MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

A tricked-out, decoupaged book cart[1] sounds awesome (especially if it comes with free books).  A commitment to honoring copyright is awesome, too.  And it is entirely possible to do both.

How?

In the spirit of the educational environment that spawned this question, here is an "Assignment" to teach the students about copyright while designing a book cart that celebrates the works it will distribute:

Part 1.  Pick at least five[2] books with covers or illustrations that are OUT of copyright this year.  For extra credit, look up what year of publication this would be on Cornell's Public Domain Guide[3] (hint: in 2019, this would be anything published before 1924).  Make sure you're working from the date the art was published, not when the text was first published![4]  Copy the covers and decoupage to the cart as needed.

This is the "Public Domain" solution.

Part 2.  Pick at least five books with covers or illustrations that are IN copyright.  Generate your own version of the illustrations with some key details changed: maybe the setting is now your town/city, or the characters look like students and teachers at the school.  Make sure your changes say something about the school or the place where you live, as well as the book.  Write a paragraph about why you made the changes and creative choices you did.  Do not sell your work, and resist posting it online.  Just apply decoupage and let the cart wheel around the school, enlightening and educating people.

This is the "Fair Use," solution.[5]

Part 3.  Pick at least five books related to an assignment for a class that will be offered as free books.  Work with the librarian to obtain a licensed copy of the covers you picked from a service,[6] and make sure that as you decoupage the covers, you are within the terms of what is allowed by the license.[7]

This is the "110 Solution."[8]

My grading rubric for this three-part assignment is based on: verifying the publication dates for part one; the thoughtfulness of the paragraph for part two; and the clear application of the license for part 3. 

Ability to demonstrate all three means the cart gets an "A."[9]

Now, this "assignment" encourages maximum use of the legal avenues available for such a project.  Because of that, it is a tad complicated.  But as the member suggests there is a simpler solution: licensing.

The one problem with solely relying on licensed material for a project like this is that you have to very, very careful when you read the license.  Some licenses cover only copies made a specific way.  Others require attribution. Still others say the use must be "non-commercial,"--a term that is always up for debate (academic publishers, for instance, would consider use by a school "commercial," since schools are their main source of commerce).  And finally, licensors also often reserve the right to change the "terms of use" without warning. 

So, if the project depends on a license, make sure you read the terms carefully, print a copy of the license just as it appears when you download the pictures for the project, and plan to make sure the use of the cart stays within the terms of the license.

And with that, whether you decide to go for the copyright trifecta created by the assignment (public domain, fair use, 110), or simply use a license: cart on!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

I must be very clear: Unless I obtained a written representation signed by an officer of Netflix, I would never advise a corporate client[1] to rely on the Swank umbrella license to show a video from a “personal and non-commercial” Netflix account.

Why is this?  Because the one license does not trump the other.

To illustrate this concern, here is the best analogy of I could come up with[2]: if it’s bow hunting season and I get a bow hunting license, I can bow hunt.  I can commune with nature, test my skills, and if I’m lucky, come home that night and make some venison stew.[3]

But if, while eating my dinner, the police stop by to investigate an allegation that I shoplifted the bow and arrows, they won’t say: “Oh, you have a license?  Sorry, back to your stew.”

The same principle applies here.  A Swank license can definitely allow your institution to watch a covered movie you lawfully obtain.  But the Netflix license quoted by the member does not allow the movie to be shown beyond the account holder’s “household.”  And the language makes it clear the account is for “non-commercial” uses.  In other words: a copy used to further institutional operations was not lawfully obtained. 

Unfortunately, Swank is pretty coy about this concern.  Here is the language from the link provided by the member:[4]

Where can I acquire movies after we receive our license?

You can use movies that are secured from any legal source (DVDs, digital copies or any other legal format). While we cannot speak for other companies, we recommend checking the terms and conditions of any streaming service used to confirm that they do not prohibit public performance.  [emphasis added]

Now, in copyright law, everything is up for debate.  If I put this topic on the table at a gathering of three copyright attorneys, I guarantee you’d get six answers (maybe seven).  And of course, attorneys love it when their clients test the boundaries of the law: it gives us a chance to engage in high-stakes, nuanced, and learnedly arguments—and sometimes, it comes with a paycheck.

But one thing most attorneys in the business world respect is risk.  There is a risk that Netflix[5] could view the use as unauthorized.  And I stated above, unless there is rock-solid assurance from the vendor (in this case, Netflix) that it is authorized, use of a personal Netflix account for an institutional purpose is just too risky. 

How does this play out in the real world?  Large services like Netflix look for “teachable moments,” to bring lawsuits.  They send out private investigators, track IP addresses, and look for evidence of broad misuse.  Once they gather the evidence, they select a victim, and sue[6] (although in the case of Neflix, Section 7 of the License allows for them to resolve the matter via private arbitration).

What is the protection against that?  An institutional policy that bars use of personal accounts for professional purposes. 

There are some approaches to this educational dilemma that do pass my “sniff test.”  Some colleges encourage students to get Netflix accounts if they are taking a film class, so they can watch movies at home.  Near as I can see, unless Netflix starts putting some new “not for class” terms in its license, this is okay (but does not extend to the entire class using one student’s account…unless they are all in the same household).  

Similarly, if a history teacher wants to use their Netflix account to view “13,” at home, even if it is to prepare for a lecture or a discussion of the film in class the next day, that strikes me as a “personal” use.  But if their institution asked them to do it, or they wanted to use their account to watch the movie in class, that would not be allowed.[7]

I wish I could give the member clever answer informed by Fair Use, or coming up with some special rule that applies to libraries.  But licensing is a creature of contract, and if you accept the terms, they will generally govern.

So, just like this member, read those licenses carefully!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

At "Ask the Lawyer," we are frequently amazed at the diversity of the copyright questions we get.  When we started the service, we thought we'd often refer people back to answers that had already been covered.

But librarians always find a way to switch things up!

What are the new variables this time?

"Doors" and "images from movies."

We'll start with "images from movies."

Under the Copyright Act, the owner of the copyright controls the right to display still images from movies.[1]  So the member is right to flag this as a possible concern.

But we can potentially rest easy on that point, because educators have some special rights under the Copyright Act--if the material was legally obtained, and if  the material is used as part of the curriculum--and "displaying" images from motion pictures is one of them. 

Or, as Congress puts it in Section 110(a) the Copyright Act:

[P]erformance or display of [one legally obtained] work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction[is an exception to infringement].[2]

So, under 110, here is the analysis to answer the member's question:

1. Is the decoration part of "teaching activities?"

2. Did the teacher obtain the copy lawfully? 

If the answer to both is "yes," then the answer is: decorate the heck out of that door.

Having said that, I appreciate that the two factors set out above are not always easy to answer.  Frustratingly, there is no one-size-fits-all definition of either "teaching activities" or "lawful copies."  That said, using some grown-up versions of famous characters from my childhood, here are some examples of the "wrong" and the "right" way.

The wrong way to use 110

Teacher Mr. Goofus[3] does a Google image search for "Elsa," captures a bunch of screenshots from "Frozen," prints out color copies.  He puts them on the outside of the classroom door, together with a sign saying "Let it go, only a few weeks until Winter Break!"

The right way to use 110

Teacher Mr. Gallant uses the copy of the DVD owned by the school library to create a screenshot of the scene where Elsa is discovered to have magical powers.  He puts it on the inside of the classroom door, along with a sign saying: "This month we'll be reading the Scarlett Letter and discussing depictions of overcoming social alienation in popular culture."[4]

What do these examples show?  The more integrated with the course work, and the more legitimate the copy, the more the teacher (and the school) can claim protection under 110. (NOTE: Mr. Gallant could claim protection under "Fair Use."[5])

Which brings me back to the other variable: the door.  For a 110(a) analysis, what side of the door the movie picture is on is (potentially) relevant, since if the content is on the outside of the door, it's slightly harder to claim the material is part of "face-to-face teaching."  That said, if the link to an actual lesson plan is clearly perceptible (like in the "Gallant" example), I think it could work.

And there you have it. 

I have noticed this "door decoration" phenomenon when picking my kids up from school.  My poor children[6] never have a moment that is Harry Potter® or Elsa®-free.

But I get it, images from movies are a way to brighten the environment and get kids engaged.  Fortunately for the teachers of this world, if you follow its formula, Section 110(a) makes it okay.  This is good, since after taking a quick look, we could not find a non-paywall source for such images.[7]

But make sure the use is part of the curriculum!  Thanks for a thoughtful question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Schools, libraries, prisons, museums, student clubs, companies…from time to time, these places just want to hand out snacks, and let people watch a movie.

The problem is, the simple act of gathering people to watch a movie is governed by an intricate web of copyright law, and the legal filaments of that web change from place to place.

To help institutions navigate this variability, movie studios and agencies (including Swank, the agency mentioned in the question) offer suites of “licensing” options.  Swank’s website even features helpful[1] copyright guides to help customers assess their needs and obligations, so they can select the right license—including an array of broad permissions called an “umbrella license.”

Under an “umbrella license,” movies that the agency has the rights to may be shown by the licensee (under an array of qualifying circumstances).  And as the member writes, this can include showing movies from a borrowed physical copy (like a DVD), even if the copy isn’t supplied by the service.

How does that work?  Here’s an example:

Let’s say my daughter’s kindergarten teacher wants to show the class “My Neighbor Totoro.”[2]  The teacher stops at a local library to obtain a copy on DVD, which bears the warning “licensed for home viewing only.” 

Next, the teacher checks in with the school and confirms that the school is licensed to show “Totoro” under the school’s umbrella license.  My daughter’s class can now watch a masterpiece of Japanese animation, without fear of copyright infringement.

Now let’s switch the scenario up: the teacher wants to stream the movie from his iTunes.  The school still has that same umbrella license.  Can the teacher use his personal account to show the movie?

No.  Unless Apple has changed their “Terms of Use” (usually some version of “You agree that your use will be for personal, noncommercial purposes”[3]), the use would be in violation of the teacher’s license. 

That said, depending on how broad it is, the school could try and claim the “umbrella license” to get the school out from under a claim of direct infringement.[4]  But that could leave the teacher twisting in the wind!  - Not very good for union relations.

To switch the scenario one last time: let’s say the school has an “umbrella license” from an agency like Swank, and also subscribes to a streaming movie service (Amazon Prime).  Before a class views a movie via the Prime stream, the school would need to review both licenses to ensure the Prime license was consistent with, or trumped by, the “umbrella.”[5]

This issue here isn’t really about streaming v. hard copies.  It’s about licenses.  In our first scenario, the “generic” license on a hard copy is (potentially[6]) trumped by the “umbrella license” held by the school.  In the second scenario, the personal license held by the teacher could be violated when he uses his account for more than “personal” use—even though the school is licensed to show the movie.  And in the third scenario: well, it depends.

