LibraryLaw Blog

Better not offend me with that image of Rush Limbaugh! An untenable policy against "offensive images on internet terminals" at the Hawaii State Library

Hawaii State Public Library Sytem Rules and Policies

does indeed prohibit "display of offensive images on internet terminals" ... didn't the drafters run it by a lawyer?

Disruptive behavior. Any behavior deemed disruptive by the library staff shall be prohibited at all times. If the library customer continues to display disruptive behavior after being warned by the branch library manager or designee, the customer shall be requested to leave the library until the disruptive behavior has ceased. Prohibited disruptive behavior is that which unduly interferes with another library customer’s quiet enjoyment and use of the public library. Examples are, e.g., fighting; excessive and/or loud noise; display of offensive images on internet terminals; offensive body odor. (8-201.1-13)

For a fuller context...

Update on ACLU lawsuit against Hawaii State Library over gay sites on library computer

Debra Barayuga, the Honolulu Star-Bulletin Feb 15th gives an update on Carlos Hernandez, who claims he was banned from the Hawaii State Library because he was looking at gay-related web sites. 

• A hearing is set for March 14th in front of U.S. District Judge Helen Gillmor
• Hernandez had his no-trespass order rescinded because of a "technical error"   
• However, the ACLU says the library failed to notify Hernandez
• Deputy Attorney General Girard Lau says that the plaintiffs have not established standing and cannot proceed
• Lau says the statements given by the security guards say that Hernandez was not merely accessing gay-related sites, but "screen after screen" of frontally nude adult males
• According to the briefs filed in the case, the library policies do not prohibit accessing gay-related web sites, but prohibit "disruptive behavior" that "unduly interfere" with the enjoyment and use of the library by other patrons

and  uh-oh ...

• Examples of disruptive behaviors cited in the rules are the display of "offensive images" on Internet terminals

If the last point is actually in the library policy, I think the policy is a goner.  Who decides what's offensive and to whom?  The First Amendment protects offensive speech, not just beautiful speech....and who decides what's beautiful? As Supreme Court Justice Harlan once said, "One man's vulgarity is another's lyric."

If the guards statement is proven true, then it would make more sense to look at the sites and look at state law and see if there's a "harmful to minors" act, and if so, how such material is defined, whether display is prohibited, whether the patron was displaying such material to minors (or where minors were walking by), and what the penalties are (i.e. criminal).

A Rabbi sues the University of California for defamation over ugly comments about him in an oral history at the Bancroft Library. He loses - statute of limitations ran out. Who should pay the university's attorneys' fees?

A California Appellate court's answer: The Rabbi.

Rabbi Pinchas Lipner and the Hebrew Academy of San Francisco sued the University of California for "recording, printing and maintaining, as part of its Regional Oral History Office [at the Bancroft Library], an interview with co-defendant Richard Goldman in which the latter made a number of allegedly false and defamatory statements about both appellants."

The University successfully claimed that the lawsuit was filed well past the one year statute of limitations for a California libel claim (Cal. Civ. Proc. Sec. 340(c)) . Further, since the Rabbi had not shown a probability of success on the merits, the University was awarded over $76,000 by the trial court to cover about 3/4 of its reported attorneys' fees and costs. Under California law, an anti-SLAPP motion can be made when a lawsuit is filed against you that chills your constitutional right to free speech - curtailing written or oral expression on an issue of public interest in a place open to the public.

Rabbi Lipner appealed the attorneys' fees award.  To reverse the trial court award, the state appellate court would have needed to find the trial court abused its discretion (this level of review gives a thumb on the scale to the University, the winner in the trial court). The appellate court evaluated the time the University needed to respond to the lawsuit. It looked at, among other things, the gathering of "considerable historical information" including 350 pages of documentation by the assistant director of the Bancroft Library.  The appellate court ruled for the University on February 18th.  I don't know if Rabbi Lipner will appeal the decision further.

