LibraryLaw Blog

How to negotiate with web 2.0 services for better terms of service - yes we can

I often wonder about libraries that use flickr, youtube etc. Good in so many ways, but who in the library is actually signing the contracts with these companies and negotiating the the terms?  In the old days, a new vendor contract would go through purchasing and someone with at least some familiarity with terms like "venue" and "choice of law" would ensure that the license complied with local requirements.  But now, with so many services offered for free, and the signature line turned into a mere click (with the actual terms tucked away on another page), I suspect there are a number of libraries that need to take another look and see if there are terms that can and should be negotiated.

The federal government has negotiated some terms. The Library of Congress negotiated its license with Flickr, and the Government Services Administration (GSA) has negotiated on behalf of federal government agencies for various 2.0 services. 

Now you can see some of those contracts. The Electronic Privacy Information Center is sharing nine contracts between the federal government and web 2.0 services that it obtained using Freedom of Information requests. GSA was able to get explicit obligations to comply with privacy or freedom of informmation laws with MySpace, SlideShare.net, Flickr, Vimeo.com, AddThis.com, Blip.tv, and BLIST.

The contracts with Facebook, Slideshare.net, Vimeo.com, and AddThis.com do not address the privacy obligations of social media companies.

EPIC notes that the GSA Agreement with Google actually states that, “to the extent any rules or guidelines exist prohibiting the use of persistent cookies in connection with Provider Content applies to Google, Provider expressly waives those rules or guidelines as they may apply to Google.” Some of the agreements also permit companies to track users of government web sites for advertising purposes.

When is it in the public domain?

(Posted by Peter Hirtle)

There is an interesting post over at Rich Stim's blog, Dear Rich, on whether Nuremburg Trial transcripts are in the public domain.  Stim is responsible for much of the copyright overview text available through Stanford's Fair Use web site, and his blog is a light-hearted but knowledgeable look at copyright, patent, and trademark issues. 

I was interested in this post for a number reasons.  First, early in my career while I was employed at the National Library of Medicine, I worked with its collection of transcripts and documents from the medical trials.  And I have had a very slight connection with the Cornell Law Library's project to digitize its collection of transcripts, which consists of the personal copies in the possession of William "Wild Bill" Donovan, the father of the CIA.

Most of all, I was struck by Stim's honest answer:  "The good news is that you can use the transcripts. The bad news is that we're not 100% sure why."  I agree entirely with Stim, though I might quibble over some of his analysis.  For example, he notes that the court stenographers who made the transcripts would not have a copyright in the US in their work.  He does not address, however, whether the people who testified may have had a common law copyright in their testimony.  If we assume that the speakers authorized the stenographers to "fix" their words in the transcript, that common law copyright could have been turned into a statutory copyright by the 1976 Copyright Act.  As for the  documents included in the trial material, one might assume that the copyright in most of them would have belonged either to the Nazi Party or to the German government.  While 104A(a)(2) was passed in part to make sure that Nazi publications do not receive copyright protection in the U.S., this would apply only to published items.  (And the recent lawsuit over a UK's publisher plans to reprint Nazi newspapers as part of a source material collection on World War II demonstrates that even the copyright status of published Nazi materials can be problematic.)  Stim correctly points out that the translators could have a theoretical copyright in their work product, but assumes that the translators were all government employees which would mean that their work is in the public domain.  My vague sense is that some German contractors were hired to do some of this work, and so the government might own the copyright they produced (as work for hire).  Further complicating the issue is the fact that the trials were actually conducted under the auspices of an International Military Tribunal.  Their published proceedings may actually have had copyright restored.

The bottom line is that, as in this case, it is often very difficult to establish with certainty what is the copyright status of a particular work.  Uncertainty over the copyright status has not stopped numerous publishers from reprinting the works, however, nor has it stopped the Library of Congress from digitizing and making available all 42 volumes in the Official Series.  We often want legal certainty when we think about digitization projects.  What we should be asking instead is whether what we want to do useful, and how likely it is that anyone would object.

Do you have questions (or answers) for 2d ed. of the Library's Legal Answer Book?

We're trying out a wiki for readers to put their questions/answers. Give us your input at http://libraryslegal.wetpaint.com/

Digital copyright course offered in Nov - Simmons online workshop

Digital Copyright

November 1 - 30, 2009

This four-week workshop gives students a hands-on view of copyright. Who owns the works I create? When can I use text, images and songs created by others? Learn how to determine if an item is in the public domain. If it is not, learn how to determine if the library/archive exception in copyright law allows your use. If the library/archive exception doesn't fit your need, learn how to make a good faith Fair Use evaluation. Finally, learn some tips about getting permission to use others' works.