The key to this question is license alignment.  If an institution has a license to view a movie, and gets the copy it views from another source, there must be no contradictory provisions in the stack of licenses—or, the umbrella license must clearly trump the previous license.  This is true whether the institution is using a hard copy or a streaming copy, and regardless of who the physical copy belongs to. 

The member’s question alerts us to this complexity, and the member is right to approach this issue with caution. 

So.  What constitutes “a legally owned copy?”  I wish I had a simple and rock-solid answer, but these days, that can be a tough call.  Reading the fine print on licenses might not be fun,[7] but it is an essential part of answering this type of question, and it needs to be done on a case-by-case basis.  This is why careful planning during procurement, and attention to details when negotiating licenses and services, is critical.

Thanks for a question that pulls the focus to this issue.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

A new library building!  How exciting.  And what a huge additional array of additional duties it presents, as the library begins to think about moving.

Transitioning library space is a huge undertaking.  And when it involves selling the legacy structure previously occupied, the task can get even bigger.

Here are just a few of the plot twists I have run into during real estate deals involving old buildings:

• We found out that the building wasn’t actually owned by the library (it was owned by the sponsoring municipality);
• We learned that part of the parking lot the owner had used for over twenty years wasn’t actually on their property (it was on their neighbor’s);
• The inspection showed that the building had a ruptured sewage line and had, for decades, been wallowing in its own filth, causing major foundation issues;
• We verified there was friable asbestos in all the wall plaster;[1]
• We imposed a restrictive covenant requiring the original floorboards to never, ever be removed (also called a “preservation easement”);
• We discovered a secret underground tunnel.[2]

Why am I setting out this litany of events, when the member just wants to know if there are any posting/bidding/process requirements when a Special Legislative District or “SLD” public library sells a former building?

I mention them because every real property transaction—no matter what type of library is involved—is different.  And while the base requirements to transfer the building are actually very simple (we’ll get to them soon), the lurking contingencies can create painful extra “required” steps if not addressed well before the sale.

So, before I confirm the one step that absolutely must be taken, here is the “Ask the Lawyer: Basic Factors for Painlessly[3] Selling Your Library Building.”

Once you’ve assembled the “Sale File,” the attorney retained to assist the with the sale will be able to help the library chart a path forward.

Why do I keep emphasizing the early involvement of an attorney?  One look at all the variables created by the factors in the chart above (and my bullet list of “interesting” contingencies) shows why the early involvement of a lawyer is necessary. 

Now, at this point the astute reader will probably say: “This is a great chart and all, Ms. Lawyer, but are you really answering the member’s question?  They asked about required steps for the sale of a special legislative district library.”

The reason the chart (partially) answers the member’s question—or rather, positions someone to answer it—is because, based on the variables listed on the chart, there may be numerous steps required in the sale. 

But what steps—no matter what—are required?

For a library whose building is not owned or controlled by a village/town/city/county,[6] the sale is governed by a combination of the Education law, and the NY Not-for-Profit corporation law, which empowers a library’s governing board to acquire and dispose of library assets[7] in a way that best stewards the overall well-being of the library.[8] No public posting or precise bidding process is required. But there is one thing:

No matter what—the board will need to pass a resolution approving the sale…after receiving sufficient information to show they have examined the sale terms and made a decision in the best interests of the library.

How do you show the contract terms are in the library’s best interest?  By considering them in light of the library’s overall position, and the factors in the Sale File.

Now, with all that being said, I do have to emphasize an important distinction: the transfer of a library building is different than the transfer of an entire library. The transfer of an entire public library as a “going concern” may be subject to a municipal vote, which is allowed by Education Law Section 266.  But, as ruled in 1992 in the case of  Briody v. Lewiston[9], Section 266 does NOT apply to the sale of only the library’s building.

The Briody case, by the way, is a great example of why a library sale requires careful legal planning.  In that instance, the library conveyed its legacy building “pursuant to an agreement entered into in 1972, which provided that, if the Library moved to another location, it would convey its property to the Town and Village, which could dispose of the property for any purpose.” On the chart I provided above, this type of “Briody contingency” would be caught by a combination of factor 5, addressed by factor 9.

The good news is, when a library has already gone through the intricate dance required to fund, plan, and contract for a new building, they likely already have an attorney “briefed and ready” to assist with the sale of the old.  That attorney will also be in the position to help the library plan for contingencies that could delay the move (such as—shudder—complications during construction).

So, what steps get you to that board resolution, and a smooth process?  Assemble the Sale File, ask your attorney out for a stroll, and start planning a sale the board members can vote for with full confidence that they are making the best decision for the library.

Best wishes for an easy Certificate of Occupancy, a smooth transition to the new building, and a sale that shows the trustees are formidable fiduciaries!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Wow, what a great question: what is the hierarchy of laws impacting the employment conditions of librarians?

The laws impacting the employment conditions of librarians are a complex logic tree with many branches.  When I consider the amount of laws, and the permutations….

Just…wow.[1]

For a lawyer practicing in both library and employment law, this question is the equivalent of someone handing a librarian a huge box of materials while asking: “Can you catalog these, then use them in a ‘Library Employee Rights’ display for the lobby?”

I can’t wait to curate the display, but first, let’s take a look at what’s in the “library employment law” box.  We’ll take them in rough order of hierarchy/priority.

The first item in the box is a huge, grubby tome that lawyers, even younger ones, use every day (if they are at a firm owned by a crusty Gen X lawyer[2]): Black’s Law Dictionary. 

A legal dictionary is in the collection because, although no lawyer would ever litigate an employment law matter based solely on a dictionary definition, legal concerns often turn on precise word meaning, and employment law certainly does.  In fact, there are at least three different legal definitions of  the word “employee” that apply to library-related issues.[3]

The second is not a book, but a collection of CD’s containing a huge database.  What’s on the database?  It’s the “common law”—a body of case law and rulings that can influence how black-letter laws[4] work together.  The “common law” is a body of shared language and precedent that can influence (sometimes heavily) legal decisions.  It is often the glue that holds legal decisions together.

And now, for a few volumes that are far less esoteric:

The Fair Labor Standards Act (“FLSA”): Among many other things, this is the law governing who must be paid overtime when they work more than 40 hours in the standard work-week.

Federal Civil Rights Laws: This is a compendium of laws governing rights protecting people under the jurisdiction of the USA from discrimination.  It includes the Civil Rights Act and the Americans With Disabilities Act. 

The New York Human Rights Law: This is a compendium of laws governing rights protecting people from discrimination in New York.  It includes protections on the basis of religion, sexual orientation, gender expression, prior conviction and pre-disposing genetic characteristics (among many other things).  It is why your library recently adopted a sexual harassment report form.[5]

New York Labor Law & Regulations: Among many other things, this is the law that mandates one unpaid break every six hours for certain hourly employees.

New York Civil Service Law: Among many other things, this is the law governing the hiring, advancement, compensation scale, discipline, and termination of most public library employees.

Federal Laws Governing Benefits: This is a compendium of laws governing employee benefits in the USA.  It includes a law called ERISA, and the Affordable Care Act.

The New York Laws Governing Employee Benefits and Protections: This is a compendium of laws controlling unemployment insurance, workers’ compensation for work-related injury, insurance for non-work-related injury, retirement benefits, and most recently, the Paid Family Medical Leave Act.

New York Education Law & Regulations/New York Not-for-Profit Corporation Law: These laws are combined in one handy volume to create the rights and duties of a chartered library, and its governing board (who, within a framework of laws, are the ultimate decision-makers regarding employment at their library).

Local Civil Service Rules:  Based on New York’s “Municipal Home Rule Law,” many of the details of Civil Service-controlled employment practices can change from county to county (and municipality to municipality).

Local laws: Some municipalities adopt local law to create further protections for employees.  These laws cannot be contrary to state, federal, and county law, but can expand employee rights further.

Random Authorities:  This book is a vivid graphic novel depicting numerous opinions by the Equal Employment Opportunity Commission (“EEOC”), the U.S. Department of Justice, the National Labor Relations Board, the New York State Comptroller, the New York Attorney General, the New York Committee on Open Government, and the New York Commissioner of Education, regarding matters impacting library employees.  One delightful example of this is an intricate decision by the State Comptroller about how much money could be spent on a party for volunteers.[6]

And finally, some really cool, custom works are in the box… 

A Choose-Your-Own-Adventure novel called A Journey Through Your Charter and Bylaws.

Why is this a choose-your-own-adventure?  Because while neither a charter nor bylaws can change the above-listed law, the “type” of library an institution is chartered as will impact if and how those laws apply.  And within the framework set by those laws and their application to your library, it is the board—whose composition and functions are controlled by the charter and bylaws—that is the ultimate party responsible for hiring and firing of employees, which sets the stage for all other employment-related actions.

A collection of scrolls labelled “Contracts.”  This could be as simple as a contract with an Executive Director or Book-keeper, or as complex as a “Collective Bargaining Agreement” with an employee union. It is important to note that while a contract can create a great many additional rights, it cannot be contrary to the Charter and Bylaws, nor any of the laws listed above (UNLESS there is not an “exception” in the law, allowing it to be altered by the terms of a collective bargaining agreement, and if your library type means they apply).

And finally, the most valuable part of the collection: a weird device, rather like a flour sifter, that says in big, bronze letters on its handle “IT DEPENDS.”  What does this screen do?

It tells you which laws apply to which libraries, in which order of priority, under which circumstances.[7]  When applied properly, this allows you to create…

Your Institution’s Employee Policies, drafted to comply with the law as it applies to your library, and to support your unique charter and mission.  Such policies should be routinely re-assessed to ensure continued legal compliance and support for your library’s key objectives (like attracting, retaining, and developing the best staff possible).

In other words—and in direct response to part of the member’s question—the purpose of policy is to articulate and apply the law as it governs your library.  No policy should ever contain a provision contrary to a governing law or regulation.  This is why policy must be routinely assessed, revised, and updated.

And that’s the collection.

At this point, I imagine the member who asked this question might be feeling: Whoa, information overload!

Let me show you my display, here….

You probably thought it was going to be a tree, right?  Nope.  It’s a finely balanced array of media stacked to look like librarian assembling a sculpture of…a librarian. 

Why is that?

No other entity created by law(s) has the type of support, mandates, restrictions, and—yes—latitude under the law that libraries do.  Yes, libraries operate with a strict framework created by the laws and regulations listed above,[8] and operate within exacting mandates…but within that framework, libraries have almost limitless discretion with policies.  That is how they function and evolve as reflections of their communities. 

