RAQs: Recently Asked Questions

Topic: Does repurposing a book affect copyright? - 4/5/2019
Our library is always seeking ways to promote literacy, exercise, and park visits with community p...
Posted: Friday, April 5, 2019 Permalink

MEMBER QUESTION

Our library is always seeking ways to promote literacy, exercise, and park visits with community partners. One proposal we received was to take some books apart, laminate the separate pages, and mount them on display posts throughout a park, creating a moving, learning experience. 

I have a copyright concern. Can we “dismember” the books and laminate the pages and still respect the books’ copyright?

 

WNYLRC ATTORNEY'S RESPONSE

A “Path Through Learning!”  This sounds like a really cool idea. 

The member is right, though: to put this cool idea into effect as described, a library would need the permission of the copyright holder.

It’s hard to believe, but liability is just a rip and a lamination away.

Why is that? 

Although the “first sale” doctrine allows the purchaser of a book to resell and display the book—and even to make creative book arrangements in display cases and front windows--it is not a defense to cutting images from the book and re-mounting or laminating them. 

This is because courts have found that re-mounting or laminating covers or pages torn from a magazine or book creates a “derivative work” that is an infringement of copyright. [1]

“Derivative works,” are works that incorporate, “recast, transform, or adapt” part or all of a “pre-existing work,” without meeting the element of a “fair use” defense, or transforming what they’ve borrowed to the point where the original can’t be discerned.

Of course, an essential element of a derivative work is the “pre-existing work…” meaning, the work in its recognizable and copyright-protected form.  If I pulped my comic book collection and made a piñata out of it, that would not be a derivative work[2].  But sequels, adaptations, companion materials, and, yes, laminations, can run afoul of this right held by a copyright holder.

How do sellers of mounted, and perhaps laminated baseball cards do what they do?  Since nothing has been ripped or separated, there is insufficient “transformation” to make it a derivative work.[3]

So where does that leave the “Path Through Learning” concept?  Although it would have an educational purpose, based on the case law I found, a copyright owner could have a viable claim for an unauthorized “derivative work” being used to illustrate the path.  Further, unless there was some intrinsic commentary or criticism of the works selected, a fair use defense would be weak to non-existent. So as proposed, it is risky indeed, and the member is right to be concerned.

The good news is that I have two solutions.

First, based on the case law, protecting (via lamination, display box, treasure chest, etc.) and displaying entire copies of the books, with the pages open to a certain spot, could be an allowable display.  Just make sure they aren’t being marked or altered.

Second (and probably best): ask for permission.  The “Path Through Learning”[4] is a charming idea. I bet many authors and publishers would be delighted to give permission.  After all, you’re promoting their book!  Simply reach out, describe the project, and ask the rights holder if you can create the separately laminated pages for it.  It can’t hurt to ask, and they might say yes.  Of course, when they do, get the permission confirmed in writing.

Thank you for this interesting question.

 



[1] Rosebud Entertainment, LLC v. Prof’l Laminating LLC, (U.S. District Court for the District of Maryland, Norther Division, 958 F. Supp. 2d 600 (magazines), and Mirage Editions, Inc. v. Albuquerque A.R.T. Co. (books).

[2] I winced just typing that!  I love my comic book collection.

[3] Allison v. Vintage Sports Plaques, 136 F. 3d 1443 (11th Circuit, 1998)

[4] I am sure the member has come up with a better name for this.

Tags: Copyright, First Sale Doctrine, Derivative Works, Photocopies

Topic: Digital Controlled Lending - 2/4/2019
I have been reading the legal arguments undergirding the Controlled Digital Lending initiative (co...
Posted: Monday, February 4, 2019 Permalink

MEMBER QUESTION

I have been reading the legal arguments undergirding the Controlled Digital Lending initiative (controlleddigitallending.org). The legal arguments are outlined in the white paper here: https://controlleddigitallending.org/whitepaper.

Our library has a DVD collection that has been heavily used over the years for teaching, research, and recreational use. Circulation of that collection has been restricted to members of our campus. There are fewer and fewer DVD players available on campus now and so we are facing significant sunk costs with a collection that may become unusable. Hence, I am wondering whether we could reformat DVDs that we have purchased over the years, put those physical copies in a dark archive (i.e., no longer circulating), and stream the digitized copies one user at a time to verified members of our campus (current students, staff, and faculty). Would the doctrines of 1st sale and Fair Use apply, given that there would be a one-to-one relationship between the physical copy purchased and digital copy loaned, as well as noncommercial use?

WNYLRC ATTORNEY'S RESPONSE

This is a great and important question, and it rests on an critical issue. 

With that in mind, before you delve into this answer, I encourage readers of “Ask the Lawyer!” to check out the CDL “Statement” on www.controlleddigitallending.org/statement.

[Small break.]

Okay.  Did you check it out? Interesting, right?  Now, on to the answer….

Controlled Digital Lending (“CDL” ) is an effort to assert the rights of content users—as opposed to those of content owners—in the next regime of copyright law. 

