Q65 If patrons are using my library’s computers to copy material illegally, can my library be on the hook?
It is possible. If the library facilitates the copying, has the right and ability to control the copying, and gets a financial benefit such as charging for use of the equipment, it can be sued under the legal doctrine of “vicarious infringement.” The library need not have known about the infringement.
Another legal claim, though less likely in the library environment, is “con- tributory infringement.”156 To be contributorily liable, the library must have known (or had reason to know) of the infringing act, and induced, caused, or contributed to the act of infringement.
Q66 Our library does not get any financial benefit when patrons infringe. Can we still be “vicariously liable”?
The argument that you get no financial benefit will help if you go to court.
On the other hand, the copyright owner will try to argue that the library is getting some financial benefit—perhaps a need to buy fewer copies of a CD-ROM, or a less extensive performance license. Even if the library argues that it would not buy more copies, or that the source is a free Internet resource, a financial benefit can result when material “acts as a draw” for customers, as demonstrated in the recent Napster decision.157 If the infringing activity brings in more patrons and the library’s increased user base helps it get increased funding, a copyright owner could argue that the library is getting a financial benefit. A more direct link could be
shown if the library charges beyond cost recovery for access to equipment such as Internet workstations or CD burners, or for use of performance or display space.
Q67 Patrons have used our photocopiers for many, many years.
We even get some direct financial revenue from this. Yet we’ve never been sued for “liability” or contributing to copyright infringement.
You are right to notice that the underlying issue (library liability for patron copying) is exactly the same as when patrons use library photocopiers.
However, the American Library Association lobbied successfully for a spe- cific copyright provision that protects libraries when patrons use photo- copiers or any other reproducing equipment. Section 108(f)(1) exempts a library from liability for the unsupervised use of “reproducing equipment located on its premises” provided that the equipment displays a notice that the making of a copy may be subject to the copyright law.158 You may notice that the law does not specifically say “photocopiers only.” This pro- vision logically protects libraries for other types of equipment, but it has not been tested for equipment such as computers or scanners. Moreover, there are other activities that a patron might engage in and that the library might illegally assist in beyond the use of reproducing equipment via 108(f)(1), such as unlawful displays or performances of copyrighted materials.
Q68 Can a library be liable when its patrons use its equipment to infringe copyright?
Chapter 2, “Designing the Library Web Page,” discusses the relevant con- cepts of vicarious and contributory liability. Most libraries have had pho- tocopy machines and are familiar with the recommended notice to be posted by those machines:
The law does not specify the exact wording. Many libraries use the notice depicted here.
NOTICE: THE COPYRIGHT LAW OF THE UNITED STATES (TITLE 17 U.S.
CODE) GOVERNS THE MAKING OF PHOTOCOPIES OR OTHER REPRO- DUCTIONS OF COPYRIGHTED MATERIAL. THE PERSON USING THIS EQUIPMENT IS LIABLE FOR ANY INFRINGEMENT.
Q69 What if the library makes the copy at the request of a patron, as in interlibrary loan, or in response to a faxed or e-mailed request?
The law requires that a specific notice be posted at the place the orders are accepted. It must say:159
The displayed warning must be printed on heavy paper or other durable material. It must have at least an 18-point typeface. The sign must be dis- played prominently, in such a manner and location as to be clearly visible, legible, and comprehensible to a casual observer within the immediate vicinity of the place where orders are accepted.160
Q70 If we make the copies, it is usually because we got the request by fax or e-mail. Our patrons are not going to see this notice!
Technically, if you display the notice where the orders are received, you are in compliance with the law. To comply with the spirit of the law, it is recommended that you routinely send the notice as a part of your e-mail or fax reply. The law also requires that the library put the work’s own copyright statement (e.g., “Copyright © 2003 Mary Minow”) on the copy. This statement is typically found at the beginning or end of a work.
If and only if no copyright statement for the actual work can be found, the library may substitute a statement that the work may be protected by copyright.161 Libraries often use a rubber stamp, “Warning! This work may be protected by copyright,” for this purpose.