That said, certain things fundamental, and cannot be trumped by much.  Here are a few (with links to the laws that back them up):

• In New York, librarians must get an unpaid half-hour break every six hours; https://www.labor.ny.gov/workerprotection/laborstandards/employer/meals.shtm
• Even if considered employees of their sponsoring municipality (which is often, at a bare minimum, debatable!), most librarians paid an hourly wage are entitled to protection under the FLSA; https://www.dol.gov/whd/regs/compliance/whdfs7.pdf
• In New York, unpaid volunteers may not replace or augment paid staff; https://www.labor.ny.gov/workerprotection/laborstandards/PDFs/FAQs_NonProfit_and_State2016.pdf
• In New York, any employee reporting or supporting a concern about sexual harassment is protected from retaliation;

 https://www.ny.gov/combating-sexual-harassment-workplace/workers

• In New York, public library employees serve at the pleasure of their boards, NOT their sponsoring municipality;

https://www.nysenate.gov/legislation/laws/NPC/202

• In New York, public library employees may be indemnified[9] by their governing boards;

https://www.osc.state.ny.us/legal/2001/op2001-12.htm

• In New York, association library employees may be indemnified by their governing boards;

https://www.nysenate.gov/legislation/laws/NPC/202

• And…while it can be rather a pain to work within, public library employees are protected by the New York Civil Service law:

https://www.nyla.org/a-librarians-guide-to-civil-service-in-nys-2018/[10]

How does this play out?

Let’s take breaktimes as an example.

In New York, employees have to take a break every six hours.  It’s the law.  In my office, when a paralegal gets so into the project they don’t want to stop, I have to order them[11] to take a break.  (at which point they do, because otherwise…irony).

Now, how I choose to support my employees as they take their break is up to me, and may become a matter of policy.  Do I supply a break room?  Do I have a fridge and a policy/procedure for keeping the break room clean and the fridge free of mold?  All of those things are discretionary—and to govern the details, I might have a policy that goes beyond the minimum.  But here is where things get complicated: If an employee doesn’t follow the policy, I may need to follow rules set by Civil Service to discipline them. But if I am selectively enforcing the policy in a discriminatory way, state or federal civil rights law could govern. Or perhaps the employee will first file a union grievance, which we’ll have to arbitrate…

And that is the hierarchy of employment law.  It’s not really a heirarchy…it’s more of a fractal pattern.  The good news is, library leadership gets some say in the pattern.

What shape does your library pick?

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

I first heard about “ResearchGate” at a copyright training I was conducting for librarians. 

There I was, holding forth about Section 108 and Fair Use, when out of the blue, an academic librarian asked me: “What do you think of Researchgate?”[1]

This question triggered my number one rule for lawyering: never assume you know an answer; always do your research.  So even though my brain figured that “Researchgate” was a new scandal involving falsification of data,[2] I instead replied: “I have to admit, I am not familiar with that.” 

Good thing I followed rule number one!

Since that time, and in response to this question, I have had a chance to visit ResearchGate’s “About” page and their “Terms of Use” (for academics and students) page.  And I have developed some thoughts.

But first, here’s what I have learned:

Notably, as the member points out, ResearchGate’s “Terms” for submitters reinforces the rights of authors:

As a member, when you post full-text articles or supplementary materials on ResearchGate, you do not transfer or assign copyright to us. Rather, you make the content available to the public through ResearchGate.

…about encourages users to respect the rights of others:

If you choose to privately archive or publicly post content, we encourage you to first confirm your rights before doing so. … As we do not have any information about rights you may hold, or any license terms or other restrictions which might apply to such content, we necessarily rely on you to understand your rights and act accordingly. 

ResearchGate’s relationship with users is also governed by clauses on “Liability” and “Indemnification”—with ResearchGate attempting to pass all liability for a copyright infringement onto the users who supply content.

And finally, as also shown in their policies, ResearchGate also takes advantage of the “notice and takedown” provisions under the Digital Millennium Copyright Act to assure itself “safe harbor,” in the event a user posts infringing content.[3]

What I found at ResearchGate.com was what looks like a thorough attempt to dot all the “i”s and cross all the “t”s to respect intellectual property.  They probably have a very good lawyer.

But as I said, “always do your research,” so in addition to visiting their site, I also visited PACER to see if ResearchGate is being sued by anyone for copyright infringement.  And boy, are they ever.

ResearchGate GmbH (its corporate name in Germany, where it appears to be based) is being sued by Elsevier, Inc., Elsevier Ltd., Elsevier B.V. and the American Chemical Society (“ACS”).[4]  The basis for the suit, as set forth in paragraph “three” of the plaintiff’s complaint, is the ResearchGate’s use of “Published Journal Articles” (which the suit calls “PJA”s):

This lawsuit focuses on ResearchGate’s intentional misconduct vis-à-vis its online

file-sharing / download service, where the dissemination of unauthorized copies of PJAs

constitutes an enormous infringement of the copyrights owned by ACS, Elsevier and other

journal publishers. The lawsuit is not about researchers and scientists collaborating; asking and

answering questions; promoting themselves, their projects, or their findings; or sharing research

findings, raw data, or pre-prints of articles.

And, just in case that doesn’t sound too bad, here’s the next paragraph:

ResearchGate’s infringing activity is no accident. Infringing copies of PJAs are a

cornerstone to ResearchGate’s growth strategy. ResearchGate deliberately utilizes the infringing

copies to grow the traffic to its website, its base of registered users, its digital content, and its

revenues and investment from venture capital. ResearchGate knows that the PJAs at issue

cannot be lawfully uploaded to and downloaded from the RG Website. Nevertheless, in violation of the rights of ACS, Elsevier, and others, ResearchGate uploads infringing copies of

PJAs and encourages and induces others to do so. ResearchGate finds copies of the PJAs on the

Internet and uploads them to computer servers it owns or controls. In addition, ResearchGate

lures others into uploading copies of the PJAs, including by directly asking them to do so,

encouraging use of a “request full-text” feature, and misleadingly promoting the concept of “selfarchiving.”[sic]  ResearchGate is well aware that, as a result, it has turned the RG Website into a focal point for massive copyright infringement.[5]

Yikes, that sounds dire, right?  And very akin to the member’s concerns.

So, with all that established, I’ll share my thoughts, and address the member’s questions.

Number one, should libraries be directing individuals to ResearchGate to ask authors for copies of their articles? Number two, should our document delivery service be providing copies of PDFs from ResearchGate to our library patrons?

Questions like this may be informed by law (and risk management), but must always start with ethics. 

The ALA Statement of Ethics[6] has very clear language regarding intellectual property: We respect intellectual property rights and advocate balance between the interests of information users and rights holders.

When it comes to a source like ResearchGate—ostensibly trying to operate within the bounds of the law, but alleged to have a seamier side—the ALA’s further musings[7] on this statement on copyright are also instructive:

 Library workers are increasingly critical resources for copyright information in their communities. Consequently, they should be informed about copyright developments and maintain current awareness of all copyright issues. Library workers should develop a solid understanding of the law, its purpose, and the details relevant to library activities. This includes the ability to read, understand, and analyze various copyright scenarios, including fair use and other copyright limitations, using both good judgment and risk mitigation practices.

Library workers should use these skills to identify their rights and the rights of their users. Further, they should be ready to perform outreach surrounding copyright topics and refer users with questions pertaining to copyright to reliable resources. However, library workers should avoid providing legal advice. They may provide information about the law and copyright, but should recommend that patrons consult an attorney for legal advice. [emphasis added]

I can’t answer the member’s questions for any particular library. But based on the ALA Statement of Ethics, its further comments on copyright, and risk management principles drawn from the law, I can suggest a methodology for a library to apply when asking them.

First, if a librarian, using their own observations, and applying ALA ethics, believes a source to be dubious,  it is clear that they are ethically obligated to “us[e] both good judgment and risk mitigation practices” about “relevant to library activities,” and to work with decision-makers at their institution to develop a clear position on that source.

This is not a simple nor easy exercise.  Further (and frustratingly, for some) it may vary from institution to institution.  Some libraries dance on the cutting edge of copyright.  Others err on the side of caution.  The decision to do either should be based on an informed assessment that considers the library’s mission, insurance, tolerance of risk, and its comfort level with the status quo.  

The member is already applying personal experience and modeling this balancing.  Remember the last part of the question: I am personally very hesitant to refer anyone to ResearchGate, as I find most faculty researchers are not aware of who truly holds the copyright to their published articles.

To that type of informed concern, there are two considerations I would add for libraries making this type of determination:

1) Under Section 108 of the Copyright Act, a library’s exemption from infringement can turn on their lack of awareness of a scheme to make exploitive commercial copies.  Your library’s insurance may also deny coverage if a library is knowingly referring users to an infringer.  So, if your institution is aware that a source is an infringer (which is different from suspecting a source is an infringer), that is a factor to balance.

2) On the flip side, libraries should not be willing (and generally have not been willing) to roll over to support the unchecked dominance of traditional commercial publishers.  Without pushback, rates will continue to go up, while terms will get more onerous.   But there is a difference between thoughtful pushback (like the current, organized fight against the McMillan Embargo[8]), and systematic copyright infringement (like Napster).  

Questions like this one show that librarians are thinking about the difference.  

Thanks for a great question.  It will be interesting to see if the case against ResearchGate goes the distance, and to see libraries decide where they stand.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

There are many technical aspects to this question, and this answer will explore many of them.  But first, I invite each reader to sit back, close their eyes, and envision the types of information their library takes in, maintains, or manages digitally.

Name…address…phone number…e-mail…library card number and account information.  Perhaps a driver’s license, or other photo ID.  Credit card information? Job applicant information, payroll, and employee data….  Donor information.  Survey responses.  Licensed lists.  Content related to digitization.   And (of course) every digital record related to a library’s core function: providing information access.

Now envision what someone with less-than-ethical intentions could do if they accessed or appropriated that digital information:

Disclose confidential library records…sell active credit card information on the dark web...use the information to design a very convincing phishing[1] scheme….

And I bet you can easily think of more. 

Scary?  You bet it is.  This is the type of risk-management New York’s lawmakers had in mind when they enacted the SHIELD Act[2], a far-reaching amendment to the state’s laws governing data security.

And as the member points out, the changes will impact your library.

So, what does this law require?

A lot. 

And here is where we get technical.  Because the law will hit different types of institutions differently, this “Ask the Lawyer” can’t give you a word-by-word recital of the precise obligations the SHIELD Act will impose on your institution.   But it can give you a plain-language DIAGNOSTIC FORM to help your board, your director, and your (internal or external) IT team a tool to start assessing your obligations.

So here, without further ado, is the ‘ASK THE LAWYER’ SHIELD ACT DIAGNOSTIC FORM.  If you have a buddy to fill this in with, I suggest you invite them to help, this is not the type of exercise to do alone.[3]

And that’s the SHIELD Act.[6]

How does a small not-for-profit tackle this expansion of data security laws?  Like anything else: inventory your status under the law, establish a goal for compliance, develop a budget and a plan, make sure the responsibility is appropriately allocated, confirm insurance coverage alignment, use all the resources at your disposal (your system, council, insurance carrier, and board members who have lived through data breach compliance) and get it done. 

