LibraryLaw Blog

Urban copyright legends

Short and to the point, a new article by Brandon Butler in the ARL/CNI/SPARC's Research Library Issues  http://arl.tizrapublisher.com/rli270/17 explodes "Urban Copyright Legends."  

Is Fair Use always a high burden for the education community to defend?  If a license is available, does that automatically negate Fair Use?  If your university is relying on the Teach Act, does that trump Fair Use?  (I'm horrified, by the way, that some think it does). 

I like it that this article is readable, yet cites case law and other authoritative sources. That's always a trick --  to make copyright reading understandable yet not oversimplified beyond recognition.

Butler does it exceedingly well. In a sense, he creates a starter SNOPES for copyright legends that he says he sometimes wishes for.

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This post is cross-posted from the Fairly Used blog at Stanford

New Jersey ACLU open records requests show book removal decisions history

The New Jersey ACLU filed an open records request and uncovered some email documents at libraries that have removed Revolutionary Voices from their shelves.

An active censorship campaign is underway in New Jersey, to remove a book entitled Revolutionary Voices, edited by Amy Sonnie, an anthology of literature and art recommended by GLSEN, the Gay, Lesbian, and Straight Educational Alliance. A conservative group told the Philadelphia Inquirer l that the book, which contains some sexually explicit material, is "pervasively vulgar, obscene, and inappropriate.”

The book has been removed from two libraries. The Rancocas Valley Regional High School received a formal challenge, convened a review committee pursuant to its established policies, and voted to take the book off its shelves.  The challenge at the high school attracted international attention. http://www.torontosun.com/news/world/2010/05/10/13897071.html, and the local chapter of the ACLU investigated.

The ACLU found that a public library had also received an informal complaint from the same individual, that staff recommended removal, and that the library commission also voted to remove the title. In contrast, the library did not appear to follow its own policies for handling challenges of controversial materials. The open records documents (see below) show that the reasoning for taking the book off the shelves is because it is "child pornography."

The ACLU has asked other regional libraries whether they have similarly removed the volume from their collections and, if so, whether they followed their deselection policies. A second school library is missing the title, and at present is not replacing it.

The take-home message for libraries, especially public institutions, is that book removal policies are immensely important. Libraries can protect themselves against exposure to lawsuits, if they adopt procedures for handling challenges http://www.ala.org/ala/issuesadvocacy/banned/challengeslibrarymaterials/copingwithchallenges/conductingchallenge/index.cfm and for "weeding," -- and then exercise care to follow those procedures carefully.

Thank you to ACLU-NJ for Open Records documents.

OPEN RECORDS REQUEST DOCUMENTS:

Press coverage of School #1 and background including LibraryLaw interview with author

Public Library emails - removal of book

Public Library Controversial Materials policy 

School #2 correspondence - missing copy

Free Speech Wins - Newton Minow on Second Circuit ruling against the FCC "fleeting expletives" rule

Quick interview with Newton Minow, who joined an amicus brief on behalf of the broadcasters against the FCC. Minow is a former chair of the FCC.

Mary Minow:   What inspired you to join the brief in the case of Fox Television et al v. Federal Communications Commission?

Newton Minow:  Henry Geller, who is an expert in these matters and who served at the FCC as General Counsel when I was there, called my attention to this case. I respect his judgment and I studied it. I concluded that the FCC went too far. When it made a rule against fleeting expletives, that is, spontaneous unrehearsed live statements, I thought they’d gone much too far.

Mary Minow: Did you have any hesitation in going against the Commission that you  chaired under President Kennedy?

Newton Minow: Yes I did. This rule was put in years ago when Michael Powell was Chair of the FCC, under George W. Bush.  For this amicus, a group of former FCC commissioners and staff joined together. We were Democrats, Republicans, a diverse group. All had the interest in changing this law. We said at the beginning of the brief that we all had different views, but on this one subject we all agreed.  I, myself, was particularly offended with the FCC fined a PBS station for a respected drama, for what it considered bad language. ["The Blues: Godfathers and Sons," a documentary by filmmaker Martin Scorsese that contained profanity.]

Mary Minow: You are a crusader for decency in television when it comes to children. [Abandoned in the Wasteland: Children, Television and the First Amendment, coauthored with Craig LaMay]

Yet you joined the side against the FCC, which was trying to shield children. How do you explain that?