As described in the CDL “Statement”:

CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner. Under this approach, a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation. For example, if a library owns three copies of a title and digitizes one copy, it may use CDL to circulate one digital copy and two print, or three digital copies, or two digital copies and one print; in all cases, it could only circulate the same number of copies that it owned before digitization.[1]

Rallying librarians from an impressive array of institutions[2], CDL asserts an extension of current copyright doctrines and seeks to confirm rights critical to the world of information management. 

But although it is a hybrid argument of Fair Use and the First Sale Doctrine, CDL is not the law.  Rather, it is a concerted effort to influence—and perhaps become—the law. 

As I see it, CDL is also a deliberate and potentially powerful answer to the established trend of content providers using contract law to impose limitations on copyright’s “First Sale” doctrine.  Here are some examples of this trend:

  • Terms for an “instructor’s copy” from an academic publisher barring re-sale or requiring the book be listed in the syllabus;
  • A license for a DVD’s “downloadable copies,” requiring a user to verify that the are the owner of the original hard copy; 
  • Textbooks that come with access codes for additional, but essential, digital content.

Because of the billions of dollars in revenue such contracts protect, the entertainment, publishing, and other IP industries will fight tooth and nail to not only resist CDL, but any extension of Fair Use and the First Sale doctrine.  Considering the lobbying power and commercial heft of these industries, the CDL position will need all the recruits and allies it can get.  It will be a showdown fought through usage, lawmaking, and most likely, law suits.

The CDL’s organizers know this might be hazardous combat.  Right in their “Statement” is the caution:

Because the following analysis is general, any library considering implementing controlled digital lending should consult a competent attorney to develop an appropriate program responsive to the specific needs of the institution and community.

This warning in the Statement is well-justified.  The stakes for generating infringing copies (which is what copyright owners will argue CDL digital copies are) and distributing them (which is what copyright owners will argue CDL-using libraries are doing) can be high, with the violator liable for damages and attorney’s fees, and stuck in a courtroom battle for years.

So what would a “competent attorney” advise their client to do in this case?  I don’t speak for all competent attorneys, but in a case like this, I would strongly advise an institution NOT to make “CDL” copies unless the action was part of a highly assessed, planned, and well-calculated strategic plan that considers the benefits and accepts the risks.

How does an institution do that?  Any institution seriously considering CDL should form a “CDL Committee” consisting of the institution’s librarian, risk manager/insurance liaison[3], a representative of the institution’s academic wing (if applicable), and an administrative decision maker (an officer of the institution).  The group should consult with (but not necessarily include) a lawyer. 

The group would assess what use their institution could make of CDL, get advice from the lawyer about those specific uses and the risks, check their insurance coverage, assess what is being done at peer institutions, and (perhaps most important) consider how this overall issue impacts their mission.  There would possibly be, at some of the bolder institutions, some acceptance of calculated risk.

If the group’s overall assessment leaned toward CDL, the committee could create a “CDL Assessment and Use Policy” to govern all its uses of CDL.  This way, the decision to use CDL would be rooted in the institution’s mission, while the process would be informed by the library’s assets and users’ needs.  This is critical because if the institution was ever sued for infringement, a good array of back-up material, showing a bona fide belief in Fair Use, and consistent with that of other participants’ in the CDL effort, could help them assert their position and limit financial damages.

With regard to the member’s particular scenario (trying to get more use out of an extensive collection of aging DVD’s), if I were the lawyer consulting with a committee, I would probably advise against that particular use for CDL.[4]  Unless the transmission is per section 110 of the Copyright Act, the risk of a suit for unlicensed transmission of a motion picture is just too high.  But I’d also want to assess each movie on a case-by-case basis.   While the combination of First Sale and Fair Use might not simply allow the restricted streaming, other solutions (a news exception, a license) might. 

I am sorry I cannot give a more definitive answer, but as the CDL organizers themselves point out, CDL is on uncertain ground.  The authors of the “Statement” don’t come right out and say it, but they are trying to fight fire with fire…offering a bold and critical counterpoint to the current copyright scheme through which rights owners tightly control digital dissemination of works in print. 

Libraries, these days, occupy ground zero of many of society’s struggles, and the next regime of IP law is one of those.  On the battlefield of intellectual property, troops are massing at the no-man’s land between digitization and the First Sale Doctrine.  Led by librarians, there is an army that hopes to not only hold the First Sale line, but officially extend it to a practice that is more convenient, green, and aligned with current technology: CDL. 

Does your library want to join that battle? Does it want to explore making select works available, under closely controlled circumstances, without requiring a person to pick up a hard copy?  By making a deliberate, well-planned decision to have a CDL policy, your institution can answer the famous question:

“There’s a war coming…are you sure you’re on the right side?” [5]



[1] https://controlleddigitallending.org/statement

[2] The signature list is like a “Who’s Who” of library world.

[3] The person at your institution who makes sure you have insurance, and transmits claims information when there is an issue…or that person’s supervisor.

[4] At least until a heavy hitter wins a case or two using the CDL argument.

[5] Wolverine to Storm in X-Men, movie (2000).  I wish I had it on DVD.

