LibraryLaw Blog

National Geospatial-Intelligence Agency warns that they will remove documents from the Web - deadline for filing comments extended to June 30, 2005

Last month, a federal agency took the unusual step of notifying the public before removing documents from its website. On November 18, 2004, the National Geospatial-Intelligence Agency (NGA) posted a notice in the Federal Register that it will remove its Flight Information Publications (FLIP), Digital Aeronautical Flight Information Files (DAFIF), and related aeronautical safety of navigation digital and hardcopy publications from public sale and distribution. These materials have been published by the NGA since the late 1940s and have always been widely available to the public. Because the removal has not yet taken place, this is an opportunity to file objections to the removal. You can send your comments to Joseph S. Jarvis  at aero.ocr@nga.mil. The deadline for accepting comments was just extended until June 30, 2005.

NGA listed conflicting purposes for the removal. The documents will be removed for:

• "safeguarding the integrity of Department of Defense (DoD) aeronautical
  navigation data currently available on the public Internet;
• preventing unfettered access to air facility data by those intending harm to the United States, its interests or allies;
• upholding terms of bi-lateral geospatial data-sharing agreements;
• avoiding competition with commercial interests; and
• avoiding intellectual property/copyright disputes with foreign agencies that provide host-nation aeronautical data."

If you can buy the aeronautical charts, why keep tax-payers from getting the free access they have always had? If anyone can buy the charts, why will severely restricting free access keep terrorists from getting the information they want? These charts generally do not have the level of detail necessary for terrorists to actually carry out an attack, according to a Rand Corporation report on geospatial information: Mapping the Risks: The Homeland Security Implications of Publicly Available Geospatial Information.

These government documents have been available for free for decades. The distribution of the maps on the web further means that they have already been "well publicized; " you can't unring the bell as far as classification goes. Others may want to comment on whether the agency's concerns over international copyright disputes has any validity.

Introducing Susan Nevelow Mart - newest contributing author to LibraryLaw Blog

My name is Susan Nevelow Mart and I am a reference librarian and adjunct professor of law at UC Hastings College of the Law in San Francisco. Until 2000, I was a civil litigator in Northern California, specializing in construction and real estate litigation. I have a J.D. from UC Berkeley - Boalt Hall School of Law (1983) and a M.L.I.S. from San Jose State University (2003).

I was doing research for a class on Intellectual Freedom at San Jose State  when I discovered the librarylaw.com website, and have been using it ever since. I am interested in access to information, in all its permutations. I have written about the constitutional right to receive information and about the impact the changes made to electronic surveillance law by the USA Patriot Act have had on libraries. I am currently working on an article about the trend in the Bush II administration to remove unclassified information from the web, and what, if anything, can be done about it.

You can view my articles at:

The Right to Receive Information, 95 Law Libr. J. 175 (2003).

Protecting the Lady from Toledo: Post-USA  Patriot Act Surveillance in the Library, 96 Law. Libr. J. 449 (2004).

Total Information Awareness panel's recommendations enacted (some of, anyway)

My father, Newton Minow, just gave me an update on his Total Terrorism Information Awareness outside advisory panel. He says that the Intelligence legislation just passed by Congress includes some of the panel's recommendations:

Some of our TAPAC [Technology and Privacy Advisory Committee] recommendations are about to become law. Specifically, our recommendations 8 and 10 are consistent with the new law.

See INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004 - go to Title I, Subtitle F- Privacy and Civil Liberties, Sec.1061 and Sec 1062, at pages 50-55. This link is to the conference report, ready for Pres. Bush's signature, via Govexec.com Dec 9, 2004.

Fair Use Lobby cheers death of omnibus bill - but orphan works provision also dead

Fair-use advocates celebrated the apparent demise of an omnibus Intellectual Property package (S-3201) they have battled from the very beginning. Gigi B. Sohn, president of Public Knowledge, said,

"Consumers should be pleased that Congress ended its session without passing legislation that would have restricted consumers' freedom to use digital media, restricted their access to information or otherwise strengthened copyright law beyond what the framers of the Constitution envisioned. Now that two Congresses have ended without major copyright legislation, we hope that the large content companies will focus their efforts on creating new business models that take advantage of new technologies rather than on legislation that would hobble the development of new technologies. But if legislation is needed, Public Knowledge looks forward to working with members of Congress and the content community on narrow fixes to copyright law as well as on our initiatives, which are intended to bring balance to copyright law and protect the rights of consumers to use digital content and information."

[SOURCE: Communications Daily, AUTHOR: Randy Barrett]
(Not available online)

Minow note: Overall, it's great for libraries that the copyright bills failed.  It's too bad, however, that a narrow library fix that was folded into the omnibus bill S 3021 (Title IV)also failed. This was originally sponsored by Reps. Berman, Lofgren and Smith as 'Preservation of Orphan Works Act'

The Orphan Works Act got precious little press. It would have fixed an oversight in the drafting of the library exception to the Sonny Bono Copyright Term Extension Act.  The library exception allows libraries, archives and nonprofit educational institutions to make copies of works, in the last twenty years of their copyright, so long as the works are not subject to normal commercial exploitation.

If you carefully read Sect. 108, you see that libraries can only make copies of audiovisual (e.g. films), graphics etc for preservation and replacement.

The Berman bill would have amended 108 to make it clear that libraries can also make copies of films etc. in the last twenty years of the copyright. This essentially returns us to the pre-Sonny Bono world.  That is, except there's still the hitch that you can only copy works in those last twenty years if they are not subject to "normal commercial exploitation", and no one knows what that really means.

I include the bill and the current law in the continuation.  Let's thank Reps. Berman, Lofgren and Smith, and encourage them to reintroduce in 109th Congress.  Maybe that could be a vehicle for greater access to orphan works, or at least a definition of "normal commercial exploitation" that calms library nerves.