Newton Minow:  I want two things. I want children to be protected, and I also want the First Amendment. In balancing these two things, I thought that fleeting expletives in a live program was not something that would affect children. And besides that, advocates for children’s television, for the most part, joined us.

Mary Minow: Then what groups were in favor of the “fleeting expletives” rule?

Newton Minow:  The Parents Television Council was very much in favor of the rule. But what they were asking for was a form of censorship, which I thought was too much, even though I often agree with them. This was a matter of excess.

Mary Minow: What do you think is the next step? How do you craft a narrower rule?

Newton Minow:  [Laughs…]  I’m sure they’ll work on this now. The court said it could be constitutional if the rule was precise, but that this rule was vague and overreaching. It’s a big challenge. This is really the one place where the government has a hand in regulating a medium, but you’ve got to be very careful. This is a big challenge.

Mary Minow: Anything else you’d like to add?

Newton Minow: Yes. Another factor here is that over-the-air broadcasting is competing with cable. That gives cable an unfair advantage since it isn’t subject to the same regulations.  And I will read your blog

Mary Minow: But isn’t that an argument to regulate the medium that the government has control over?

Newton Minow: There has to be some balance.  Having one regulated and one  unregulated is really unfair. 

How a watch manufacturer could make the use of foreign manuscripts and artwork a copyright violation

(by Peter Hirtle)

One wouldn’t normally expect a lawsuit between a watch manufacturer (Omega) and a big-box retailer (COSTCO) about the scope of “gray-market” sales of manufactured goods to have much of an impact on libraries and archives, but the upcoming Supreme Court case of Costco v. Omega is the exception.  At stake are some of the core activities of libraries and archives. 

The case centers on the “first sale” doctrine in copyright law codified in Section 109: the idea that once a copyright owner has sold a work, its ability to control further distributions and uses of that work end.  In the Appeals Court decision now before the Supreme Court, the court found that works made and sold overseas did not have 109 protections.  As Kevin Smith noted in an earlier posting on the case, if 109 does not apply to books manufactured abroad, it raises the issue of whether libraries can legally lend foreign items.

The threat that the Appeals Court decision poses to traditional library lending, according to Brandon Butler of ARL, led the Library Copyright Alliance to file an amicus brief that argues that right of libraries to lend foreign material should be protected.  For similar reasons, several library associations joined the amicus brief authored by EFF and summarized here. 

Unfortunately, the excellent LCA brief by Jonathan Band doesn’t go far enough.  It is focused on library lending.  And it notes that Section 602(a)(3)(c) of the Copyright Act does allow a library to import up to 5 copies of a foreign work “for its library lending or archival purposes,” activities that would be unaffected by a decision in this case (though Band has identified a neat little technicality of concern). 

Section 109 is about more than just the lending of copyrighted materials, however.  Section 109(c) also authorizes the public display of a copyrighted work, “either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.”  In most archival repositories, foreign manuscripts are not lent to individuals, but rather they are allowed to look at them in a reading room.  Similarly, foreign art works legally acquired from individuals other than the copyright owner are publicly displayed on museum walls.  The decision of the Appeals Court that the phrase “lawfully made under this title” does not apply to foreign goods acquired from someone other than the copyright owner puts both of these practices in jeopardy.

Imagine the situation at a place like the Harry Ransom Center.  Because it acquired the Tom Stoppard Archives from Stoppard, the copyright owner, it would still be able to use Section 109 to display Stoppard’s own material from the collection.  It would not, however, be able to use Section 109 to show to users any 3rd party copyrighted material created abroad and included in the collection.   Nor would it be able to use Section 109 to put non-Stoppard-created material on exhibit.  It might find itself in a similar situation to the Irish National Library, which had to secure a special act of Parliament to exhibit physical copies of some James Joyce manuscripts (as I discuss on p. 72 of Copyright and Cultural Institutions).

The situation for archives isn’t entirely dire if the decision is upheld.  A repository could still develop a fair use rationale for the public use of foreign manuscripts.  Alternatively, if the LCA’s request that library lending be acknowledged in a decision is accepted, an archives could argue that it is “lending” a manuscript to a patron in a reading room, even if the work is not allowed to leave the room.  It would be much harder, however, for a library or museum to argue that public exhibition is a fair use.  We might not be able to display publicly foreign works without the permission of the copyright owner.