In practical terms, this is also means:

• If your library makes a practice of getting a copy of every member’s photo ID, and stores it on an Excel spreadsheet on an unsecured computer, now is a great time to stop doing that.
• If your library maintains a list of users, credit card numbers, CCV numbers and expiration dates on your network, now is a great time for a network security assessment.
• If your library uses an outside IT contractor, now is a great time to review their contract and make sure it provides assurance that services will be SHIELD Act-compliant.
• If you have no idea if your institution’s insurance covers data breach (and recovery), now is a great time to ask your agent, broker, or carrier.  They might even have some resources to help you with SHIELD Act compliance.

The penalties for violation of the SHIELD Act are $5,000 per violation, in an action brought by the New York Attorney General (the law doesn’t create a private right to sue).  Other changes to the law make it easier for the AG to learn of data breaches, and to coordinate with other law enforcement agencies trying to combat them.  As we envisioned at the beginning of this article, the states for a breach are high.

But don’t worry.  No matter where your diagnosis falls, remember: libraries have been operating under heightened privacy obligations since before there were computers.  That mindset—awareness of an ethical duty to protect privacy--is the most important part of a program to minimize the risk of breaches. 

You’ve got this.

Thanks for a great question.

***A data security program includes the following:

 (A) reasonable administrative safeguards such as the following, in which the person or business:

(1) designates one or more employees to coordinate the security program;

(2) identifies reasonably foreseeable internal and external risks;

(3) assesses the sufficiency of safeguards in place to control the identified risks;

(4) trains and manages employees in the security program practices and procedures;

(5) selects service providers capable of maintaining appropriate safe-guards, and requires those safeguards by contract; and

(6) adjusts the security program in light of business changes or new circumstances; and

(B) reasonable technical safeguards such as the following, in which the person or business:

(1) assesses risks in network and software design;

(2) assesses risks in information processing, transmission and storage;

(3) detects, prevents and responds to attacks or system failures; and

(4) regularly tests and monitors the effectiveness of key controls, systems and procedures; and

(C) reasonable physical safeguards such as the following, in which the person or business:

(1) assesses risks of information storage and disposal;

(2) detects, prevents and responds to intrusions;

(3) protects against unauthorized access to or use of private information during or after the collection, transportation and destruction or disposal of the information; and

(4) disposes of private information within a reasonable amount of time after it is no longer needed for business purposes by erasing electronic media so that the information cannot be read or reconstructed.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Not only is it legal, but it is required by law.

When the new provisions of New York’s Public Health § 1399-o first went into effect June 19, 2019, “Ask the Lawyer” got a question about enforcement, so we wrote a guide for implementation. 

While hopefully the “guide” has been useful (it warmed my heart to see one library[1] getting media coverage for putting up signs with wording I suggested), it might be easy to miss the actual heft of this law as we think about the details of implementation.

So here, without too much distracting commentary, is the text of the new law:

Smoking shall not be permitted and no person shall smoke within one hundred feet of the entrances, exits or outdoor areas of any public or association library as defined in subdivision two of section two hundred fifty-three of the education law; provided, however, that the provisions of this subdivision shall not apply to smoking in a residence, or within the real property boundary lines of such residential real property. [emphasis added]

Seems pretty straightforward to me…“outdoor areas” as in: the outside (with an exception for nearby residential properties).

Despite this straightforward language, since I wrote the “guide,” we have gotten some questions from members stating that their local health department claims they will only enforce compliance within 100 feet of exits and entrances.

This feedback really concerned me.  First, it is contrary to the plain language of the law.  Second (but really first), libraries are finding new ways to reach out to the public every day; this includes outdoor programming.[2]  “Outdoor areas” of the library serve the public, too.

So, inspired by this latest question, and the feedback we’ve received, I called my local Erie County Department of Health, and reached  Rob Tyler, who works on smoking enforcement. 

Rob and I had a nice chat about how sometimes the language in these laws can be open to interpretation, but this seemed pretty clear.  But then he suggested: “You should probably call the State.  They are one ones who can give guidance on the law.”

So, after thanking Rob for his time, I called the General Counsel’s Office at the New York State Department of Health, and was directed to attorney Megan Mutolo.[3]

Megan also agreed with me on the plain language of “outdoor areas.”  That said, she urged me to urge libraries to build a relationship with their county health departments so libraries are ready to enforce the new law together. 

This is good advice from Megan.  Since New York tries to encourage “municipal home rule,”[4] as much as possible is left to local officials from within a particular community.  This means that local health departments can have their own take on the new law…one that you can discuss with them while forming a meaningful alliance.[5]

So, to the “helpful tips” in the “guide,” inspired by this question, I add: Consider making a connection with your local health department, and reviewing the precise language of the new law together.  Many departments, if they have not given the new law a careful review, might overlook the requirement about “outdoor areas.”  But that language is there, and when read in context, is very clear—as is the library’s obligation to enforce this law.

Thanks for your question!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This question is rather like asking an astronautical engineer: When on a spacewalk, are there any safety procedures specifically related to securing my helmet as I exit the airlock? 

Such a question could inspire an initial reaction like:  Safety concerns?  In SPACE???  Blazing comets,[1] the safety concerns start the moment you blast off!

But upon reflecting on the actual question, the calm, composed answer might be: “To ensure integrity of the pressure garment assembly, double-check the neck-dam’s connection to the helmet’s attaching ring.”[2]

Lawyers get this way addressing questions related to children and liability.  Our first reaction is to think about everything that can go wrong.  But then we calm down and focus on the specific issue at hand.

So, here is my calm, composed answer to the member’s very specific question:

There are two potential instances where a public library offering a program for unaccompanied minors might be obligated by law to collect emergency contact information.

FIRST INSTANCE

If the program the library is hosting is a camp required by law to have a “Safety Plan,” applicable regulations arguably require that the library gather the child’s emergency medical treatment and contact information.[3]

SECOND INSTANCE

If the library is paying a child performer as part of an event, the law requires that the library must collect the child performer’s parent/guardian information before the performance.[4]

Other than the above instances, while such a practice may be required by an insurance carrier,[5] a landlord, or event sponsor, there is no state law or regulation that makes collecting emergency contact information a specific requirement of a public library.

I do have two additional considerations, though.

FIRST CONSIDERATION

 “Emergency contact” information provided by the parents/guardians, in a signed document drafted expressly for your library, is generally the best course of action when welcoming groups of unaccompanied minors for events not covered by your library’s usual policies. 

I write this because Murphy’s Law (which is not on the bar exam, but remains a potent force in the world) will ensure the one time there is an incident at your youth program, the district’s automation system will be down.

Which brings us to the….

SECOND CONSIDERATION

Libraries and educational institutions sharing automation systems must make sure that such data exchange does not violate either FERPA (which bars educational institutions from sharing certain student information), or CPLR 4509 (which bars libraries from sharing user information).

Emergency contact information maintained by a school is potentially a FERPA-protected education record.[6]  If FERPA-protected, it is illegal for any third party—such as a public library—to access it unless there is an agreement in place with certain required language AND the library’s use of the information is in the students’ “legitimate educational interests.” [7]

Of course, given the right circumstances, meeting these criteria is perfectly possible.  In fact, such agreements can be a routine part of a school’s operations.   But just like with a space helmet before leaving the airlock, its best to confirm that everything is in place before you take the next step.[8]

Thanks for a thought-provoking question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This answer comes with many disclaimers, because the legal parameters of room access and rental at chartered libraries in New York is variable territory.  In other words: the answer can depend on the library’s “type” (set by its charter), its fundamental rules (found in the bylaws), its IRS status (the “501 (c)(3) mentioned by the member”), its day-to-day rules (controlled by policies), its lease (not all libraries own the space they occupy), and any deed restrictions (although deed restrictions on the basis of speech would bring concerns).

That’s right: education law, not-for-profit corporation law, tax law, real property law…this question has it all!

That being said, the member’s question centers on federal tax law; specifically, the library’s 501(c)(3) status, which not only makes the library tax-exempt, but allows it to receive tax-deductible donations.  This status is an important fund-raising asset, and its many conditions (including not engaging in politics) cannot be taken lightly.

Here is what IRS Publication 557, the go-to for creating a tax-exempt entity, has to say about political activity:

If any of the activities (whether or not substantial) of your [501(c)(3)] organization consist of participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for public office, your organization won't qualify for tax-exempt status under section 501(c)(3). Such participation or intervention includes the publishing or distributing of statements. Whether your organization is participating or intervening, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Certain voter education activities or public forums conducted in a nonpartisan manner may not be prohibited political activity under section 501(c) (3), while other so-called voter education activities may be prohibited. [emphasis added]

Like many guides from taxing agencies, this one is superficially helpful (I put that part in bold), but upon examination, employs a disclaim that gives very little concrete guidance (I underlined that part).  So, what’s a library with a spare room to do? 

As alluded to in both the member’s question and my opening paragraph, this question doesn’t turn solely on the IRS.  Any 501(c)(3) library that rents or allows free use of space should have a robust “Facility Use Policy”[1] that considers not only IRS regulations, but safety, equal access, and operational priorities (requiring users to clean up after their meeting, to not be noisy, to respect the space).  For a library in a municipally-owned building, care must be taken to ensure use fees are applied in a way that does not violation the NYS Constitution.  And for a library that rents, the Facility Use Policy must harmonize with the lease.

But the member’s question is about 501(c)(3).  So, having established that this consideration is but one of many when giving access to or renting space, here are the three things to consider when a 501(c)(3) rents or gives access to space:

1)  Rental income needs to be a very small percentage of the library’s revenue. 

Section 501(c)(3) requires that income from renting space can’t outweigh donations and other sources of income related to the library’s tax-exempt purpose.  This is something to discuss with the library’s accountant; while rental income isn’t barred, it can bring funding ration and tax consequences that warrant the attention of a professional.

2) The use of the space can’t “inure” to the benefit of any one company or individual.

Section 501(c)(3) also requires that a qualifying organization’s resources can’t directly benefit any one person or entity more than the general public.  For example, free use of the spare room by a person conducting a stained-glass workshop with an admission fee (even a nominal one), can be considered an “inurement.” [2]

3)  As raised by the member’s trustee, the use of the space cannot violate the bar on lobbying (influencing legislation) and political activity (supporting a particular candidate for office).

And as reviewed, Section 501(c)(3) bars political activity (as further defined in the excerpt from 557, above).

“Ask the Lawyer,” has had some fairly large answers, but I don’t have space to address every occurrence that could run afoul of the bar on “political activity.” But what about renting space, on the same terms as to any other entity, to an event like the one described by the member?

Here is what the IRS has to say:[3]

Can a section 501(c)(3) organization conduct business activities with a candidate for public office?

A business activity such as selling or renting of mailing lists, the leasing of office space or the acceptance of paid political advertising may constitute prohibited political campaign activity. Some factors to consider in determining whether an organization is engaged in prohibited political activity campaign include:

a. Whether the good, service or facility is available to candidates in the same election on an equal basis,

b. Whether the good, service or facility is available only to candidates and not to the general public,

c. Whether the fees charged to candidates are at the organization’s customary and usual rates, and

 d. Whether the activity is an ongoing activity of the organization or whether it is conducted only for a particular candidate.

