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2) Expanding the Definition of ‘Justice’ in the PATRIOT Act Debates
"In the coming months the national debate about the PATRIOT Act will heat up once again..... the whole of the progressive community must take coordinated action to reverse the PATRIOT Act and reinvigorate public conversation."
View the entire blog: http://bannedlibrarian.A New Jersey jury recently found that a restaurant did not violate employee privacy or cause emotional distress by accessing an invitation-only Myspace page. The page served as a venting spot for employees. The restaurant was, however, found to be in violation of federal and New Jersey laws prohibiting accessing the information without permission. The employer asked another employee for her password, and she testified that she thought she “would have gotten in some sort of trouble” if she refused to cooperate. Shortly thereafter, the company terminated plaintiffs based on their comments on the site and involvement in creating it. Pietrylo v. Hillstone Restaurant Group.
Mr. Victor Schacter of Fenwick & West LLP writes in the Fenwick Employent Brief (Sept. 2009):
"This case highlights the challenges employers face with respect to employees’ blogs and social networking sites that contain work-related speech. While this decision does not restrict an employer’s right to monitor communications and information within its own computer networks, it demonstrates the risks of attempting to access an employee’s restricted online content without the employee’s authorization. Employers should consider implementing written policies that address employee work-related speech on social networking and other online sites to require that employees observe appropriate guidelines when referring to the company, its employees, services, and customers."I recently did an interview with the attorney, M. Kelly Tillery of Pepper Hamilton LLP, who represented J. David Spurlock and Vanguard Productions, the co-author and publisher of "Famous Monster Movie Art of Basil Gogos." The book used images of monster magazine covers in a book on the artist's career. Libraries often ask when they can use images of book covers on web pages, posters and the like, and may find Tillery's interview helpful as he discusses the court's analysis of the Fair Use factors in his case.
Tags: basil gogos, fair use, j. david spulock, m. kelly tillery, pepper hamilton, vanguard productions
Posted by Susan.
I have a new article working draft up on SSRN:
Reining in the Results: The Use of Human Indexing and Computer Algorithms in West's Headnotes & Key Numbers and LexisNexis's Headnotes & Topics as Tools for Finding Relevant Case Law,
Available at SSRN: http://ssrn.com/abstract=1473554
Here is the abstract:
Since the advent of LexisNexis headnotes and the LexisNexis classification system, the author has wondered about the different ways results are generated in West's Custom Digest and in LexisNexis's "Search by Topic or Headnote" and by KeyCite and Shepard's. There has been some anecdotal discussion about the differences, but no empirical investigation. This paper starts the investigation process: the author took ten pairs of matching headnotes from legally important federal and California cases and reviewed the cases in the results sets generated by each classification and citator system for relevance. The relevance standards for each case are included.
The paper first reviews previous full-text database testing, and the benefits and detriments of both human indexing and algorithmic indexing. Then the two very different systems are tested. Ten pairs of headnotes is too small a sample to say absolutely that results generated by system A are and always will be a certain percentage more or less relevant than system B. However, the differences in the results sets for classification systems and for citator systems do raise some interesting issues about the efficiency and comprehensiveness of any one system, and the need to adjust research strategies accordingly.
Susan
Grayson Barber, Attorney, writes:
I am writing to respond to questions about asking customers to leave the library if they appear to have symptoms of the H1N1 flu virus. Kindly allow me to express thanks to Deborah Caldwell-Stone at ALA, who provided very helpful advice.
As a public building, the library is analogous to city hall. Public officials cannot eject members of the public from city hall unless there’s a very, very good reason for doing so. Members of the public similarly cannot be asked to leave the library, without very strong justification.
The library is different from city hall, in a couple of important ways. As we learned from the case of Kreimer v. Morristown, members of the public have a First Amendment right to use the library. This means, among other things, that if we asked a coughing customer to leave, and it turned out the customer did not have swine flu, the customer could sue the library and win.
Another difference between the library and city hall is, of course, that customers don’t sit down for hours at a time in city hall to breathe on computer keyboards, and the like. But the fact remains that librarians are not doctors, and cannot diagnose H1N1. Moreover, if we started ejecting people for H1H1 symptoms, our boards might ask us to eject people for SARS. And MRSA. And conjunctivitis. This is beyond our level of expertise.