Assignments include: registering for a copyright, creating a creative commons license for a work you've created, searching the Copyright Clearance Center (copyright.com) for permissions and designating a copyright agent with the Copyright Office.

Threaded discussions with classmates and the instructor will be the primary means of feedback.

Faculty: Mary Minow, J.D., A.M.L.S. is a Library Law consultant at librarylaw.com

NY Deaccessioning update: some good news for libraries, but maybe not for historical societies

It's been a while since I posted on the proposed legislation to regulate deaccessioning from cultural institutions in New York.  The complete meltdown of the State Senate has put that matter on hold, but in the meantime, my attention shifted to the Board of Regents.  They had issued emergency regulations last December governing deaccessioning from state-chartered museums and historical societies.  The goal was to issue permanent regulations in October, and the big question was whether those regulations would mirror some of the problematic features of the proposed legislation.

The final proposed regulations have been distributed by the Dept. of Education.  Since they are not readily available online yet, I will post the full text after the break. 

There is some good news in the regulations.  First, they apply only to museums and historical societies, not libraries and archives.  Second, they omit much of the procedural detail that would have made the proposed legislation onerous.  The list of reasons why one might want to deaccession an item from a collection seems at first glance reasonable, though I have to admit that I am not conversant with current professional best practices in this area.  I wonder, too, if this isn't an area where professional practice and the seasoned judgment of a Board of Trustees might not be better than explicit regulation.  SAA's Acquisition and Appraisal Section has proposed a Working Group to investigate issues in reappraisal and deaccessioning, which suggests to me that standards in this area may be in flux and that regulations are premature.

There are two problematic issues that I see in the proposed regulations.  The first concerns how institutions can use the proceeds from the sale of deaccessioned items.  The regulations stipulate that monies received can only be used for new acquisitions or preservation, but not for operational or capital expenses.  This approach mirrors the standards of the Association of Art Museum Directors, but it has also been heavily criticized (see, for example, this essay in Art in America and the Deaccessioning Blog).  I might simply note that if the Southworth Library in Dryden, NY had been an historical society, then it would not be able to use the $3.5 million it received from the auction of a Lincoln document this spring to construct a new wing.

The second issue could be a real source of pain for small historical societies.  The regulations require that historical societies must have a written collections management policy to guide institutional decisions regarding the collection.  The policy must be filed with the state.  At a minimum, the policy must "satisfactorily" address the following subject areas:

(a)   acquisition.  The criteria and processes used for determining what items are added to the collections;
(b)  loans.  The criteria and processes used for borrowing items owned by other institutions and individuals, and for lending items from the collections;
(c)  preservation.  A statement of intent to ensure the adequate care and preservation of collections;
(d)  access.  A statement indicating intent to allow reasonable access to the collections by persons with legitimate reasons to access them; and
(e)  deaccession.   The criteria and process (including levels of permission) used for determining what items are to be removed from the collections, which shall be consistent with paragraph (7) of this subdivision, and a statement limiting the use of any funds derived therefrom in accordance with subparagraph (vii) of this paragraph.

How many institutions have written policies in all five areas?

The text of the proposed regulation follows.  Note that the full text of the regulation being amended is found here.  Public comments are due by 25 September.

The undiscussed danger to libraries in the Google Books Settlement

There is an awful lot to read and digest in the hundreds of pages in the Google Books Settlement, and librarians have been at the forefront in identifying important issues.  Jonathan Band's excellent "Guides for the Perplexed" and the recent concern with privacy issues (see also EPIC's overview of the Settlement and privacy issues) are just two of the ways that librarians are striving to make a useful product even better.

Nevertheless, I have been surprised at the lack of discussion in the library community about what I feel is one of the most problematic features of the settlement: printing fees in the Public Access Service.  The Public Access Service is the free license that every public library can receive that allows that library to access the proposed books database from one of the library's computers.  Users are allowed to view the entire text of the book (unlike the Consumer Purchase model, which only allows you to see up to 20% of the book without paying), but they are not allowed to download the book.  Users can, however, print out pages from the book.

Here is the kicker: if the library charges a fee for printing (and how many libraries can allow users to print for free?), then they are required by Section 4.8(a)(ii) of the Agreement to charge users for the printing.  Google will collect the money on behalf of libraries and pass it on to the Registry.  Google has agreed to pay the cost of the printing for the first five years or $3 million, whichever comes first.