Hebrew Academy of San Francisco v. Regents of the University of California, Court of Appeal of California, First Appellate District, Division Two, 2005 Cal. App. Unpub. LEXIS 1417 (February 18, 2005, Filed)

To read more about the defamation claims and to read this case:

Upcoming lectures on digital future from the Library of Congress on CSPAN

I've been catching the lectures on the digital future sponsored by the Library of Congress and televised on CSPAN on a hit or miss basis.  Today I noticed in the Feb. 14 Roll Call an upcoming schedule:

March 3 - Lawrence Lessig, professor at Stanford Law School, will be presenting a program entitled, "Taming the Regulation of Culture".

March 14 - Edward Ayers, Dean of the College and Graduate School of Arts and Sciences at the University of Virginia, will address implications for the creation and distribution of knowledge in today's digital environment.

The presentations can be viewed on C-SPAN from 6:30 to 8 p.m. EST. Viewers can e-mail the experts at [email protected] and have their questions answered on the air during the presentations.

See also CSPAN schedule and archive of past videos.

Copyright and copying good stuff for your library's web pages - ALA OITP Copyright webcast March 3d Noon Pacific Time

"Borrowing" Graphics or Text for Library Web Pages: Fair Play, and Fair Use

Libraries seldom have generous graphic arts budgets, and it can be hard to give your Web pages that extra sparkle. When is it OK for a library to borrow graphics and text from other Web sites? This Webcast guides you through a handy flowchart that helps you identify what is in the public domain, gives you a sense of what qualifies as "fair use," and offers sample permission forms that can be emailed to Webmasters.

Webcast: March 3, 2005 Time: Noon - 1:00 PST Sponsored by ALA-OITP Speaker: Mary Minow

Note for LibraryLaw blog readers: Basically, I talk into a studio camera, you see me in one corner of your computer screen and my powerpoint slides in the rest of the screen.  There's a chat feature, so you can type in questions for me live.  I talk for 50 minutes and then try to answer questions for about 10 minutes. The technology is pretty slick if you have a fast connection.  If you're somewhere other than the west coast, be sure to adjust for the time difference.

France, GooglePrint, and Copyright Law

The article "Quand Google défie l'Europe" (When Google challenges Europe) by Jean-Noël Jeanneney, the President of the Bibliothèque nationale de France, in the 23 January Le Monde has been getting a lot of play recently in the Western press.  (Just do a search for Jeanneney in your favorite news search engine.)  Jeanneney complains that  the Google's plans to digitize books from five libraries will necessarily reflect an Anglo-American view of the world, to the detriment of European culture and viewpoints.

Jeanneney doesn't mention it, but I find it ironic that a copyright law that was supposed to protect European works may actually end up contributing to the problem and diminishing European cultural influence.  We know that as many as 90% of the books published in the US between 1923 and 1963 are in the public domain, and in theory could be made freely available by Google.  But thanks to the Uruguay Round Agreements Act, all books published in France during this period are protected by copyright in the US, and Google wouldn't be able to make them freely available even if they wanted to.  Any national bias in the Google database is more likely to result from international treaties than from Western commercial interests.

This is just one more example of how our copyright laws may no longer be serving the public interest -and why we can hope that the Golan v. Ashcroft suit overturns this offensive law.

Are libraries thinking about the commercialization of GoogleLibrary?

"Which encyclopedia should I buy for my children?" I'll bet most librarians (and all public librarians) have fielded that question. If they were trained the way I was, the answer is to lead the patrons to encyclopedia buying guides which evaluate a number of features, to help users decide for themselves. We were taught to resist the temptation to just say "World Book."

But do libraries know what they may be heading for when turning over massive collections for digitization by a commercial player? I am still enthusiastic about the prospect of making information as accessible as possible to everyone, but we must ask the right questions in the early stages.

Marc Rotenberg, Executive Director of the Electronic Privacy Information Center,  pointed out this important concern to me: do libraries that are turning over their holdings to Google realize how sophisticated (and anti-competitive) online advertising has become? In a Feb. 18 CNet article, Stefanie Olsen writes that the newest version of Google's browser toolbar (now in beta) has a feature that automatically triggers links on web pages that have certain text -- street addresses "suddenly sprout links to Google's map service by default."