Big thanks, therefore, to the library associations for speaking out on the need to have first-sale apply to items purchased abroad as well as in the U.S.  This is a case that we will all follow closely.

(Illustration: “Programme" of Arcadia from the premiere production at the National Theatre, linked from http://www.hrc.utexas.edu/ransomedition/2008/fall/stoppard.html)

C&CI Update: Student Papers and FERPA

(by Peter Hirtle)

In Section 12.9 of Copyright & Cultural Institutions, I discuss briefly whether FERPA, the Family Educational Rights and Privacy Act of 1974, governs the digitization of student papers and theses.  I concluded “In order to digitize and distribute papers from its students, therefore, the cultural heritage institution will need to secure the student’s permission.”

A much more thorough discussion of the issue was recently published in D-Lib Magazine.  In “FERPA and Student Work: Considerations for Electronic Theses and Dissertations,” Marisa Ramirez and Gail McMillan share several campus approaches to FERPA and electronic student work.  I was particularly pleased to learn about a 1993 opinion from the FERPA office that suggested that if the normal practice at a school was to make student papers available through the library, no change in practice was required (so long as students were made aware of this policy).  Some of the examples given in the article of how to notify students that their papers will be available online are also very useful. 

This article will be required reading for anyone who wishes to digitize student work.

Happy Belated Birthday Copyright Office!

H/T to the Library History Buff blog for noting that 8 July was the 140th birthday of the Copyright Office.  Both the centralizaiton of registrations in one office and the placement of that office in the Library of Congress have been of inestimable value to the American public.  I am already looking forward to the big sesquicentennial birthday bash in 10 years.

C&CI Update: Legal Action Against a Cultural Institution

(by Peter Hirtle)

On p. 195 of Copyright & Cultural Institutions (C&CI), I noted that “Court cases involving copyright infringement by cultural heritage institutions are rare.”  Thanks to a blog posting at Clancco.com, I am sorry to report that another has been added to the list. 

A professional photographer, Anne Pearse-Hocker, is suing a production company, Firelight Media, for copyright infringement for using three of her photographs in its documentary, We Shall Remain: Wounded Knee.  A copy of the complaint is linked from the Clancco.com posting.  She is also suing the Smithsonian Institution for copyright infringement and breach of contract because the National Museum of the American Indian made copies of the photographs for Firelight Media, seemingly in violation of the Deed of Gift that Pearse-Hocker signed when she gave the negatives to the museum.  I have secured a copy of that complaint from PACER and posted it to SCRIBD here (and below). 

It is always dangerous to draw conclusions from just one side of an argument; I am looking forward to reading the Smithsonian’s response.  Nevertheless, the document reveals the kind of misunderstandings that can result when repositories get into the permissions business. 

To me, the most troubling portion of the document is Exhibit D, the museum’s permission form, which states that “Permission is granted for the use of the following imagery, worldwide, all media rights for the life of the project.”  Firelight is then charged $150 in permission fees for the use of the three listed images.

If I was Firelight, I would assume that I was in the clear; I had worldwide rights.  What the form does not make clear is that the permission derives from the Smithsonian’s rights as the owner of the physical negatives.  Only in the small print on the back of the form, in item 7, does one learn that this permission only covers the rights the Smithsonian has (without specifying what those are), and does not encompass other rights.  But I can well imagine that a user would see “worldwide permission” and assume everything is covered.  The case is a strong reminder that when making reproductions for patrons and granting permissions, repositories need to be crystal-clear about what they are doing.  In many ways, I wish we could come up with a word other than “permissions,” which is so closely connected to copyright, when it is physical ownership that is in play.

I also wonder how much the desire to run a photo reproduction permissions business and generate some revenue may have contributed to the museum’s seemingly sloppy practice.  Regardless of how the case turns out, the legal process is going to prove to be expensive, and if the Smithsonian should lose, it could face up to $150,000 in statutory damages per image.  $50 per image in licensing revenue hardly seems worth it if the desire to generate revenue led to the mistakes that appear to have been made. 

This case should be interesting to follow – if it is not settled out of court.  

PearseHocker v US 00269