LibraryLaw Blog

Great News! Orphan works examined by Copyright Office - public comment solicited - deadline March 25th

Finally, great news on the copyright front: The Copyright Office is asking for public comment on how to address the Orphan Works problem. EVERYONE who is involved in a library, archive, museum or any digitization project should weigh in on this one.

I can't tell you how many times librarians, archivists and museum folks have asked me if they can digitize their local history files, photos (no photographers listed, naturally), defunct local newspapers etc...

The copyright problems are monumental, even when virtually everyone would agree that the promotion of progress would be served by digitizing.

The Federal Register notice on orphan works asks us to help define the problems, the definitions and to offer solutions.

I’ll work with the California Associaton of Library Trustees and Commissioners to craft  comments (I’m its policy analyst) … and would appreciate input from anyone involved.  If you're interested in seeing our draft in a month or so, and possibly signing on, let me know.

Feel free to make comments here on this blog as a sounding board. And by ALL MEANS send in comments by March 25th to the Copyright Office. For the Federal Register notice...

Must the branches of government share their information with each other? No specific legal provision for inter-governmental sharing of government information: Conclusion of Congressional Research Service

According to a recently released report by the Congressional Research Service (CRS), entitled Access to Government Information in the United States:

The Constitution of the United States makes no specific allowance for any one of the co-equal branches to have access to information held by the others and contains no provision expressly establishing a procedure for, or a right of, public access to government information.

In general, interbranch disputes over access to information are political conflicts of the highest order. The federal courts, historically, have been reluctant to review and resolve such "political questions." Resolution is often reached through negotiation — reduction of the quantity of records initially sought, substitution of other information, alternative delivery mechanisms, or limitation of the number of individuals who will examine materials provided by another branch. Sometimes appeals to public opinion will pressure an information access deadlock to settlement. Congress can use its "power of the purse" to leverage its information access demands; federal courts rely upon a spirit of justice and fair play to sustain their orders for the production of information by another branch.

Americans have access to their own personal information collected by the federal government, public agency reports, federal advisory committee reports, and deliberations of agencies only via specific federal statutes. There is no Constitutional guarantee to this access.

Ironically, this CRS report is not freely available on a government site, but is hosted on the Federation of American Scientists’ CRS reports site. The Congressional Research Service produces reports at the request of members of Congress. They are some of the best research available about the legislative process. Congress cannot prevent the reports from being distributed to the public -- but there is no singular means of public access to these informative and important documents. The Law Librarian Blog and the Project on Government Oversight discuss this issue in greater detail.

For folks working to reform copyright law - don't forget to revise Sect. 504 to show who wins, who loses and who pays attorneys fees

For folks working to reform copyright law:

Read or reread Robert Kasunic's article that I referred to in this post.

We need clarification on who pays attorneys fees when libraries, archives and nonprofits are sued, but successfully make reasonable fair use arguments. On the one hand, they're given shelter under 17 USC 504(c)(2)(i) from damages even if they lose a copyright lawsuit ... if they believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107 .  On the other hand, it's not clear whether they are liable for attorneys fees.

Kasunic raised a call to action in 1993 that is just as sorely needed today (if not more so):

Congress must amend §504. An employee or agent of a nonprofit educational institution who has reasonable grounds to believe that her use of a copyrighted work was a fair use should be defined as the prevailing party in a suit for copyright infringement. This result would allow the court to award the educator reasonable attorney's fees under §505. This amendment would further the congressional intent of §504(c)(2) and provide reasonable professors and copiers with greater security when asserting their rights under §107. Additionally, such an amendment would discourage infringement actions intended to intimidate educators and educational institutions.

Robert Kasunic, Fair Use and the Educator's Right to Photocopy Copyrighted Material for Classroom Use

Internet Archive copyright decision appealed

This is the lawsuit to free old, out-of-print works that libraries and others want to digitize, but are still under an ever-lengthening copyright term. Tracking down copyright owners can be extremely difficult to impossible. In fact, the owners could be an author's heirs who have no clue that they own the copyright to, say, a 1930s church newsletter.

As Brewster Kahle, a plaintiff in the suit, posted to the archivists-talk list:

"Let's hope sanity prevails and we protect our libraries."

