We conclude with a key issue for library supporters - what are the legal limits on lobbying by Friends of the Library and others. Rapid technological change has brought new issues to the library unheard of only a short time ago.
N OTES ON I MMUNITIES
Law on Tort Claims” Limit Immunity from Government Immunity for Discretionary Positions No Immunity for Civil Rights Violations No Immunity When a Lawsuit Seeks an Injunction Workers Liability v. Decency of Communications Act: Immunity for Providing an Injunction Internet Access Case Study: Loudoun County Library Board Found Not Immune.
AND P UBLIC E MPLOYEES
The Federal Tort Claims Act provides a significant waiver of the "sovereign immunity" of the United States government. Under California law, to establish. vicarious liability” a plaintiff must demonstrate each of the following three conditions:.
LOUDOUN COUNTY LIBRARY BOARD HELD NOT IMMUNE
The Loudoun court found that section 230 provided immunity from actions for money damages, but it did not immunize the library or board from an action for injunctive relief (ie, an order to remove the blocking software from its computers). Individual library board members and library director dismissed – redundant defendants Finally, the library board argued that the lawsuit against the individual board members was redundant because the library board itself was already a party.
LIVERMORE LIBRARY HELD IMMUNE Library Immunity for Third-Party
Similarly, the suit against the library director was dismissed, as the court determined that he served only as a "deputy of the Board" and a ruling against him would not result in a change in library policy.20. It often did so by using the Constitution's Commerce Clause, i.e., the federal power to regulate commerce between states.
1 L IBRARIES AND
Q2 When is a library publication not copyrighted because it is a "work of the US government"? Q3 Does this mean that my library, which is not a federal library, can freely copy a bibliography published by a federal library?
C OPYRIGHT
Q17 If a work is unpublished, the library must assume that it is "fair use" to use it. Q65 If patrons use my library's computers to copy material illegally, my library may be on the hook.
DETERMINING IF A WORK IS COPYRIGHTED
A library publication is a "work of the United States Government" when it is prepared by an officer or employee of the United States Government as part of that person's official duties.2. It becomes more complicated if the work relates to librarianship, and a court must carefully determine the scope of the librarian's employment.
COPYRIGHT HOLDER RIGHTS
The most important exemptions that help libraries are the section 107 "fair use," the section 108 "library exemption," and the section 109 "first sale doctrine." Additionally, a library may occasionally use other exceptions listed in copyright law, such as the "copying software" provision in section 117. The definition also has an "action (broadcast or communication) clause ). If the performance or display is transmitted or communicated to a place specified by the "place clause" or "to the public, by means of any device or process, if members of the public capable of receiving the performance or display receive it at the same place or in separate places and at the same time or at different times", the library may infringe copyright. 27.
EXCEPTIONS FOR LIBRARIES AND USERS
Under the Act, these four factors are (1) the purpose and character of the use, including whether such use is commercial in nature or is for non-profit educational purposes; (2) Nature. The more work, the worse it is for the user.
DURATION OF COPYRIGHT
"It is intended to exempt from copyright liability anyone who, in a public place, merely turns on an ordinary radio or television set normally sold to members of the public for private use."146 However, a concert-sized jumbo-tron or speaker system would not be a type of the apparatus provided for in the law. 147. While a library in the latter category (over 2,000 gross square feet) could have a standard television monitor (less than fifty-five inches) receiving broadcasts for patron viewing, it could not place a monitor in every corner of the library area. .
SECTIONS 302–304
If the work is somehow published before January 1, 2003, the duration of copyright is for the life of the author plus 70 years or December 31, 2047, whichever is longer. If the work was created before 1978, but only published after December 31, 2002, then the duration is the life of the author plus 70 years.
PATRONS AND LIBRARY LIABILITY
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 notice of alleged infringement, respond promptly to remove or disable access to the material.170. The law states that the copyright owner's notice to the library must be in writing, must be addressed to the designated agent, and must include the following:.
LIABILITY AND REMEDIES
Alternatively, a library may remove a link or directory that the library itself posted, again not a likely source for an external complaint. Copyright law explicitly states that a 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 qualify for limitations of liability.180.
SECTIONS 501–504
Nevertheless, if there is a "counter-notice" to the library to "return the material" because the borrower says it does not infringe the copyright, the library must "return" the material within ten business days, unless the case is brought to court. If a library made five copies of a book beyond fair use, the loss (damage) to the copyright holder would represent the price of five copies, that is, the lost sales from the five copied photocopies.
APPENDIX
The agreement reached became part of the legislative history of the Copyright Revision Act of 1976. Copyright Office, DMCA: Section 104 Report (A Report of the Register of Copyrights Pursuant to Section 104 of the Digital Millennium Copyright Act at http ://www. .copyright.gov/reports/studies/dmca/dmca_study.html.
2 D ESIGNING THE
Q6 How will my non-profit library be treated if it engages in the practice of deep linking. Q11 When should a library be concerned with trademark law in the design of the library's web page.
L IBRARY W EB P AGE
Q38 If the webmaster is an independent contractor, the library can still be held liable for copyright infringement. Q39 If the library patrons use library equipment to create websites that infringe copyright, the library may be liable.