NOTICE: WARNING CONCERNING COPYRIGHT RESTRICTIONS
The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material.
Under certain conditions specified in the law, libraries and archives are autho- rized to furnish a photocopy or other reproduction. One of these specific condi- tions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,”
that user may be liable for copyright infringement.
This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.
Q71 Should I put up the same notice next to my computers or computer printers where patrons make copies?
Yes. Post the notice not only by your photocopiers, but also next to any
“reproducing equipment” that can print or make copies of digital mate- rial. You should also put the notice on the website or other portal screens that patrons use to access copyrighted material.
Q72 Will the notice protect me if patrons make copies of digital material that the library leases from a vendor?
No. Bear in mind any contractual obligations that your library (or its parent institution, or consortium) signed in order to get the digital infor- mation. The relationship between contract law and copyright law is com- plicated and not completely settled.162It is best to ensure that your licens- ing agreements are written with the library patrons’ needs in mind, including provisions for fair use. For an excellent source on negotiating license agreements that are geared for library patrons, see Yale University’s Liblicense website. It gives sample contract clauses beneficial to libraries, an excellent glossary of contract terms, and other useful tips.163
Q73 I don’t need to worry about library patrons making illegal copies off our Internet-access computers, when everything on the Internet is free anyway, right?
The bad news is that the Internet is not always as free as it seems. For example, if pirated content (music or movies, for example) is posted on the Internet, patrons who copy that material can be infringing copyright.
The good news is that you may be protected by a new provision in the copyright law, known as the “online service provider” provisions of the Digital Millennium Copyright Act.164
Q74 Is my library covered under the “online service provider”
(OSP) provisions?
If your library offers Internet access to the public, it is considered an
“online service provider” with regard to copyright law. This is because it provides connections for digital online communications for users, to mate- rial of the users’ choosing, without modifying the content sent or received.
The term “online service provider” thus refers to a provider of online ser- vices or network access or an operator of facilities for the provision of these services.165For further treatment of these issues, see Jay Dratler Jr.,
Cyberlaw: Intellectual Property in the Digital Millennium; and Tomas Lipinski, “Legal Issues in Web-Based Distance Education,” in Handbook of American Distance Education,edited by Michael G. Moore.166 Q75 What protection does my library get under the OSP
provisions?
It depends on what copying activities your library computers are involved with. Note that the OSP provisions will protect the library from liability for acts of its patrons, but notacts by library employees. Once the library qualifies for protection under section 512, any liability it has is limited to injunctive relief, with no monetary damages of any kind. The law distin- guishes between four different functions that library computers are involved with when electronic copies are made:
(1) Transitory copies (2) Cached copies
(3) Information residing on library computers at the direction of users (4) Information location tools such as links or online directories The law automatically protects your library for the “transitory” and
“cached” copies it makes, under the conditions set forth below. The law canprotect your library for “information residing on systems” (posted by others) and “information location tools” (i.e., linking) if the library desig- nates an agent and then follows the procedures specified in section 512(g).167
The first two categories refer to transmissions that occur automatically.
1.Transitory copies.Transitory copies are made automatically in the operation of a network, where the library computers act merely as a conduit. The library is not liable for copies made in transient transmis- sions as long as the library does not (1) initiate the transmission, (2) facil- itate the transmission by any other than automatic means, (3) select the recipients of the materials by any other than automatic means, (4) make copies of the materials for any longer than ordinarily necessary to trans- mit the materials to the user, or (5) modify the materials transmitted.168
2. Cached copies.Computers can be set to cache copies of materials in order to save bandwidth and reduce waiting time on subsequent requests for the same material. The library is not liable for cached copies if (1) the library doesn’t itself make the material available, (2) the patron transmits the copy to a third party, and (3) the materials are stored only by automatic means. The following conditions must be met: the library (a)
must not modify the materials, (b) must comply with general industry standards with regards to refreshing, reloading, or updating material, (c) must not interfere with technology associated with the material that returns
“hit” information to the party that posted the material, (d) must not inter- fere with passwords or fee requirements, and (e) must expeditiously remove or disable access upon notification of claimed infringement.169
The third and fourth categories do not involve “automatic” copying by computers, and libraries have an increased chance of being liable.