Source: Teleread January 21st

Deutsche Bibliothek can now break DRM for the library without breaking the law

From boingboing:

German libraries can circumvent DRM
The German library system has recieved a copyright exemption that allows it to crack the DRM on the media in its collection, "after it became obvious that copy protections would not only annoy teenage school boys, but also prohibit the library from fulling its legal mandate to collect, process and bibliographic index important German and German-language based works." This is fantastic news -- and it should be a lesson to libraries, schools, institutions that serve the disabled, archivists, and others that they needt o fight for their own exemptions. We need to riddle the ban on circumventing DRM with so many little holes that it simply deflates upon itself.  Link

Update: Martin sez, "Unfortunately, this doesn't apply to the German libraries as a whole, but only to the Deutsche Bibliothek, the German analog to the US Library of Congress."

posted to boingboing by Cory Doctorow

Who you gonna sue? More musings on the Google Library digitization project

If you were a publisher/author who hasn't give permission to google to digitize, and you find that the google library project has, in fact, digitized your copyrighted work, who would you sue? 

Scratch a lawyer and you'll likely get the standard answer: everyone involved. 

Yet if you look at liability in terms of dollars,  copyright law is much more generous to libraries and education institutions when it comes to penalties.  If the library makes a good faith fair use argument, the penalties can go down to $0, even if the library loses the case.  That would not be true for Google. 

If the library was the only actor, the case might not be brought. But here, there's a deep pocket -- Google. If the library is a co-defendant, I believe the library could be responsible for attorney fees unless that responsibility has been shifted by contract to Google. 

For a thoughtful discussion of attorney fees and fair use, see Robert Kasunic's "Fair Use and the Educator's Right to Photocopy Copyrighted Material for Classroom Use" esp the text around footnotes 28-29.

Can a good faith fair-use argument be made here? I think it can and should be made, though it will vary by the individual circumstances - what copies are being made of which items, and what happens to those copies...

The four fair use factors are: Purpose, Nature of the work, Amount, Market Impact.  See my article already linked above.

Perhaps blog readers might care to comment on how to apply these factors (and the overall purpose of promoting progress), to this project.

More info on Stanford Libraries and the Google project

The Stanford FAQ on the Google project is now up.

Thanks, Eli, for the heads up.

Judge bans man from DuPage County library computers after guilty plea to public indecency - from Crime in the Library blog

Crime in the Library's latest blog entry is about a man who pleaded guilty last week to public indecency in a library in DuPage County, IL. According to a news report (below), he must perform 50 hours of public service and is banned from library computer use and from children's sections at the library for a two year period.

Anbolyn has been blogging Crime in the Library since September, but I just found it.  The blog is filled with similar cases, plus theft, fights, employee embezzlement, vandalism etc.   It's rather depressing to read through the blog, but I'm glad Anbolyn (profile says: librarian in Arizona) is tracking this.  Knowledge is power, and the more we know about what's going on, the better we can work to prevent it.

For more on the DuPage library incident...

The Electronic Freedom Foundation has filed a FOIA Request to Find Out What We All Want to Know: Is the FBI Using section 216 of the USA PATRIOT Act to Monitor Your Web Browsing?

            The Department of Justice has refused to give the public a straight answer to the question: are you using pen register orders, which are issued on a mere showing of relevance, to capture the URLs of web pages?  Section 216 of the USA PATRIOT Act amended the pen register statutes, so that federal courts must issue a pen register order allowing real time interception of non-content information from computers, not just from telephones. The big question for the DOJ has been whether or not it considers web addresses to be content, or if it is treating URLs as if they were non-content, like a telephone number. To recover content, the government still needs a warrant, and must show probable cause. To get non-content, like a telephone number or the address information from an e-mail header, the government need only make a relevance showing, and can get the information with a pen register order. Many commentators have pointed out that knowing the URL of a web page is the same as seeing the content: plug in the URL and the whole page someone viewed pops up. The DOJ has always sidestepped a direct answer to this question, even when asked by Congress.

On January 13, 2005, the Electronic Freedom Foundation (EFF) asked the government to answer this question by turning over documentation about the use of Section 216 to recover web addresses. The FOIA request is available at the EFF web site. For further discussion of section 216 as it relates to libraries, see my article Protecting the Lady From Toledo: Post-USA PATRIOT Act Surveillance at the Library, 96 Law Libr. J. 494 (2004).

Congressional Research Service Reports sources listing in Law Librarian Blog

Law Librarian Blog is new and already quite useful - it has a post on tracking down free copies of Congressional Research Service (CRS) Reports.  CRS reports are like super-charged Cliff Notes to the issues of the day, and I think they are usually the best source on the topics they cover. Good example: CRS report RL32608 (Sept 2004) gives great info on legislation concerning library records and the Patriot Act (and related legislation).

CRS Reports are written by very smart people for Congress ... "a 739 person, $91.7 million per year nonpartisan 'think tank' that works exclusively for Members and committees of the United States Congress." Law Librarian Blog (citing Penny Hill Press).

In addition to the sources listed at Law Librarian Blog, readers may also request a CRS report from their  senator or representative. If you can get it that way, there's no charge.