When developing a Facility Use Policy, if a library is a 501(c)(3) charitable organization, and wishes to be able to rent space to (among others) political organizations for event, the above-listed factors should be built right into the policy.

Here is some sample language (some of it will sound familiar):

As a 501(c)(3) organization, the NAME library does not participate or intervene, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Therefore, the use of space in our facility by political organizations or for partisan political events is only available on the same rental terms as for the general public, and is subject to a rental fee that is charged equally to any political group or other individual or group.   NOTE: Certain voter education activities or public forums conducted in a nonpartisan manner may qualify for a fee waiver, just as do other free and open events conducted by a charitable entity for the benefit of the public.

So, what about the member’s scenario?   In the absence of a spot-on facility use policy, I suggest the following process:

1. Using the appropriate tax guidance, the library needs to decide if this particular “Meet the Candidates” event complies with 501(c)(3); in particular, is to be a “public forum conducted in a nonpartisan manner?”  Or is it skewed to benefit one candidate over the other? 

2. Is the sponsoring organization a charitable entity, or is there any risk that the terms for using the room would be an “inurement?”  Will donations be solicited?  Is money charged to enter?

3. If the answer to either shows a risk of violating 501(c)(3), then the library needs to consider if it wants to follow the formula to “do business” with a candidate for public office.  This would mean charging for the use as you would any other use.

If the library’s past practices make following those three steps too blurry, it is best to take a pass on this precise event, and take the time to develop an up-to-date and thorough Facility Use Policy that considers the types of uses the library will allow, and how and when it will charge for them. There are many good models out there to draw inspiration from, but before the board passes such a policy, it would be good to have it reviewed by a lawyer (who has ready the charter, bylaws, other policies, lease, deed, and any other relevant documents).

The member’s library is fortunate to have leadership that is thinking about both the first amendment and safeguarding the organization’s tax status.  Good work.  No matter what the final decision, awareness and commitment to these values serves your community.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

I am sure there is a very interesting set of facts, personal convictions, and conversations behind the stark facts presented in this question (there always is).  But we’ll address just the stark facts.

Because a library’s Code of Ethics, Conflict of Interest Policy, and Whistleblower Policy[1] are rooted in different areas of the law, a refusal to sign these documents creates an array of ramifications. We’ll explore each type in turn.

But first, it’s important to establish certain base factors.

Base Factors

In New York, most libraries (unless they are part of a larger institutions like a college or museum) are not-for-profit corporations chartered by the New York Education Department’s Board of Regents.[2]  This means that, just like other not-for-profit corporations registered with the New York Department of State, libraries are subject to the Not-for-Profit Corporations Law (the “NFPCL”).[3]  This includes school district public libraries.

Without getting too technical, this means that all libraries in New York are governed in accordance with not only their charters and bylaws, but the applicable parts of the Education Law and the NFPCL, too.[4]

This governance structure impacts questions related to conflicts of interest, whistleblowing, and codes of ethics. With the basic features established, let’s look at the different type of policy in the member question.

Conflict of Interest Policy

Here is what the law says about a refusal to participate in the “Conflict of Interest” policy, as governed by the NFPCL:

The conflict of interest policy shall require that prior to the initial election of any director[5], and annually thereafter, such director shall complete, sign and submit to the secretary of the corporation or a designated compliance officer a written statement identifying, to the best of the director’s knowledge, any entity of which such director is an officer, director, trustee, member, owner (either as a sole proprietor or a partner), or employee and with which the corporation has a relationship, and any transaction in which the corporation is a participant and in which the director might have a conflicting interest.[6]

So, to give a stark answer to the member’s question, per the law, no person should actually be elected to serve as a trustee until the nominee’s Conflict of Interest statement (the “COI”) is completed and submitted.  In other words, if the COI is not turned in, that person should never initially be elected as a trustee (we’ll pick that back up in a few paragraphs when we discuss the election criteria for school district public library trustees).

Whistleblower Policy

A requirement to “sign” the Whistleblower Policy is a slightly different matter.  Unlike the law related to conflicts of interest, the law requiring any not-for-profit with over 20 employees (or revenue in excess of one million dollars) to have a Whistleblower Policy[7] does not come with a requirement for trustees to sign any document. 

Of course, a refusal to abide by the Whistleblower Policy (for instance, a trustee failing to keep a report confidential), could result in a violation of the law, and the libraries’ bylaws, as well.

Code of Ethics

Public school boards must have Codes of Ethics,[8] but libraries—even school district public libraries—do not. There is no requirement in the NFPCL, nor the Education Law, nor any applicable regulations, that a public library have such a code.

That said, to clearly express and enforce a library’s values, a Code of Ethics is often built into a library’s bylaws or adopted as a stand-alone policy of a library’s board.[9]   The bylaws, or policy itself, could also require that it be signed.  Once it is a requirement of the bylaws or policy, it does not have the force of law, but it can be enforced by the board.

Refusal to Sign

Which brings us to: whether it a requirement of law or policy, the refusal to sign of a board member must be addressed under the library’s charter, bylaws, and the NFPCPL. 

Under NFPCL §706, a board is empowered to remove a board member per the procedures in its bylaws.  Therefore, if a board determines that failure to sign the Code of Ethics or Whistleblower Policy is unacceptable, or that a failure to sign a Code of Ethics makes the library non-compliant with the law, then that board member can be removed, provided the remaining trustees are careful to follow the bylaw’s procedures for doing so. 

This can be a divisive issue, since I imagine someone could present a debatable reason for not signing a Code or other policy,[10] but since a Code of Ethics or mission statement is something every board member must support as part of their service to the library, the root cause of the refusal might be just as serious as the refusal, and in any event, must be resolved. And that is, except for one wrinkle, the lay of the land.

School District Public Library

At school district public libraries, board members are elected per the requirements of Education Law §260. 

§260, and by reference, §2018 of the Education Law, include very precise conditions for the nomination and election of a school district public library board member—none of which is a pre-vote signature on a COI, or a signed acceptance of a Whistleblower Policy or Code of Ethics.

Of course, per Public Officers Law §10, all school district public library trustees must take and file an oath of office “before he[11] shall be entitled to enter upon the discharge of any of his official duties.” This means, somewhere in the “pre-term” area after the election but before the newly elected trustee starts working, there is a zone where they can, based on a refusal to take the oath of office, not be qualified to start the term.[12]

The consequences of a refusal to sign a COI are a little less well-defined, but it is clear that if a board tolerates a refusal, the organization is not in compliance with the NFPCL.  The refusal to sign a Whistleblower Policy is not controlled by law, but the failure to actually follow it is.  And the failure of a board member to sign a Code of Ethics is a matter to be decided by the rest of the governing board.

What Happens Next?

The refusal to sign and participate in critical board policy cannot simply be ignored.  It has to be addressed, and the rest of the board has to follow the rules as they address it.

Barring any obvious provision in the bylaws or wording in a particular policy, what does the board use as a playbook for dealing with this type of challenge?  Upon confirming the factors leading to the refusal, a board’s executive committee,[13] consulting with the library’s lawyer and working from copies of the charter and bylaws, must consider the facts, could develop a solution.  The solution could be a revision of a policy to address a particular concern, or, in the case of an incomplete COI, removal of the member.  In no event should this be done without the input of an attorney, since the stakes are high, and feelings may be strong.

Thank you for an important question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Yes, I can point you in the right direction…but I can’t take credit for drawing the map!

Since it pertains to a local “Music Educators Association,” this question brought me on a pleasant journey into the chartered territory of the “New York State School Music Association,” a/k/a “NYSSMA.”

NYSSMA is the organization for school music educators in New York.  Its mission is to “advance music education across New York State for its membership and students in member school programs.” 

Like libraries, schools, and BOCES, NYSSMA is chartered by the Regents of the State of New York.  To enable meaningful participation on a local level, NYSSMA is broken into 15 zones. 

In the member’s question, it sounds like a local zone of NYSSMA is asking a local BOCES for assistance.

Since both entities are chartered by the Regents, this makes sense; it’s like your cousin asking if she can store tools in your garage.  Except in this case…you aren’t sure where your cousin got the tools.  Or who might ask to borrow them.

As the member points out, this uncertainly could be cause for concern.  This is particularly true because under copyright law, a license is required to not only duplicate music, but to perform it, so an entity providing unauthorized copies could experience more than one type of liability.

Fortunately, there are many helpful resources to address this, and the basics are set out in plain language on the page of NYSMMA’s national affiliate, the “National Association for Music Educators (“NAfME”).

On their helpful page, found at https://nafme.org/my-classroom/copyright/, NAfME outlines the basics of managing a music library for NYSSMA members. 

As stated by NAfME:

“Unlike most educators, music educators must face copyright compliance frequently throughout their career. Although the thought of copyright can be intimidating and a complex subject, NAfME has a multitude of resources that can help you better understand U.S. copyright law.”

How does an institution considering providing this service get started? Any institution considering housing a music library (or script library, or an architectural plans library, or anything that will be licensed and/or loaned under particular conditions) for another entity needs to do these three things:

            1.  Research and assess the full scope of what will be required;

            2.  When the full scope is known, develop a budget, policies, job descriptions and a contract (or term sheet) to support what is needed; and

            3.  Finalize the arrangements in a way that mitigates risk,[1] and makes the service effective and sustainable.

Since this type of analysis can reveal the complexities of what may seem like a simple service, it is not surprising to hear that at one point a fee was required for it!

As the resources on the NAfME site show, housing and managing a music library is potentially a very detailed endeavor.  And while technology has made some aspects of the tasks involved easier, any institution providing such a service will need to make it a part of someone’s job.

So, after reviewing the basics on the NAfME site, it would be good to have a forward-thinking and specific discussion that addresses the following:

• Whose property are the copies to be housed and managed?
• Are there copies of the original purchase agreements and licenses?
• How is the collection to be searched?
• How is the music loaned out?
• Who tracks copies on loan?
• What is the approach for unreturned copies?
• Who arranges for performance licenses, and who keeps copies of permission granted?
• How are new works accessioned?
• How are copies de-accessioned?
• How are damaged copies replaced?
• What is the value of the collection?
• What is the cost of the service?

In addressing these questions, it is important to note that NYSSMA has access to numerous copyright-related resources as a member of NAfME.  For instance, as noted on the NAfME “copyright” page: “Through an agreement with ASCAP and BMI, NAfME (or MEA) sponsored groups are granted performance rights of music managed by these organizations. (This covers only performances sponsored by NAfME or federated state associations of NAfME.) However, if members wish to record their students’ performance of any work, permission must be obtained through Harry Fox Agency.” 

So awareness of NYSSMA’s rights, as parties explore how they could assist with housing and managing a NYSSMA-owned collection, would be critical.  Solid and well-coordinated compliance with license terms would also be important.