However, if the library designates an agent (required for posting situa- tions, recommended for others) and follows procedures outlined in section 512 of the Copyright Act (see below), it can greatly limit its liability to at most injunctive relief alone.
3. Information residing on library computers at the direction of users.
The library is not liable if storage of information on library computers is done at the direction of patrons if the library (1) does not have knowledge that the material is infringing, (2) does not receive a financial benefit from the infringing activity, if the library has the right and ability to control the activity, and (3) upon notification of claimed infringement responds expe- ditiously to remove or disable access to the material.
The library must designate an agent to receive notifications of claimed infringements.
4. Information location tools such as links or online directories.What if the library puts a link on its home page to a site filled with pirated music or videos? The library is not liable if it (1) does not have knowledge that the material is infringing, (2) does not receive a financial benefit directly from the infringing activity, if the library has the right and ability to control the activity, and (3) upon notification of claimed infringement, responds expeditiously to remove or disable access to the material.170
The library need not designate an agent to receive notifications of claimed infringements, but it is recommended to do so.
Q76 How does a library “designate an agent” to receive notifica- tions of claimed infringements, as required for the last two categories, “information residing on library computers” and
“information location tools”?
The Copyright Office website explains how to designate an agent.171 There is a $20 fee. Although you are not required to use a specific form, the site gives a suggested format for providing the required information:
name, address, telephone number, and e-mail of agent, as well as name
and address of the library.172 To check to see if your library (or its parent institution) has designated an agent, you can check the Copyright Office’s website, which lists all agents.173You must also post the agent’s informa- tion on your own website. An example of this can be seen at the Contra Costa County Library website.174
Q77 If I designate an agent, am I “inviting” copyright owners to go after my library?
Probably not. The person who signs the notification of claimed infringe- ment is subject to the penalty of perjury. The law states that the copyright owner’s notice to the library must be in writing, directed to the designated agent, and include the following:
(1) A physical or electronic signature of a person authorized to act on behalf of the copyright owner
(2) Identification of the work that is allegedly infringed
(3) Identification of the material that is to be removed (or access dis- abled)
(4) Contact information of the complaining party
(5) A statement that the above information is accurate, under penalty of perjury175
Failure to comply substantially with these requirements means the notifi- cation will not be valid.
Q78 If I get a legal claim that meets these requirements, what must I do?
To gain protection under this provision of the Copyright Act, you must promptly remove or block access to the item(s) in the notice. In addition, one court has ruled that the notice a copyright owner sends need not be
“perfect” before your responsibility to act on it is triggered.176 Q79 I see that the Copyright Act has procedures for counter-
notification by a party who thinks that the “take down”
was wrongly done. How does this apply to my library?
This provision applies mainly to mainstream Internet service providers, who may be taking down documents posted by subscribers.177 The sub- scribers then have an opportunity to respond. It is not as likely to apply to libraries, especially outside of a school or university setting. Libraries
could possibly take down material that a patron stored on a library com- puter (an act that was probably not consistent with library policy, whether or not the document was infringing). Alternatively, a library could take down a link or directory that the library itself posted, again not a likely source for an outside complaint. Nevertheless, if there is a “counter- notice” to the library to “put back” the material because the patron says that it is not infringing copyright, the library must “put back” the mate- rial within ten business days, unless the matter is referred to court.
For further information, see section 512(g)178 of the Copyright Act, or read a helpful legal memo by Arnold Lutzker, written for the Associa- tion of Research Libraries.179
Q80 Doesn’t it invade the privacy of our patrons if the library is checking to see what copies they are making?
The Copyright Act explicitly states that the library is not required to monitor its service or access material in violation of law (such as the Electronic Communications Privacy Act) in order to be eligible for liabil- ity limitations.180
Q81 What happens if my library designates an agent and then decides not to take down a link or follow through on the rest of the procedures?
That is your library’s choice. You may prefer to handle the claim in another way. The OSP provision merely provides you certain protections if you wish to seek them. As always, seek legal counsel in handling any legal claim.