There IS one circumstance in which I believe it would be possible to ask patrons to leave, but it would be a scenario like Mexico’s last year, in which the public health authorities declared a state of emergency. Naturally, we all hope it doesn’t come to that.
That is to say, if a local public board of health declared an emergency, and closed the schools, we know that many parents would not hesitate to bring their children to the library. In such a situation, it might be prudent to ask the public health authorities to close the library as well. Again, the decision should be made by professionals who have the relevant expertise.
Meantime, the best we (and city hall) can do is to post information about H1N1 and preventive measures. Disinfectant gels and wipes can be strategically placed near computer mice and keyboards. Let’s encourage one another to get our immunizations, and to STAY HOME if we’re feeling ill. (I bet this last is the hardest for librarians.)
Bottom line: If you suspect a customer has H1N1, and you ask them to leave for that reason, you are taking a huge risk if you guess wrong. The better approach would be to encourage the customer to comply with posted guidelines for protecting himself, herself, and the community. I hope this is helpful.
...........
Editor's note: See also related discussion here.
Tags: communicable diseases, flu, h1n1, libraries, library, public places
(posted by Peter Hirtle)
Lorcan Dempsey has an interesting blog posting about new publishing ventures in libraries. He mentions in passing an article in the Economist discussing the Google Book Settlement that opens with an example of two "orphan works." One is The Appalachian frontier: America's first surge westward by John Anthony Caruso; Lorcan found three editions of this in WorldCat. The other work was Blunder out of China. There are two works with that title in WorldCat: one by Geraldine Townsend Fitch and Theodore H. White published in 1946, and one by Walter Henry Judd published by GPO in 1947.
The inclusion of these two examples as "orphan works" in the Economist article illustrates a number of interesting points. First, it shows how sloppy some people have been when they have referred to "orphan works" and the Google Book Settlement. Neither of the titles that the Economist cites could be considered to be an "orphan work." Second, it also points out that metadata problems aren't confined to Google, and how difficult it is to determine copyright status just based on electronic records. Finally it is a good example of how the Google Book Settlement is the only way that the full text of most books can be made available.
If one checks the Copyright Office's database of registrations and renewals, there is no evidence that copyright in the 1959 edition of the Caruso book was renewed in its 28th year, which puts the text clearly in the public domain. There is a copyright registration for the new matter added to the 2003 edition, and the claimant for that copyrighted matter is the University of Tennessee Press. The press can be found with relative ease, so you can't claim that the 2003 edition is an orphan work.
The Blunder out of China example is somewhat more complicated since we don't know which edition Paul Courant Duguid had in his office when he was interviewed for the article. The Economist doesn't help much. It refers to the book as a "seminal text," but I wouldn't describe a pamphlet implying that Theodore H. White was a communist as fitting that description. For copyright purposes, though, it doesn't matter which of the two books in WorldCat was digitized since they are not different works. The Judd work is an offprint of the Congressional Record of 26 July 1947, where Judd reprinted Fitch's pamphlet in its entirety. (The difference in page count between the two editions is due to the small type that the Congressional Record used for congressional "extensions of remarks.") There is only one copyrighted work: Fitch's pamphlet.
So let's look at the metadata problems. First, the WorldCat record gives Theodore H. White as an author. Authorship can be important in determining copyright status. White was not the author of the pamphlet, however, but rather the subject. The pamphlet is an attack on his book, Thunder out of China, which was published in 1946. Second, the WorldCat record gives a publication date of 1946. Publication date can be important when checking renewal records. I have not been able to confirm the date of publication of the pamphlet, but the Library of Congress record has [1947?]. Cornell's copy was received on 26 May 1947 according to a penciled notation in it, and the fact that a Congressman felt the pamphlet was important enough to include in its entirety in the Congressional Record in late July, 1947, suggests to me that the publication date was 1947, not 1946. (If someone really cared about this, they might want to check Judd's files on the republication of the work found in his papers at the Minnesota Historical Society.)