It is standard practice in many libraries to charge for the cost of paper and toner associated with printing from networked resources.  I cannot think of a single licensed resource, however, that also wants libraries to pay a use fee for that printing.  It is the equivalent of not only having users pay for costs of photocopying, but also having to send a royalty check to the Copyright Clearance Center for every page they print.  And note that there is no provision for fair use in this requirement - printing even one page will result in the payment of a royalty to the Books Rights Registry.

The privacy implications of this requirement are tremendous as well.  Google could require users to provide identification and a credit card to pay for the printing, with obvious implications for reading anonymously.  But if they were going to do this, the feature could have been implemented as part of the Consumer Purchase model; there would be no reason to limit it to Public Access Service subscriptions.  So that means that somehow the libraries are going to have be involved, tracking the amount of printing that is done by users, capturing payments, and passing the money along to Google to give to the Registry.

Section 4.8(a)(ii) marks a radical change in the relationship between libraries and rights holders.  Thanks to Section 108 of the Copyright Act, libraries are not responsible for royalties that may be required as a product of patron copying.  As long as the library posts the proper notices and has no knowledge that violations are occurring, it also has no liability for potentially infringing acts by users.  The Google Books Settlement overturns almost 75 years of law and practice and makes the library (or possibly Google, if it acts as an agent for the library) an active monitor of what its patrons choose to reproduce.  And if the Books Rights Registry can demand this, other vendors will start requiring it as well.  I imagine that in 10 years, every license agreement that libraries sign will stipulate a royalty for user printing, and mandatory licenses for photocopying may not be far behind.

Privacy, anti-trust, and orphan works are important issues.  But am I wrong in thinking that this innocuous-sounding little clause in the middle of the Agreement may do more to change the way libraries operate than other element of the Settlement?

Stanford Fair Use site updates

Take a look at the Stanford Fair Use site http://fairuse.Stanford.edu

It has new twitter feeds, new content and updated feeds that you can subscribe to..

Subscribe to LibraryLaw podcasts via iTunes

You can listen to Barbara Bernstein's interview about the Pico case now on iTunes.
http://itunes.apple.com/WebObjects/MZStore.woa/wa/viewPodcast?id=327113139

You can subscribe to our feed as well.  Just go to iTunes and search on "LibraryLaw"

Thanks, James, for setting that up!

Interview with Barbara Bernstein on the Pico case - Supreme Court and school library censorship

I had the good fortune to interview Barbara Bernstein last week (Aug. 5) about her role in the landmark Island Trees Sch. Bd. v Pico case, the school library book removal case that went to the Supreme Court.  Barbara was the executive director of the Nassau County Chapter of the NYCLU, and responded to the call for help from the school librarian. Lively, informative, and definitely worth listening to.  19 minutes. 

Interview with BarbaraBerstein_PicoSchoolLibraryBookRemoval mp3

Special thanks to Donald Parker, Long Island Coalition Against Censorship for the introduction to Barbara, and to my husband for all the technical work.

The Oyez project has a terrific page on the case, including audio of the oral arguments: http://www.oyez.org/cases/1980-1989/1981/1981_80_2043

Libraries and the First Amendment - two exhibits for your library

(1) The Long Island Coalition Against Censorship is offering a new edition of its exhibit,  “Censorship in Schools and Libraries" for your library for Banned Books Week - the last week in September.

The 2009 edition of the exhibit covers 150 years of censorship with 32 illustrations/text. Challenged books include Adventures of Huckleberry Finn, In the Night Kitchen, The Catcher in the Rye, and the novels of Judy Blume and Chris Crutcher. The censorship of Susan Patron’s novel, The Higher Power of Lucky, which was awarded the Newbery Prize, is in the new edition. A significant addition is the censorship of Vamos a Cuba in Miami.  Excerpts from the exhibit are at www.the-licac.org. You may order the exhibit by e-mail or sending a purchase order to the LI Coalition Against Censorship, PO Box 296, Port Washington, N.Y.11050. The cost of the exhibit including mailing charges is $40.00.

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(2) This past month, the McCormick Freedom Museum in Chicago debuted a brand new exhibit Libraries and the First Amendment. It explores the many ways that libraries are both bastions and battlegrounds of First Amendment freedoms. It offers a virtual exhibit at www.FreedomInLibraries.org that features case studies, interactives, and comment boards. The second is a versatile poster show that transforms any public library into an exhibition space. The exhibit is offered as a free service to any library.