As another example, book publishers' ISBN numbers trigger links to Amazon.com. Google actually modifies the HTML of a third party's web page.

For example, I might recommend you buy The Library's Legal Answer Book             ISBN 0-8389-0828-4 from the American Library Association online store or from Powells.com (actually, please do). But if I understand correctly, if I type it like that, not linking 0-8389-0828-4 anywhere, the ISBN number would be linked for me to Amazon, at least for Google toolbar users.

Olsen reports that Marissa Mayer, Google's director of Web products, says that it is a user-elected feature, and in its full release in April, ISBN numbers might trigger links to other sites (booksellers, I suppose) for user selection. How the other sites may be chosen is not described.

Google Print is already up and running, of course, and you can search it today, and see which booksellers are linked to the titles.  Instructions on how to search Google Print are not well publicized, but you can try it here ...

Unpublished works and the public domain - talk by Elizabeth Townsend-Gard

I heard a passionate talk by Elizabeth Townsend-Gard today at Stanford Law School.  She spoke about the problems tracking down copyright status of unpublished works.  I always look at this from a librarian's perspective.  She brought in the perspective of scholars who wish to use old unpublished works, or even small excerpts to breathe life into the biographies or other works that they are currently writing. Even if the scholars are able to track down an item in a library or archive, they face practically insurmountable problems when it comes to publishing excerpts in their new works....and often they just don't.

Clearly this doesn't promote progress....

See Elizabeth's blog at http://academiccopyright.typepad.com/academiccopyright/

Orphan works - segregated trust account?

In working on my comments to the Copyright Office about orphan works, I came across two provisions in the Code of Federal Regulations dealing with "unknown copyright owners" in two contexts (1) public broadcasting and (2) digital performances.  In both, fees may be put into a segregated trust account for three years, after which copyright owners have no right to make claims.

Could something similar be set up for libraries and nonprofit agencies who want to digitize orphan works?

To read the regulations..

New Bi-Partisan Bill Introduced to Strengthen FOIA

Senator John Cornyn, a Republican from Texas, and Senator Patrick Leahy, a Democrat from Vermont introduced Senate Bill 394 on February 16, 2005. The bill’s title says it all: Openness Promotes Effectiveness in our National Government Act of 2005 (OPEN Government Act). The act, according the senator Cornyn’s press release, “ is aimed at substantially enhancing and expanding the accessibility, accountability, and openness of the federal government…The legislation is supported by groups from across the political spectrum, from ACLU to the Heritage Foundation.” 

The bill is the result of long meetings between interested parties across the political spectrum. The bill quotes FOIA’s statutory "strong presumption in favor of disclosure," but admits that the reality has not always lived up to the Act’s requirements. Senator Cornyn says that "If records can be open, they should be open. If there is a good reason to keep something closed, it is the government that should bear the burden (of proof) - not the other way around." Senator Leahy noted that "FOIA has had serious setbacks in recent years. …The bill updates "its protections to include new technologies and ... to reduce delays and encourage accessibility.

The bill’s provisions would:

• Establish a new open government impact statement, by requiring that any future Congressional attempt to create a new FOIA exemption be expressly stated within the text of the legislation
• Ensure that FOIA applies when agency recordkeeping functions are outsourced
• Impose annual reporting requirement on usage of the DHS disclosure exemption for critical infrastructure information
• Protect access to FOIA fee waivers for legitimate journalists, regardless of institutional association – including bloggers and other Internet-based journalists
• Provide reliable reporting of FOIA performance, by requiring agencies to distinguish between first person requests for personal information and other kinds of requests
• Require agencies to give people seeking documents a tracking number within 10 days and to set up telephone or Internet systems allowing them to learn the status and estimated completion date
• Impose the loss of all exemptions except national security, personal privacy, proprietary information or a ban in another law for non-responsive agencies.
• Improve personnel policies for FOIA officials to enhance agency FOIA performance
• Examine the need for FOIA awareness training for federal employees
• Determine appropriate funding levels needed to ensure agency FOIA compliance

For more information, see http://cornyn.senate.gov/FOIA/files/OPEN_Gov_Act_general_desc.pdf