Now on to the physical book. A check of the volume shows that there is no copyright notice in the volume, which would have injected it into the public domain as soon as it was published. Furthermore, there is no registration record for the pamphlet in either 1946, 1947, or 1948, nor is there a renewal record for it, further confirming that it entered the public domain when it was published.
The one last issue would be whether copyright could have been restored. For that, we need to know where the item was published and the nationality and domicile of the author. Geraldine Fitch was, I believe, an American married to a missionary and living in China at the time the pamphlet was printed, so there is the possibility that copyright in it could have been restored. The pamphlet, though, states clearly that it was "printed in the United States," so copyright restoration is not an option. This work, too, is in the public domain.
Why does this experiment suggest that the Google Book Settlement is needed? Look at the effort it took to establish that these two works were in the public domain. The same effort would have been required to determine that the books were still protected by copyright but out of print. One would then have to make a reasonable effort to locate the copyright owner before the work could be considered to be an orphan work. (Only Brewster Kahle, as far as I can tell, believes that an out-of-print work is an orphan work.) The expense of doing this would be horrendous.
If we want to make the full-text of in-copyright but out of print books available without massively altering copyright law, there is only one cost-effective option: the settlement.
Tags: copyright, Google Book Settlement, public domain
Here's my podcast interview, recorded August 27, 2009, with Pat Tumulty, Executive Director of the New Jersey Library Association (NJLA). NJLA filed an friend-of-the-court brief in the landmark federal appellate court case that established (1) library users have a First Amendment right to receive information in a public library and (2) public libraries have the right to set reasonable patron behavior codes related to their missions.
Tags: behavior codes, first amendment, libraries, New Jersey Library Association, NJLA, Pat Tumulty, patron behavior policies, patron conduct policies, podcasts, right to receive information
(posted by Peter Hirtle)
So Google, perhaps in response to Mary Minow's post, has issued a new privacy policy for Google Books. To no one's great surprise, EFF finds it a good start but insufficient.
I would point out that Google's statement is entirely compatible with current library standards for confidentiality in licensed resources. Specifically, it begins by stating that "We do not share your personal information with third parties, except in the narrow circumstances described in the Privacy Policy, such as emergencies or in response to valid legal process." The CLIR/DLF Model License has this to say about confidentiality:
Licensor and Licensee agree to maintain the confidentiality of any data relating to the usage of the Licensed Materials by Licensee and its Authorized Users. Such data may be used solely for purposes directly related to the Licensed Materials and may only be provided to third parties in aggregate form. Raw usage data, including but not limited to information relating to the identity of specific users and/or uses, shall not be provided to any third party.
Similarly, SERU, Shared E-Resource Understanding, has this to say on confidentiality of user data:
The subscribing institution and the publisher respect the privacy of the users of the content and will not disclose or distribute personal information about the user to any third party without the user’s consent unless required to do so by law. The publisher should develop and post its privacy policy on its website.
And the International Coalition of Library Consortia's statement on "Privacy Guidelines for Electronic Resources Vendors" gives two primary requirements: that publishers do not share information with 3rd parties and that they have a published privacy policy.
The bottom line: Google is more than compliant with current library standards for 3rd-party privacy protection. EFF argues that "Given the important free expression interests at stake and the long history of protecting reader privacy by libraries and bookstores, readers need a durable guarantee of protection enforceable by a court." No library has been demanding such a guarantee before now. One has to wonder if the current criticism of Google wouldn't be better directed at libraries and their privacy requirements when working with outside vendors.
Tags: confidentiality, libraries, licenses, privacy
A lot of people have been paying attention to the pubishers' lawsuit against Georgia State's ereserve program. (Kevin Smith had an especially thoughtful post on the suit earlier this summer.) Though also featured on Stanford's Fair Use web site, a different case brought by publishers has not gathered the same attention. Blackwell Publishing v Miller, however, has some interesting elements that may have implications for libraries.