I know this is just the overture to a full answer, but thank you for a well-composed question.[2]

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Flying at 10,000 feet, the answer to the first question is: if the class in in person (not online), AND the institution is non-profit, AND the only viewers are the instructor and the students enrolled in the class, AND the viewing is in the classroom or academic facilities, AND the content is part of the curriculum, AND the copy was legally obtained…then the showing is allowed under Section 110(1) of the Copyright Act (“110”).[1]

The answer to the second question is: if use of the precise copy is controlled by a SWANK license, then despite authorization under 110, the showing must be consistent with the terms of that license.  For that matter, the use of any other content service for viewing movies (Netflix, YouTube, etc.) must also conform to the terms of the service’s license.

Swooping a bit lower to the ground (but not into the weeds): exercising rights under 110 is why it is important that: 1) class syllabi show the relationship of materials to the goals of a course, 2) institutions maintain lists of enrolled students, and 3) institutions have designated spaces for instructional activities.

This is why reading the fine print on content licenses is important, since contractual obligations can over-ride rights otherwise granted by law.

How does a school librarian help instructors stay within the bounds of the law or the license?  A good rule for educational institutions is to have clear and pro-active policies and outreach[2] for instructors who need to show movies.  In this world where education gets hit with new laws, regulations, and policies every year, while clear policies are important, a simple message to instructors: “Need to show a movie in class?  Ask us how!” is a great place to start.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Perhaps because our nation was born resisting taxes, few things can rile a close-knit community so much as a good old-fashioned tax levy.  This is one area where the legal issues might be simpler than the range of human emotions. 

That said, the laws governing a school district’s support for a library can present significant considerations, if not impediments, before it can be successfully deployed.  So let’s fly at 10,000 feet, and look at the lay of the land.

There are relatively few entity types that can levy taxes based on real property,[1] and school districts are one of them.[2]  In addition to facilitating school funding through those taxes (the school budget “levy”), districts are empowered to raise a separate amount for “library purposes.”[3]

This power to tax for the benefit of libraries comes with some very clear conditions.

First, the amount to be raised for the library must be listed as a separate item on the ballot; the voters must see it as distinct from the funds to be levied for the school(s).[4]

Second, if the proposition passes, the funds must be delivered to the treasurer of the library as soon as possible, and cannot be retained or mingled with district funds.[5]

Third, the amount of taxes attributable to library purposes must be separately stated on each statement of taxes.[6]  Voters should be able to easily discern the difference.

Now, here is where things get really interesting.

There are two ways such a proposition related to a library levy can get on a school district ballot: 1) a vote by library’s board,[7] or 2) a petition directly from the voters.[8]  Since 2007,[9] the precise amount of any proposed levy has to be endorsed by the library’s board[10] (this is so competing or even contrary funding resolutions can’t get on the same ballot[11]).  When a library board votes to request it, the proposition must be placed on the ballot—even if it lacks the support of the school board.[12]

This power can be used to the benefit of any public library: municipal, special district, school district, free association, etc.[13]  This is true even if the precise boundaries of the school district and the library’s chartered area of service don’t match up.[14]

How can that be?  Anyone who follows “library world” knows that there are numerous kinds of libraries: municipal (created by and with the boundaries of a city, town, or village), school district, special district (which can cross and combine municipal borders), and free association.[15]  The permutations of these libraries are vast, but all serve their communities without charge, and thus meet the definition of “library” as used in Education Law §259.  And thus, all qualify as a “library” that may be supported by a tax levy by a school district.

Here is how the New York State Commissioner of Education,[16] quoting an earlier case, put it as recently as 2015:

As stated in Earlville, a school district is among those entities enumerated in Education Law §255 and, thus, is authorized to vote taxes “for library purposes” pursuant to Education Law §259(1)(a).  Earlville noted that, “although only those entities specifically enumerated in Education Law §255 may levy a tax for library purposes under §259(1)(a) [citations omitted], there is no restriction in §259(1) regarding the type of library for which such taxes may be levied.”[17]

Voters, of course, are free to reject the request for support (they can also bring a petition to cease the levy[18]). But the mere act of being asked gives the voters a direct opportunity to consider their community’s overall commitment to educational resources.  In library-philic New York, where we treasure books and learning, this is a critical commitment to education, information access, and community advancement.

It is also a serious vote, since once the levy has been established by the school district, it remains in effect each year until there is a vote to have it removed[19] (which, again, can be initiated by the library’s board, or the voters).

As described by the member, boards considering a school board levy are wise to gather (early) ALL the support they can as they plan for a school board tax levy proposition.  The State Education Department’s Division of Library Development maintains a great starter kit for an initiative.[20]  Reaching out to NYLA, as well as other library advocacy groups, can be critical.  And a lawyer with experience in education law (to help draft resolutions, track the paperwork, and have your back when the unexpected[21] happens) is an essential member of your team.

But while you assemble your team and resources, don’t forget “the people.”  As the famous Tip O’Neall[22] liked to say, “All politics is local.”  So while it’s essential to know a tax levy initiative stands on firm legal ground, nothing replaces careful cultivation of support[23] for your initiative.  That is where the allies listed above, and an attorney looking at the specific circumstances of your library (and always the latest case law), are essential.

Thanks for a great question on a very important topic.  Good wishes for a vote that supports democracy, community, and information access.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

On the surface, this is a simple issue: if people are using their cell phone for personal use on the job, a simple policy to stop the use should solve the problem, right?

Not these days.

As technology continues to transform the workplace (and the world), “cell phones away, please,” is not as easy as it once was.  People use their cell phones to monitor health, track their steps, and get emergency calls from kids at school.  Some may even use their cell phones to save their lives, serve as a witness to illegal activity, and exercise their right to free speech. 

Many of these functions depend on the proximity of the person to the phone (or the watch that connects them to it), and because of this, cell phones are becoming extensions of the people who own them.  So a policy to keep them stowed and away, or secured in a locker, can be met with resistance. 

Here are a few examples of how this “resistance” can play out on the job:

• An employee who is the parent of a child with Type 1 Diabetes may want their cell phone on them to keep an eye on their child’s glucose level[1] while the child is at school;
• An employee who being stalked by an ex may want the phone to record evidence to seek a protective order;
• An employee trying to lose weight per a doctor’s orders may be using a supportive app and a Fitbit;
• An employee may want to use their personal camera phone (“it’s better”) to take pictures for the library’s Instagram;
• An employee may need to text their partner to confirm who is picking up the kids, making dinner, and mowing the lawn before it turns onto a meadow;
• An employee may really love to play Candy Crush Saga® when things are slow at the reference desk.

As can be seen, many of the reasons to keep a cell phone on one’s person are compelling; other uses may not be.  And many of reasons/uses overlap with other library policies.

The goal, of course, is not to bar an employee from important connections and a tool for their well-being, but to make sure the use of personal electronics does not distract from the library’s professional environment and employee productivity (even on a slow day).  To achieve that, there are two broad solutions: 1) rely on a collection of policies to address the variety of purposes for personal cell phones while at work; or 2) create a catch-all policy. 

In a work environment where consistency for staff members is critical for professionalism and productivity, I prefer a combination of both.  What does that combination look like? 

It starts with policies for:

• ADA accommodations
• FMLA
• Domestic violence victims’ accommodations
• Workplace violence prevention
• Communications/media
• Use of technology
• Confidentiality of library records and patron privacy
• Employee conduct

…which should all allow for appropriate use of personal cell phones and electronic devices.  This doesn’t mean the policy has to mention cell phones specifically—just have enough flexibility to address them.

At the same time, assuming the above-listed policies harmonize with it, creating a specific “Policy on Use of Personal Cell Phones and Electronics,” as proposed by the member, can help employees and management navigate these issues in a rapidly changing world.

Here is an example of such a policy[2]:

[INSERT LIBRARY NAME] Policy on Personal Use of Cell Phones and Electronics

The mission of the [INSERT LIBRARY NAME] depends on employees maintaining a professional, productive environment. 

To maintain that environment, use of personal cell phones and electronics should only divert employees from work duties in the case of an emergency. 

To achieve this, cell phones and personal electronics should be stored in a carrier, purse, or pocket where the screen is not visible during work time, and watches synched with other electronics should not divert employees from work except during designated breaks in designated break areas. 

Sudden personal emergency needs that require use of a cell phone or other personal electronics should follow the established procedures for use of break time and personal time.

Use of cell phones and personal electronics for ADA accommodations, FMLA arrangements, personal emergency, and personal safety needs are exempted from this policy, and should be arranged on a case by case basis with a supervisor per the relevant policy. 

As with most HR policies, this one sounds simple, but can be complex to administer.  The need to be flexible and allow some cell phone use (especially ADA use, the basis of which may be confidential), can cause seeming inconsistency in enforcement.  To address this, employees must be sensitized to the fact that some people may depend on a personal devise for an authorized (and confidential) use, while at the same time be given the clear message that keeping in touch with social media and personal contacts during work time is not allowed.

As technology puts pressure on the norms of society, it is important to draw (and re-draw) reliable and clear boundaries…especially in the workplace.  So should a workplace have a policy on personal cell phones?  Done right, and with due consideration of the law, it can help.

Thanks for a timely question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

To answer this question, I had to switch things up, and pretend that one day, there I am, sitting in my office,[1] when a barefoot person walks up to my door and asks “I want enjoy my library privileges while barefoot, and they won’t let me.  Can they do that, or can you help me sue?”[2]

If someone actually paid me for a consultation related to this conundrum,[3] here would be my diagnostic process.  For the sake of argument, let’s say that for every question I pose, the answer is, “No.”

• Do you have a disability that requires you to be barefoot?
• Do you hold a sincerely held religious belief that requires you to be barefoot?
• Does this rule disproportionately impact you as a member of a protected class?
• Are you subject to some type of judicial order that requires you to be barefoot?[4]
• Have you observed that other patrons at the library are barefoot, while a rule against going barefoot is being selectively applied to you?

Once I got through establishing that the answer to each question was “no,” I would then likely say: “Well, I am sorry, but whether it’s public or private property, if shoes are required by the library, I see no basis for a claim.”

Of course, the law is always evolving, but right now, simply being “a person who wants to go barefoot,” is NOT a protected category in New York State.  So, whether it’s my house, McDonald’s, or the local (school, association, or public) library, the old rule “no shirt, no shoes, no service,” can still apply.

This right to impose reasonable and uniformly applied conditions for entry—like shoes, shirts, and leaving beverages at the door—is rooted in the concept of real property (ownership of land).  A person or organization that owns land can impose (with varying degrees) restrictions on how others may access it.  And unless connected to an established[5] or fundamental right—like freedom of religion—those restrictions cannot be challenged via lawsuit (although for a library governed by a board, it can be challenged and changed as a matter of policy). 