LINKING ON THE WORLD WIDE WEB
This is regardless of whether the link site - the library, museum, archive or educational institution - is itself a non-profit organization. The fact that the library using or "invading" the site is non-commercial or not-for-profit may also affect a court facing a legal challenge from a website owner against a deep-linking library.
TRADEMARKS
Let's suppose a library places the "faces" logo of the Public Broadcasting Service (PBS) on its website (or in its online catalog) and uses it as an incentive or logo link (clicking on the logo activates the link). An analysis of the library's situation under the nominative fair-use defense might look like this: (1) Is there another way to identify PBS videos in the library collections without using the PBS faces logo.
RIGHTS OF PRIVACY AND PUBLICITY
Under the new ICAAN (Internet Corporation for Assigned Names and Numbers) policy, the trademark owner must prove that the library acted in bad faith. If the images are part of news or opinion pieces, the library's use is more likely to be protected by the First Amendment.
COPYRIGHT AND THE LIBRARY WEBSITE
If an obscene photograph is taken at a library event (which is possibly a public event), the patron's right to object to the publication of the photograph is limited. Using a candid photo of librarians helping children to promote the library's reading program may be considered advertising, even for non-commercial purposes.
LIABILITY FOR DIRECT, CONTRIBUTORY, AND VICARIOUS INFRINGEMENT
This is the actual infringement, i.e. an exercise of the owner's exclusive rights beyond fair use. Regarding the second factor, which is the nature of the copyrighted work, the photos were highly creative and weighed against fair use.
LIABILITY FOR REPUBLICATION OF DEFAMATORY MATERIAL ON THE LIBRARY WEBSITE
It seems unlikely that a single link is a republication,104 but a link provided in the context of a website with other recommended links for users or students to refer to puts the library in the editing function that can serve as a trigger for publishers /students. liability of the republisher. It may depend on whether the library acts merely as an intermediary and provides a functional service, such as the thumbnail index in the Kelly copyright case, or whether the library edits and presents the material in such a way that it becomes its own material.
GENERAL RULES FOR LINKING ON THE WORLD WIDE WEB
Prochnow, Defense to Infringement: When the First Amendment Protects Trademark Parodies, NATIONALLAWJOURNAL, August 1998, at 1. The Chicken's attack on the Barney character in his act was a parody). For a detailed discussion of the ICAAN and the Uniform Dispute Resolution Policy, see Michael Rustad and Cyrus Daftary, E-BUSINESS LEGAL HANDBOOK.
F ILTERS AND O THER R ESTRICTIONS ON
I NTERNET A CCESS
On May 31, 2002, a federal district court struck down a provision of the Children's Internet Protection Act (CIPA) that required public libraries receiving certain federal funds to use technology that blocks or filters Internet sites that contain "child pornography." , "obscenity," or material that is "harmful to minors."1 At the time this book went to press, the case was slated to be heard by the United States. To stay up-to-date on the current status of the matter, visit the ALA Office of Intellectual Freedom's CIPA website. at http://www.ala.org/cipa.
INTERNET ACCESS RESTRICTIONS AND THE LAW
Legal definitions of child pornography, obscenity, and material "harmful to minors" are found in the appendix at the end of this chapter. Postmaster General, in which a federal statute directed the postmaster general not to deliver "Communist propaganda" without a written request from the customer.19 The requirement that citizens publicly petition the government for access to speech disadvantaged, it was found to have a "grave In Loudoun, library patrons needed not only to petition but also to seek free approval, unlike the automatic approval in Lamont. The court saw this as more formidable to the public's right to free speech than the Lamont Supreme Court case.
APPENDIX A
The Court held that in the absence of objective factors, the First Amendment barred it. Doctrinally, a Picodictum notes that the challenged books in the school library were not completely forbidden to the children, since they were available at the local public library, which had actually exhibited the books.23.
APPENDIX B
The first two prongs of the Miller test—the prurient interest and patent offensiveness—are questions of fact to be determined by a jury, applying contemporary community standards and federal or state law. COPA defines "material harmful to minors" as images or words that:. i) the average person applying contemporary community standards would find that the material as a whole and with respect to minors is designed to appeal to or is designed to support the proximate interest. ii) depicts, describes or represents in a blatantly offensive manner in relation to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or an indecent display of the genitalia or a post pubescent female breasts; and. iii) taken as a whole, lacks serious literary, artistic, political or scientific value for minors.43.
D IGITAL L IBRARY R ESOURCES AND
P ATRONS WITH
D ISABILITIES
The National Federation of the Blind recently filed a lawsuit against America Online under the Americans with Disabilities Act. Acquisition of Electronic and Information Technology under Section 508 of the Rehabilitation Act, Frequently Asked Questions, at http://www.section508.gov.
L IBRARY R ECORDS
AND P RIVACY
At this point, protection is outside the control of the library (except for the internal login identification). If the library does choose to maintain records with patron identification, disclosure of the records is subject to both state law and the library's own confidentiality policy.
UNDERSTANDING STATE LAWS THAT PROTECT PATRON PRIVACY IN LIBRARIES
This is a much broader approach, prohibiting the release of the underlying information contained in the records. Many state privacy laws allow the release of protected records with the consent of the record subject.