You snooze you lose - lawsuit against Ann Arbor library dismissed

The lawsuit against the Ann Arbor Public Library by the swearing patron was dismissed. 

Too bad - it would have made an interesting case - perhaps giving the library world more guidance on setting legally enforceable library behavior policies. Can you ban a patron for foul language? Was behavior also involved? This case won't guide us.

from Library cursor case dropped Fredric Maxwell asks for dismissal after relocating to California by Liz Cobbs, Ann Arbor News via MLive, December 8, 2004

p.s. thanks to a couple of Ann Arbor folks for the alert.

Employee speech: The Court's abuse of the law more troubling than its abuse of the facts

A reader wrote me concerning the Roe case:

You are dismayed by the Court's interpretation of the facts of the case.  The Court, rightly or wrongly, honestly or dishonestly, concluded that Roe's activities were detrimental to the SDPD. But that is fact-specific; if Roe had not worn a uniform and had worn, say, a Zorro mask so that even people who knew him would not have recognized him as a police officer, then I presume that the Court would not have concluded that his activities were detrimental to his employer. The Court's abuse of the facts is not as troubling to me as its abuse of the law.

Its abuse of the law consists in its setting up alternate lines of cases so that it may choose whichever line it wishes to reach the result it prefers. It should have explained how Pickering and NTEU fit together. Here's what I mean.

In San Diego v. Roe, the Court held that a police department could fire a police officer who sold a video on the adults-only section of eBay that showed him stripping off a police uniform and masturbating. The Court found that the officer’s “expression does not qualify as a matter of public concern . . . and Pickering balancing does not come into play.” The Court also noted that the officer’s speech, unlike federal employees’ speech in NTEU, “was linked to his official status as a police officer, and designed to exploit his employer’s image,” and therefore “was detrimental to the mission and functions of his employer.” Therefore, the Court had “little difficulty in concluding that the City was not barred from terminating Roe under either line of cases [i.e., Pickering or NTEU].” This leaves unclear whether, had the officer’s expression not been linked to his official status, the Court would have overruled his firing under NTEU or would have upheld it under Pickering on the ground that his expression was not a matter of public concern.

Consider this: If Roe had posted photographs of beautiful sunsets, would the Court have said that they were not matters of public interest? It would have to, I think, because the videos were not obscene, and it's not the Court's business to evaluate the importance of various forms of "art." (An exception is that, in Erie v. Pap's A.M. — the second nude dancing case — the Court said that nude dancing "falls only within the outer ambit of the First Amendment's protection." 529 U.S. at 289.  And, of course, the Miller test includes evaluating artistic (or other) value.)

So a governmental employer who doesn't like pictures of sunsets can, under Pickering, fire an employee who posts them, without doing any balancing; i.e., despite the fact that the pictures of sunsets are not detrimental to the employers and the firing serves no legitimate governmental interest. If, however, Congress passes a law providing that employees can be fired for posting pictures of sunsets, it would be unconstitutional under NTEU. The Court's failure to integrate the cases is what bothers me.

Added December 8: When I said that "a governmental employer who doesn't like pictures of sunsets can, under Pickering, fire an employee who posts them, without doing any balancing," I meant, if the Court applies Pickering. I did not mean to rule out the possibility that it would apply NTEU on the ground that, unlike in Roe's case, the employer would not suffer a detriment from the employee's speech. We just don't know which line of cases the Court would choose to apply — and that's the problem.

Should you sell a porn video of yourself dressed as a librarian on eBay?

Now that I've got your attention ... the Supreme Court decided against a police officer yesterday who made pornographic videos (note: not legally obscene) and sold them on eBay.     Added: a thoughtful reader's response is here.

A new must-read blog

Unbelievable. Seventh Circuit Judge Richard Posner is starting the Becker-Posner blog, with its first real post slated for tomorrow. You may recall he's shown great (indirect) support for libraries. He proposes that copying old copyrighted works should be permitted if the copyright owner has not taken minimal steps to place copiers on notice of his interest.

Whenever I feel I have too much work and not enough hours, all I need to do is look at him and sigh.

How did library issues fare under the last Congress? What's in our future? Remarks by Mary Alice Baish, AALL

On Janurary 4th, 2005, the new Congress, the 109th, will convene. Here's a look back  at how library issues fared under the 108th Congress.

Recently, I (Raizel) attended the Chicago Association of Law Libraries November meeting and advocacy training. The speaker was Mary Alice Baish, American Association of Law Libraries (AALL) Associate Washington Affairs Representative, talking on "The 108th Congress Draws to an End: the Good, the Bad, and the Ugly." She has generously allowed me to post her talk, allowing a better understanding of the goals of AALL and the inner workings of Congress.  A pdf copy is at AALL.

"... So I’d like to give you an overview of our core issues during the past two years—from the perspective of what was good, what was bad, and what was really ugly. I’m going to cover them under four broad categories:

• First, appropriations.
• Second, copyright and digital rights management.
• Third, the USA Patriot Act. 
• And fourth, access to government information. "

What should libraries tell the public after a case like this one?

Libraries are not safe places.  They aren't really any safer than the public park or any other public place.  Click the continuation for details of a lewd and lascivious act that took place at a branch library in West Sacramento, even though the 11 year old's uncle and brother were in the library.

Minow question: What is the library responsibility to the public in letting them know about such risks?  Should libraries ever post "safe place" placards ? Should libraries engage in educational efforts to show that libraries are not safe?  Will this scare patrons away?

People v. Lloyd Russell Dawkins, C045164, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2004 Cal. App. Unpub. LEXIS 10120, November 5, 2004, Filed