The concept of requiring certain attire in relation to property is common in New York’s laws, regulations, and case law.  Country clubs may require a formal style of clothing, while barring cleats and spikes indoors.  Children’s camps may require kids to wear shoes (with backs!).  Since this answer gave me an excuse to do the research, I even learned there is a state-imposed dress code for recently legalized MMA (Mixed Martial Arts): man must be shirtless, while women must wear tops (I can’t imagine this gender-based rule will go unchallenged for very long).[6]

Why all this commentary about the law and clothing? I’ll make it clear.  Libraries—whether they are public or private—have the right to require visitors to wear shoes, to wear clothing that covers certain portions of the body, and to check their beverages at the door. This goes hand-in-hand with the right to require that people not play loud music, not be disruptive, and not import disturbing body odor beyond a certain personal zone.[7]

It is important, however, to have a clear and uniformly enforced policy for imposing these reasonable conditions.  The minute a small child is allowed to go barefoot in the library (bad idea!), an adult can try to claim that right, too.  And extreme care should be taken to not adopt policies that can impact protected classes of people (barring head coverings, for instance), unless a lawyer has been consulted in the drafting of the policy, and staff are well-trained on the nuances of enforcement.

So, to bring it back to the member’s question: there is no need for a liability waiver, if your library simply wants to insist that people wear shoes.  On the flip(-flop) side, if a library wants to explore a “barefoot-positive” policy, more than a waiver would be needed to address the risks: a board would have to explore all the risks caused to those not wearing shoes in a place with heavy books, carts, lots of foot traffic, and many tables and chairs.  That risk assessment would consider not only the likelihood of injury, but workplace safety rules, insurance carrier requirements, and the interaction of such a policy with other institution-specific practices (particularly, how often they clean the floor).

Again, this all comes down to the requirements and needs of a particular library, on a particular piece of property, governed by a particular set of rules.  I want to stress: such factors are variable.  The “National Yoga Library,”[8] or a library based around a culture where shoes are left at the door, would have a different perspective on this issue, perhaps insisting on a no-shoe policy (there are some places where it’s shoes that are considered dangerous and unsanitary, which makes sense, when you think what they walk through).  But for most libraries in New York, where for six months of the year our floors are coated in slush and salt, and furniture design presents many a hazard for unshod feet, “shoes, please” is likely the policy of choice.  And it’s okay to insist on it.

Thanks for a great question!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Yes, syllabi and assignments can be protected by copyright, so long as they are of sufficient substance and originality.  

Of course, there is no precise formula for what constitutes “sufficient substance and originality.” However, a freshly-composed assignment of more than a paragraph or two should be enough to qualify for protection, and a typical syllabus—setting forth the course purpose, assignments, means of grading, and class-specific policies—should almost always qualify (even if wrapped up inside a larger institution-wide template to cover academic integrity, ADA accommodations, and grade appeal).

The trick, however, is know who—or what—owns that copyright.  Some institutions will claim ownership, since the content was generated by their faculty (a concept called “work for hire”).  But other institutions will expressly let their faculty own their work-product.  So, there is no one rule for determining ownership, and that means there is not one method for obtaining permission.

But do you need permission?  While that is always nice, in academia (just like anywhere else), not everyone is eager to have their own work assessed, and yet, there must be some way for analysis, commentary, and criticism of that work to be conducted.  Which bring us to every information professional’s favorite copyright concept: fair use.

Fair use is the ability to use copyright-protected materials for purposes of education, commentary, and criticism.  It was designed for projects like the one in this question.  But just like with determining ownership, there can be no cookie-cutter answer, for as one court put it: “Determining fair use is a mixed question of fact and law.”[1]

How can a project like the member’s address this “mixed question?” In a situation like the one presented by the member, here is a good approach:

Step 1:

Generate a careful summary or abstract of the project (which the member has done here), and the data collection methods. 

Step 2:

Consider how many copies of assignments/syllabi the project will need to make, how they will be stored, and the use your project will make of them.  If stored in hard copy, where will the copies be, how many must you create, and how will you restrict further duplication?  If digital, consider how the electronic copies will be accessed and secured, perhaps warning users on a user-limited shared drive to only use the copies for the purposes of the project, and to not disseminate them further. 

Step 3:

With all that assessed (but no copies yet made!), conduct and document a “fair use assessment,” using your institution’s policy and form for fair use (any research institution, or educational institution, should have these; for example, the great library team at Cornell has a well-developed checklist[2] for their faculty and staff to use when contemplating the use or partial use of copyright-protected materials).

Step 4:

If you determine the use will be “fair,” and decide to proceed with making only those copies you need for your project (and include only the content needed to prove your point in any final product) save the fair use assessment documentation, because under Copyright §504, a good-faith belief by a library, archives, or higher ed institution that it is making a fair use of protected materials can limit the damages in the event it is accused of infringement.[3]

So, to reiterate the answer to the core question: yes, assignments and syllabi can be protected.  But to expand from there: that protection should not be a roadblock to an academic work assessing them. While it might present a small “speed bump,” the law of fair use provides options that are consistent with good scholarship practices and rigorous inquiry.

I am curious to see your project’s conclusions.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

VHS-to-digital conversion can open up options for accessibility under the ADA. 

Many people have treasured family memories they need to convert a more accessible format.

A converter can also help with the creation of critical and new works.

This converter will be a really valuable service for your patrons.  But your staff member is right to be cautious.

“Ask the Lawyer” has previously addressed the issue of libraries and patrons making copies under various circumstances (search the “Ask the Lawyer” archives).  In those previous answers, among other things, we reviewed the special rights libraries have to make and convert copies under Section 108 of the Copyright Act, which applies specifically to libraries and archives. 

Those previous answers cover some of the fundamental elements of this question.  They also each include a careful emphasis that patron duplication of audio-visual works (like movies) are mostly excluded[1] from the protections of Section 108, even when the copy is being converted from a medium that is obsolete. 

What does all this mean?  The staffer is absolutely right—commercial movies might be a resource patrons are eager to convert using the library’s equipment. . . And that could create an infringement a concern

Fortunately, Section 108[2] has a remedy for this problem.  So long as the converting machine displays a notice that “The making of a copy may be subject to copyright law,” the library will meet the requirements of 108 to avoid the imposition of liability for unsupervised patron use of the equipment.

The “unsupervised” requirement is critical, here.  If a patron’s use of the equipment is supervised by an employee, or the patron’s behavior makes it obvious that systematic infringement is going on, 108 might not apply[3].

So, a few things to help you be cautious:

1.When setting up the new equipment, select a place where patron privacy can be honored and employees can’t “supervise” the use of the equipment.

2) Posting “The making of a copy may be subject to copyright law” is a requirement to limit the library’s liability for a patron’s “unsupervised” use.

3)  Keep in mind that any obvious copyright violations (like someone stacking an entire collection of BBC miniseries next to the converter and generating multiple DVDs[4] of each one) should be promptly addressed through your patron code of conduct.

Which brings us to the final part of the member’s question: what language, both posted and in a code of conduct, can position a library to observe that last bullet?  Patron codes of conduct generally have copyright infringement sections, but if your library does not, a good start is:

The [NAME] library is committed to maximum content access through the Americans with Disabilities Act, Section 108 of the Copyright Act, Section 110 of the Copyright Act, and Section 107 of the Copyright Act (Fair Use).  However, use of library resources to generate or access copies beyond those rights cannot be supported by our library.  Although patron use of such resources is unsupervised, reproduction equipment such as photocopiers, scanners, 3-D printers, and VHS converters are all marked “The making of a copy may be subject to copyright law.” 

Any observable use of library equipment to access or make multiple copies in violation of copyright, trademark, or patent law is prohibited under this policy and will be addressed as a violation of this Patron Code of Conduct.

Thank you for this insightful question. I hope many weddings, graduation ceremonies, and birthday parties recorded in the 1990s find a new digital life in your library!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This question reminds me of a story told by writer/actress Sarah Vowell in her book, Assassination Vacation. 

When researching in Buffalo for the McKinley chapters, Vowell met a resident with scars caused by a childhood bike crash into a marker related to the McKinley assassination. 

I remember reading this passage and thinking (like any lawyer would): Hmm, who would be liable for that?  And of course, the answer to that liability lies partly in the question: Hmm, who owns this thing in the first place?

Unfortunately, finding the answer is not as easy as crashing your bike into a marker.

The solution starts out simply enough:  property that is “fixed” to land becomes a “fixture,” and title to it runs with the land.[1]  This is why when you buy a new house, the shed, patio, and built-in grill pit (but not the moveable grill) come with it.  And unless something provides otherwise, a historic marker on the property would belong to you, too.

The problem is, there are a lot of “somethings,” that could provide “otherwise.” 

In New York, most historic markers, if controlled by law at all, are controlled by local law (the New York State Museum maintains an excellent summary as to why on their “Historical Markers” page).  And under state law, cities, towns and villages may pass their own rules for designating, funding, and installing markers at historic sites.[2]

Meanwhile, many private organizations exist to support the site-specific preservation of history.  As the member points out, one of the major supporters of this effort is the William G. Pomeroy Foundation (“WGP”), which operated in collaboration with the New York Museum to promote projects to install signs at historic sites.  

As part of that work, WGP does not condition funding on ownership of the marker (quite the contrary)[3].  That is a typical approach.  However, other private funders could insist on some ownership and/or rules for maintenance—conditions that would be controlled by a contract, donor letter, or bequest. 

So, while a good default answer to “Who owns a marker?” is “Generally the landowner,” the only safe answer, before some research, is “It depends.” 

How can a museum, library, or other stakeholder in a local historic marker now what “it depends” on?  There is no one-size-fits-all answer, but here is a process that should help:

Step 1:  Confirm the ownership of the land the marker was installed on (who of course might not be the property’s occupant).

Step 2:  Confirm if any easement or other real property condition controls the area of the land with the marker.

Step 3:  Assess what federal state and local law(s), resolution, or permits (if any), controlled the installation. 

Step 4:  Assess what contractual obligations (grant document, donation solicitation documents, installation permission document, maintenance agreement,[4]  designer/creator document, etc), may relate to the marker.  

Step 5 (optional, but highly recommended):  Take an informal—but thorough—poll regarding who is emotionally connected to the marker, and develop a plan to consider their investment in what comes next.

I know that not all of these steps are easy to do, and that for a third party who was not involved in the installation, Step 4 might be impossible.  But it remains true: to assess the status of an historical marker, you need to know its history.   

As for Step 5…that is more of a “best practice” than a legal consideration.  Over the years, I’ve observed that before undertaking any action that could impact a monument’s physical condition, it is best to know who will write an angry letter if you disturb the patina (or worse, remove it—even if only for a temporary cleaning).  This includes not only owners, but those who feel a connection to and love for the memorial.  When in doubt, it is good to exercise diplomacy!  And who knows, they might chip in on the maintenance fund.

History, property law, and signage are all serious business. 

Thanks for a great question.

CODA

For those considering embarking on a “historic marker” journey, here is form to help make the archivists, librarians, museum directors, history buffs, and lawyers of the future grateful to you. Every project should have a one of these cataloged, and nowadays, perhaps out there in cyberspace.

