dean writes about the Kahle case:

The plaintiffs are currently collecting examples of orphan works to bolster their case. In one instance, a university seeks to digitize all the newspapers in the state, but for some of the defunct papers, it is impossible to know who owns the back issues, Sprigman said.

In another case, an editor would like to re-publish the essays of Dr. Leo Alexander, who wrote articles that dissect Nazi ethics for criminology journals, but the author is dead and his heirs haven't been found to grant permission. Schism, a monthly magazine of fringe literature from the late 1960s and early 1970s, is another puzzle where the copyright owner is unknown.

Library and archive examples are still needed. If your digitization project has stalled cuz you have no clue who to contact for permissions, submit the details here.

Hawaii's take on library lawsuit - Trust us -

Attorney General Mark Bennett, who along with Gov. Linda Lingle was named as a defendant, said the ACLU's lawsuit is based on the flawed premise that authorities would abuse the law. "Just because a statute is capable of being abused, doesn't mean that the statute is unconstitutional," Bennett said.

From B.J. Reyes, Barred From Library For Reading Gay News, The Associated Press at Gay News From 365Gay.com

Free Copyright ALA-sponsored telecast

The American Library Association's Office for Information Technology Policy and NILRC: Network of Illinois Learning Resources in Community Colleges are presenting

Making ©opyright Work For Your Library

In a Free Live Satellite Broadcast on
Friday, September 24, 2004
Noon to 2:00 P.M. Eastern Time

The program is described as "a national teleconference with an in depth look at copyright issues facing librarians and educators in the digital age", with three speakers:
* Carrie Russell, Copyright Specialist, ALA Washington Office
* Kenneth Crews, Professor, Indiana University School of Law
* Edward Valauskas, Follett Chair in Library and Information Science, Dominican University.

They will give you their view of the key issues facing librarians and educators.

Registration is free, but required, so if interested, register here: http://www.cod.edu/teleconf/ALA/register.htm

What was published before 2003?

In a recent post to her new blog, Elizabeth Townsend-Gard wonders about an unusual copyright provision concerning unpublished works and its impact on scholarship. The 1976 Copyright Act granted federal copyright for the first time to unpublished, unregistered works with the provision that these works would lose their perpetual common law copyright. They now enter the public domain using the same timeframe as published works. There are two twists: (1) No matter when the work was created, it enjoyed copyright at least until December 31, 2002. (2) If the work was published by December 31, 2002, the term of copyright does not expire before December 31, 2047. See Section 303.

It is a good question for investigation, but my take is no. Oh sure, the editor of the Mark Twain Project asserted in a post in 1998, in response to some comments from Siva Vaidhyanathan, that "that virtually everything now unpublished by Mark Twain will therefore *be* published before the end of 2001" in order to secure copyright protection. If such microfilms were ever produced and distributed to the public (the definition of publication in the law), though, I haven't seen notice of it. I can't think of any other effort to try to take advantage of the 2047 extension (though there must have been some).

As for changing scholarship, I don't think many historians and literary scholars were aware of the draconian restrictions on unpublished work prior to it receiving Federal copyright protection (unless they were working with relatively contemporary materials). That, at least, is the sense I get from Michael Les Benedict's excellent analysis of the pre- and post-copyright regimes in " "Historians and the Continuing Controversy over Fair Use of Unpublished Manuscript Materials" in the the American Historical Review 1986. If they didn't understand the rules before, I don't know if the looser restrictions now would change their behavior.

It will be interesting, however, to see if Elizabeth can prove my assumptions right or wrong.

UPDATE: the introductory paragraph was expanded to describe the law on 9/15/2004.

Forgeries and archival authenticity

I have been following the stories about the supposed forged CBS documents with great interest. You can find a good introduction to some of the discussion in Ernest Miller's blog entry Corante > The Importance of... > CBS Memo Defense: Richard Katz Is Wrong About Ones and Els.

People like Miller and Seth Finklestein (CBS Forged Memos Comparison Evidence) are unknowingly reinventing the ancient and venerable archival science of diplomatics: "The study of the creation, forms, and transmission of records, and their relationship to the facts represented in them and to their creator, in order to identify, evaluate, and communicate their nature and authenticity." There is great interest being paid to the form of the documents in order to draw conclusions about their authenticity.

We can do that with typed documents from the 1970s, but what clues would we have if these documents only existed in electronic form? What would constitute documentary evidence that could be considered to be legally binding? There is some discussion of this in the CLIR report Authenticity in a Digital Environment, but I would stress the need for an independent third party repository for the documents. Would we be asking questions about the documents' authenticity if the documents had come from the National Military Personnel Records Center in St. Louis (assuming that there was a clear chain of provenace from creation to deposit, and assuming as well that the director of the National Archives, which oversees the Center, was an independent professional and not a political appointee)?

ACLU complaint against Hawaii for evicting patron viewing gay site - is now online

I found the ACLU complaint against Hawaii (the State Library evicted a man who was at a gay site - see Sept 7 blog entry). It says that Hawaii state law "Act 50 of 2004" H.R.S. § 708-814, has been used on at least two occasions to ban individuals from the State Library for one year. Carlos Hernandez, the patron looking at gayhawaii.com was apparently in a chat room at the site when a security guard banned Hernandez.

The ACLU claims that Act 50 allows any police officer or authorized person to ban an individual from public property based on nothing more than the officer’s or person’s prejudices and predilections. It says Act 50 should be struck down for vagueness, overbreadth, lack of due process and other grounds.

To see the facts alleged read the continuation of this post below. Very strangely, it claims that the librarian said that she believed the security guard was being too harsh, but there was “nothing that she could do” about the trespass warnings or the ban.

That makes no sense - the guards are hired by the library, not the other way around. Added note: When I was a librarian, I fired a security guard who was hassling patrons. It's very clear that the library has the authority, not the guard.

ACLU Sept 7 press release

No conflict of interest when city council reimbursed council member's law firm for library research

Interesting. Can charging for a law firm librarian's research establish that the firm is engaged in an attorney-client relationship, subjecting it to conflicts-of-interest liability? The Texas Supreme Court says no, at least in the Harry Joe case. Harry Joe was a city council member and an attorney in private practice. Not an uncommon dual occupation.

Joe used his private law firm's library services to research a real estate matter for the council. Joe billed the city for the librarian's retrieval of case law, but did not bill for his own services. Joe-the-city-council-member then voted for a development moratorium, against the interest of one of his law firm clients - a real estate developer. The client sued Joe, claiming he had a conflict of interest.

The Texas State Supreme Court ruled in Joe's favor last week - no conflict of interest.

Lots of issues were raised: immunity, state professional conduct rules...but the library research discussion is particularly interesting:

[The real estate developer] points to a Jenkens billing statement titled "Gen. Expense Reimbursement-H. Joe" as evidence that Joe and the City had an attorney-client relationship. The statement, which 239 JV argues was submitted to the City for payment, is an administrative reimbursement for the librarian's retrieval of requested case law and did not include any charges for Joe's services. Thus, Joe's motion for summary judgment establishes that Joe's research was in preparation for a city council meeting, was not part of legal services provided to the City of Irving, and does not create an attorney-client relationship between Joe and the City as a matter of law.

Joe v. Two Thirty Nine Joint Venture, NO. 02-0218 , SUPREME COURT OF TEXAS September 3, 2004