The case concerns the photocopying practices of a copy shop in Michigan. The important case of Princeton University Press v Michigan Document Services established that the commercial reproduction of articles in course packs was not a fair use, in spite of the underlying educational purpose. (It did not speak to the noncommercial reproduction of course packs.) Miller's photocopy service, Excel, found an interesting way around the MDS decision. It solicited articles and readings from faculty members (much like the reserve operations in libraries), and then loaned those readings to students who then made reproductions of the readings on Excel's self-service photocopy machines. A group of publishers brought suit against Miller and Excel in 2007.
Initially Susan Kornfield, one of lawyers who had argued extremely well in the MDS case, represented Miller and Excel. The publishers' counsel included noted copyright specialist William S. Strong, the author of a popular handbook on copyright. I was looking forward to a sophisticated battle about the limits of educational reproduction.
Unfortunately, after almost a year, Kornfield's firm dropped out of the case, apparently because of non-payment of fees by the defendant. New counsel came on board, and motions have been filed for summary judgement. A hearing is scheduled for the end of this month.
Excel asserts a number of defenses to the charges, but two in particular stand out. The first, and one on which Excel spends a lot of time, is that any copying of published articles was authorized by the licenses for electronic content purchased by the Michigan library. This argument seems like a loser to me. I know from our own experience when trying to identify library licenses that would authorize the reproduction and sale of course packs, it was difficulty to find licenses that were explicit on the point. (Nevertheless, we were able to save students $34,000 in permission fees during the first semester in which we applied library licenses to bookstore course packs.) I don't think any of the licenses would have applied to a commercial vendor. And of course course packs contain far more than is licensed by the library, including book chapters and other non-journal material.
The second argument is much more intriguing. The publishers are claiming that Excel made the copies because they gathered the material from the faculty members, owned and serviced the photocopy machines, and provided instruction on their use. The fact that it was actually the student who pushed the button is immaterial - as far as the publishers are concerned, Excel made the copies. Excel claims, naturally enough, that it was the students, and not them, who made the copies.
Copyright jurisprudence has developed a mechanism for dealing with this sort of situation. It is the doctrine of indirect copyright infringement. With indirect infringement, one does not make the infringing copies oneself, but rather induces or materially aids someone else to make copies. It has been the basis for lawsuits against entities such as Napster and Grokster that may not have reproduced copyright content themselves, but contributed to others making reproductions.
In this case, the publishers are not claiming that Excel engaged in indirect infringement, but rather direct infringement. The problem with indirect infringement is that for it to occur, someone must be directly infringing the copyrights. In the case of Miller, it is not clear that the faculty members, who provide the course packs to Excel, or the students, who actually make the copies, are infringing copyright. Their use could be excused as a fair use (and some of the officials from the publishes who were deposed in the case may have indicated that student copying might be a fair use). If there is no direct infringement by the students, then there can be no contributory infringement by Excel. The publishers, therefore, have to argue that it is Excel that is making the reproductions, even though they it is not the one that pushes the "start" button. In effect, the students are unpaid employees of the copy shop, rather than individuals exercising their fair use rights.
The case is interesting to me because it highlights competing visions of educational reproduction. To the publishers, copy shops and library reserve operations are publishers. If someone wanted to compile and sell an anthology of readings, we would expect them to secure permission from the copyright owners to do this. This seems to be the way that publishers view us - as manufacturers and distributors of anthologies. Libraries, however, do not see themselves as publishers, but rather as just facilitating the reproductions that are authorized under the law. If it is ok for a student to have a copy of an article under fair use, then it really doesn't matter if the library helped some other student get a copy of that same article last year or even last semester.
There are important issues at play in this case. I hope that the disparity in the resources that the two parties can bring to bear on the matter doesn't lead to a poor judicial decision.
Tags: copyright, course packs
The Electronic Privacy Information Center (EPIC) is promoting the Privacy Coalition campaign to get the public to weigh in on the Obama Administration's work on privacy. Cast your vote on its privacy report card.
It's short, fun, and because you're actively engaged in voting, you're more likely to read the quick summaries of Obama's progress (or lack thereof) on key privacy issues.
Cast your vote and get instant feedback.
Tags: electronic privacy information center, epic, obama, privacy, privacy coalition, report card