LibraryLaw Blog: October 2006

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Libraries have a chance to influence copyright law - Chicago Jan. 31

You can still submit comments online at http://www.loc.gov/section108/contact.html, but now there's a chance to talk in person with the Sect. 108 Study Group that is evaluating copyright law and libraries. Comment examples at Sect. 108 Study Group site.

http://www.loc.gov/section108/docs/SavetheDate_FINAL.pdf

Section 108 Study Group

Public Roundtable Announced for January 31, 2007, in Chicago

The Section 108 Study Group will host a public roundtable on Wednesday, January 31, 2007, in Chicago, Illinois (exact time and location to be announced). Exceptions in the Copyright Act applicable to libraries and archives will be discussed at the roundtable, specifically those pertaining to the making and distribution of copies of copyrighted works pursuant to a patron’s request. The roundtable will address issues in the four following areas:

Amendments to provisions relating to copies for users (current subsections 108(d) and (e)) to reflect changes in the way digital technology is used by both rights-holders and libraries and archives.
Other amendments to applicable section 108 provisions specifically addressing copies made for users via interlibrary loan.
Amendments to the provisions currently set out in subsection 108(i) that would permit libraries and archives to take advantage of subsections 108(d) and (e) for a broader category of works.
Amendments to section 108 requiring libraries and archives, as a condition of being able to take advantage of the exceptions, to use effective technological protection measures and limits on the provision of access to electronic materials, including via performance or display.

A Federal Register notice detailing the specific topics to be addressed and the procedures for submitting requests for participation, as well as written comments, will be published in December 2006. An advance copy of the notice will be available on the Section 108 Study Group website (www.loc.gov/section108) and the Copyright Office website (www.copyright.gov) in late November.

Background

The Section 108 Study Group was convened in April 2005 under the sponsorship of the Library of Congress’s National Digital Information Infrastructure and Preservation Program (NDIIPP) in cooperation with the U.S. Copyright Office. It is charged with examining how the exceptions and limitations applicable to libraries and archives under section 108 of the Copyright Act may need to be amended, specifically in light of the changes produced by the widespread use of digital technologies. More information on the Study Group and its work is available at www.loc.gov/section108.

October 4, 2006

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Disability access prevails over historic preservation claim at Copley Square

A federal appellate court ruled in favor of using the Boston Public Library steps for an inbound elevator that goes to the Massachusetts Bay Transportation Authority (MBTA), despite neighborhood claims that this violated historical preservation statutes. Each case of disability access v. historic preservation must be made on a case by case basis - slightly different facts could turn a case like this in a different direction.

Neighborhood Ass'n of the Back Bay, Inc. v. Fed. Transit Admin., No. 06-1029, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, 463 F.3d 50; 2006 U.S. App. LEXIS 23394, September 14, 2006

The facts and reasoning are below:

Continue reading "Disability access prevails over historic preservation claim at Copley Square" »

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Subpoena for ConfidentiaLibrary Records - A Friendly Motion to Quash

Sol M. Hirsch, Director of the Alachua County Library District in Florida, had an unusual experience challenging a subpoena for library records issued by the local State Attorney in 2005. Here is a summary written by the Assistant County Attorney Bill Harlan who worked on the case for the library. Thanks, Sol, for ensuring that the library didn't turn over records without a court order.

SUBPOENA FOR CONFIDENTIAL LIBRARY RECORDS - A FRIENDLY MOTION TO QUASH

The Alachua County Library District received a patron complaint that a Library-owned commercial videotape children's movie had been altered by the addition of pornographic video. The local State Attorney's (prosecutor) office began an investigation. No criminal charges had been filed, for lack of an identified suspect, when the Library District received a subpoena for the circulation records pertaining to the videotape. It was clear that the requested records would be critical to the investigation into who tampered with the movie.

The Library Director immediately printed the requested records to preserve them, since the Library's electronic circulation records are only maintained for 30 days. He contacted his legal advisor in the County Attorney's Office for assistance with the subpoena.

Section 257.261, Florida Statutes (2005) prohibits releasing patron registration or circulation records without a court order, with limited exceptions. The State Attorney General had issued an interpretive opinion, number 94-86 (see http://myfloridalegal.com/ago.nsf/Opinions/936FCA358E6BC1998525622100600BAF,
which is on the Attorney General's website), concluding a subpoena was normally sufficient to overcome this grant of confidentiality, since a public library in Florida, upon receiving a subpoena, could only comply with it or go to court to seek to quash the subpoena. In other words, we could not simply stand on the confidentiality statute and refuse to comply.
However, this was a prospective criminal case, so a cautious approach seemed in order considering what was at stake.

So the Director asked the legal office to obtain a court order. The Clerk of Court's office balked at our filing an unusual motion without a current case in the court, so we modified a standard motion to quash only slightly to request the court to quash the subpoena or issue a court order directing the Library Director to comply with it. The Clerk's office assigned the motion to a civil court judge available to hear it (again, no criminal case had yet been filed) and after a brief hearing, the judge issued the court order and the Director complied. The Library District's possible liability for failing to comply with confidentiality requirements was overcome without unduly delaying the important criminal investigation.

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