Tags: Copyright, Digital Access, Fair Use, First Sale Doctrine

Topic: Digital Movie Codes - 10/15/2018
Question 1 Recently, a patron asked what our library does with the digital movie codes that come...
Posted: Monday, October 15, 2018 Permalink

MEMBER QUESTION

Question 1

Recently, a patron asked what our library does with the digital movie codes that come with some of the DVD and Blu-ray disc we purchase. We have been throwing those codes out, so he wanted to know if we could give those codes to him (he would be willing to purchase them).

I would like to know the legality of selling them to patrons to raise funds for the library. What about including them in prizes? Is it covered by the First-Sale Doctrine? What if the fine print on some read "sale or transfer prohibited?" The discs are purchased with tax-payer money, does that further complicate the situation?

 

Question 2

When purchasing DVDs/Blu-rays at a library there are often alpha-numeric Digital Movie Codes available to receive a digital copy of the movie. These licenses seem to be tied to a single person that cannot be used or circulated in any easy way. Is there anything a library could use these licenses for, such as public viewings (as long as they are covered under the appropriate movie license) or giveaways at the library. Or are these Digital Movie Codes best to be thrown away because of the copyright restrictions surrounding digital content? 

WNYLRC ATTORNEY'S RESPONSE

Two questions about a creative use of resources!  Truly a joy to behold.  Unfortunately, this is one of those questions where I have to be a killjoy.

Before I dig into why, let’s clarify: both members have asked about the “Digital Movie Codes,” or alphanumeric keys, on (or in) the packaging of certain DVD’s, Blu-rays, and 4K/UHD discs.  Through a process called “redemption,” the holder of such a code can download a copy of the movie in the package. 

After “redeeming” the code, the holder can download the film to their phone, tablet, or computer.  The idea is that once you’ve paid for the hard copy, even if it is copyright-protected, the purchaser should be able to view the movie on the medium of their choice.[1]

So, can these fantastic codes be used, transferred, or raffled off by a library?  Because of the diversity of licensing terms[2], there is no one, definitive answer.  But my time researching showed that a growing number of these codes are supported at the back end by a company called “Movies Anywhere.” 

Sensing their model is vulnerable to access code re-sale, Movies Anywhere’s Terms of Use firmly state:

Digital codes originally packaged in a combination disc + code package (for example, a combination package that includes a DVD, Blu-ray, and/or 4K/UHD disc(s) and a digital code) are not authorized for redemption if sold separately. By redeeming one of these codes, you are representing that you, or a member of your family, obtained the code in an original disc + code package and the code was not purchased separately. Your representation is a condition of redemption of the code and of your obtaining a license to access a digital copy of the movie. To read all terms and conditions applicable to using your Movies Anywhere account, click here. If you agree, click the REDEEM button above.

See that clause “you…obtained the code in an original disc + code package”?  THAT is what kills the joy and puts the kabosh on the clever transfers and re-uses posed by the members.  Simply by redeeming the code, the person who acquired it from the library (whether by gift, purchase, or luck of the draw) would be in violation of the terms of the license…not a very patron-friendly practice (although some patrons might disagree)!

But wait, there’s more.

Wouldn’t it be nice if the library could have a DVD-viewing room where the digital content of purchased movies was watchable?  That, too, is likely forbidden, since as of this writing, participation in “Movies Anywhere” is limited to “individuals.”[3]  “Companies, associations and other groups may not register for a Movies Anywhere account or use the Movies Anywhere Service,”  states Section 1.a.  Libraries, while not generally thought of in such terms, are “companies,” so arguably, even redeeming the codes to put the content on library-owned technology is not allowed.

Of course, when it comes to these codes, check the fine print.  If they are through a service that doesn’t bar transfer (or on the flip side, doesn’t require the actual purchaser of the package to be the redeemer), you may be able to proceed as envisioned.  That said, I doubt many movie companies will depart from the Movies Anywhere model.  Content providers have had almost two decades since the “RIAA[4] wars” to get this right, and they don’t want to leave any revenue on the table. 

How enforceable are these license restrictions?  We’ll see.  The industry is suing when the terms are violated, and defendants are fighting back (see ongoing case Disney Enterprises, Inc. et al v. Redbox Automated Retails, LLC, in federal court in the Central District of California).  That said, libraries are in a different place than most “companies,” when it comes to restrictions on information.  If there is ever a compelling, information-access reason—or a disability accommodation reason—to use one of the codes, that should be explored. 

P.S. I saw a lot of reasons why libraries can’t give away or sell these codes, but I saw nothing that stops patrons from buying the hard copy, using the code, and eventually donating the hard to the library.  THAT would be within the “First Sale” doctrine.  So while I know that’s the obverse of what the members envisioned, perhaps that can restore some joy to these questions.

Thank you.


[1] Of course, “redemption,” which requires an account, also means the content provider gets a view into your movie choices, viewing habits, and choice of media.  But I will save a privacy rant for another day!

[2] Disney, Lionsgate, Fox…each studio has its own special formula for redeeming these codes. 

[3] Who are “legal residents” of the U.S., no less.

[4] The fight over digital copying of music, eventually leading to many fans swearing off Metallica.

 

Tags: Fair Use, Digital Access, First Sale Doctrine

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.