The [INSERT NAME] Historical Marker Legal Abstract and Dossier

Sponsored by [INSERT NAME OF ORGANIZATION]

This form is for use when planning and generating a final file for the development, installation, and maintenance of an historic marker.  This project might not require all the items below to be completed.  When an item does not apply, enter “N/A” for “not applicable.”

Marker name:

Marker text:

[Attach picture of Marker]

Address of property Marker is located on:

Owner of property at time of installation:

Survey of property with Marker location noted: [attach after noting location on copy]

Attached signed copy of agreement with property owner:

          [if easement or other property right granted, attach]

Installation start date:

Installation completion date:

Insert Description of Maintenance Plan or attach copy of plan:

Is there any money held in trust or budgeted for future maintenance?  If so, please describe:

Federal law passed under:

          [Attach copy of law and, if relevant, resolution or permit]

State law passed under:

          [Attach copy of law and, if relevant, resolution or permit]

Local law passed under:

[Attach copy of law and, if relevant, resolution or permit]

Insert name and address of Funder 1 and attach copy of funding letter, grant contract, or bequest document:

Insert name and address of Funder 2 and attach copy of funding letter, grant contract, or bequest document:

Insert name and address of Funder 3 and attach copy of funding letter, grant contract, or bequest document:

Attach copy of any fundraising solicitation:

The Marker’s designer was:

[Attached contract with designer]

If there is a graphic, who owned the copyright?

The Marker’s fabricator was:

[Attached contract with designer]

Did the Organization’s board pass a resolution regarding the Marker?  If so, attach a copy.

Did the Organization enter into a collaboration agreement to organize and effect the Marker?  This would include a co-sponsorship agreement, an agreement to coordinate different aspects of the project, or an effort to coordinate property ownership, permissions, or endorsements of the project. 

If such an agreement was entered into, please attach.

Name of person filling out form:

Complete file with all attachments is located at____________________________.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Library employees should not feel compelled to mediate the production of materials that target any protected category (including race), and in fact, feeling compelled to do so would risk potential illegal harassment of the employee.

There is of course a very fine first amendment and ethics line here.  A library cannot have a policy restricting access to library resources solely on the basis of viewpoint. However, if any employee considers the materials to be genuinely discriminatory (to themselves or others), they can report the behavior, and the library must take corrective action, including asking the person to desist the behavior.  This is because being compelled to view, help create, and handle such materials can create a "hostile environment" for the employee or patrons—or both.

To help create a balance between a patron’s right to confidential library services, access to resources, and the rights of employees and patrons to be free from a discriminatory environment, it is worth considering adopting a corollary to a library’s anti-discrimination policy, such as:

To ensure adherence to state and federal anti-discrimination laws, library resources (including staff assistance, production resources, and public areas) may not be used in a way that discriminates on the basis of age, race, disability, predisposing genetic condition, gender, sexual orientation, religion, national origin, race, veteran status, or domestic violence victim status. 

Examples of violations of this policy include, but are not limited to:

• Viewing discriminatory material in locations or on screens easily viewed by others
• Requesting staff help to print discriminatory material
• Using a library room to host a meeting that limits attendance based on a protected category
• Violation of a domestic violence victim's protective order

This policy works with the "Library Bill of Rights" and shall never be interpreted to deny or impede access to library collection materials or materials via inter-library loan.

Violation of this policy shall be considered harassment and concerns about the application of this policy shall be addressed through the library's discrimination policy and the library's [Code of conduct.]

Attention to matters like the question posed by this member is critical in 2019 (and beyond) because this year the NY Legislature greatly expanded the scope and control of the NY Human Rights Law (“HRL”).

The HRL is the state of New York’s mirror image—and significant extension—of several federal civil rights laws.  HRL has always barred discrimination on a number of enumerated categories,[1] but this year, the Legislature broadened it again.  So developing materials and training staff to balance library services with civil rights has only grown more mission-critical.

Thank you for this important question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

As the member shows here, there are a lot of questions within the big issue of “contributory infringement” via use of the internet in libraries.  And because they all relate to legal liability, they are scary for library staff and leadership.

To take the edge off that fear while defining “contributory infringement,” please enjoy this bad joke:

“Knock-knock.”

“Who’s there?”

“Contributory infringer.”

“Contributory infringer who?”

“Contributory infringer who is liable if, knowing of infringing activity, induces, causes or materially contributes to infringing conduct of another.”

Ouch.  Sorry.  I know that really wasn’t funny.  I have been teaching knock-knock jokes to my 5-year-old daughter, and they are harder to write than you’d think. 

But while the joke was bad, the definition was good.  So, what is “contributory infringement?”  All (bad) jokes aside, contributory infringement—when a person/entity aids to infringement—is a recipe for serious liability, with the contributor “jointly and severally” liable along with the main infringer.

And yes, as the quote from the MPLA says, unlicensed exhibitions of movies in a library can result in a finding of liability for the library. However…

The MPLA is representing an industry.  This “warning” statement is a good example of an industry taking advantage of the complexity of the law to issue a statement that, unless carefully unpacked, will make the reader fear assertions that are grossly overbroad. 

Deconstruct the statement.  As the member fears, at a superficial level it seems to state that every copy of motion picture content accessed through a library’s wi-fi and played on any device might be a “contributory infringement” without a license.  Ouch.  That would be a recipe for disaster, indeed. 

But this is a typical industry over-step.  Fortunately, we fight such over-steps with information, and information is the librarian’s stock-in-trade.

Entire books, law journal articles, and Supreme Court opinions have been written on this topic, but I am going to focus on three bits of practical information that address the member’s concerns.

First, there are obviously sections of the Copyright Act that allow performances of audio-visual works in a library that would otherwise be infringing: Section 107, 108, and 110,[1] depending on the circumstances (including the type of library) can all apply.  I won’t unpack these sections here—the applications are too fact-specific—but let’s just say: “There are ways.”

Second, a user accessing content on a library computer may be doing so under their own personal license (Hulu being a possible example).  There is no requirement[2] in the Hulu license that a user access their personal Hulu account on a device they personally own; in other words, there is no concern if they access it on a library computer (so long as it is only for personal use).  On the flip side, there is no permission from Hulu to use my personal account, via my personal computer, to show a movie to 20 unrelated people and charge admission. So, it’s not so much about the streaming, as what I do with it.  This will vary from platform to platform, but the conditions of use will be in the license.

The third factor is the most important for this question, and is what the rest of this response is about, since it applies to the majority of the member’s hypothetical concerns.

To combat the fear that any re-posting or access to audio-visual copyrighted material via a library user account, website, database, or wi-fi connection is a potential infringement the library could be contributing to, every library should register under the Digital Millennium Copyright Act (“DMCA”), and have a policy for responding to reports of infringement.

Why?  Because under the DMCA, service providers may avoid liability for copyright infringement that occurs "by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider." [3]

This arrangement allows services like news aggregators (think Huffington Post), content providers (think YouTube) and internet access providers (think Verizon) to function without performing a chilling gate-keeping function, giving them what’s called a “safe harbor” from contributory infringement. 

To qualify for this “safe harbor,” a library must be ready to show that it:

(A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement . . ., responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

So powerful is this “safe harbor,” that sites hosting infringing content are routinely found non-liable, so long as they designate a DMCA “agent” with the Copyright Office and meet the above elements[4], and can show they acted promptly when the agent was notified of alleged infringement.

Of course, any library considering this approach must do so with its eyes wide open.  The DMCA is not beloved by libraries; the ALA has some choice criticism of the advantages the “notice and takedown” process gives content owners, and the rough road the process presents to fair use.[5]  Nevertheless, the DMCA remains a legal tool that addresses all of the member’s hypothetical concerns and solutions.

To illustrate, let’s run through the member’s examples a bit. 

First, the member lists the different types of technology access and use that could be used as a basis for a claim of contributory infringement.  The member is right to be concerned, because regardless of the ownership or type of device used in the library (library computer, or patron-owned device, phone, tablet, desktop computer), if an unlicensed movie is being shown at the library (with or without the use of library wi-fi), it runs the risk of being an infringing performance.[6]  But so long as the library is not aware of someone using the library’s wi-fi or website to show, post or share infringing content (or the use is not so flagrant that the library “should have known”), and the library meets the other elements listed above, DMCA “safe harbor” can apply.

Of course, this means the library must be able to show it does not have “actual knowledge” that an infringing performance is happening.  If the library is hosting obviously infringing activity (like a person sitting on top of the reference desk ripping movies in plain view while singing “I am pirating a copy of “Lego Batman, hooray!”), “safe harbor” might not apply.  But if the library is hosting someone quietly accessing a copy of “Lego Batman” on their personal computer (perhaps with a future fair use defense due to using the content in a documentary on deconstructing traditional notions of masculinity via comic-book-based animated children’s movies), and the library has no knowledge of the action, it would be tough to show “actual” knowledge. 

NOTE: again, this tension, and the fact that what looks like infringement can often be a fair use, is one reason the ALA and others have an issue with the DMCA.

How does a library relying on the DMCA determine the line between genuine lack of awareness and what it “should know”?  A library’s bar on using library resources for obvious and intentional copyright infringement should be in both its internet use policy, and its patron code of conduct.  “Obvious and intentional” use of library resources to infringe copyright can include:

• Making multiple unauthorized copies of articles;
• Screening movies to a group without a license;
• 3-D printing patent-protected medical devices.

These examples all bring serious intellectual property concerns, and libraries must be positioned through policy to deal with them.  But through a combination of the DMCA and respecting patron privacy, libraries do not need to consider blocking access or specifically restricting specific content to avoid contributory infringement.[7]

It’s an imperfect balance, to be sure.  The ALA and others are right to hold the line on concerns with the over-use of the “notice and takedown” provisions of the DMCA.  But within that imperfect system is the secret to the member’s concerns.

The member’s final three questions are:

Does this mean that we have to block access to these sites or provide proactive messaging at each computer, and/or monitor their computer use?

Should messaging that addresses this issue be included in our wi-fi and/or computer use policy?

Is this something that if we provide computer screens or privacy walls we would reduce or eliminate our role as a contributory infringer?
The answers to these questions are:

• To limit liability under the Copyright Act, there is no requirement to block, seek out, or repeatedly warn against infringement.[8]
• That said, outright theft of intellectual property should be prohibited through library policy and internet/computer access agreements, and observable violations should be addressed through a patron code of conduct.
• Liability for contributory infringement can be reduced by following the DMCA.
• Policies and design that ensure the privacy of users and the confidentiality of patron records can contribute to the reduced liability brought by the DMCA.

Thank you for a good, complex question.  For libraries that have not yet done so, a DMCA policy and registered agent are worth (very carefully) considering.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

It makes sense that “Ask the Lawyer” gets a lot of Americans with Disabilities Act (“ADA”) related questions.  After all, both the ADA and libraries work to reduce barriers—barriers to information, barriers to education, and barriers to services/employment.   

The issue of fragrance sensitivity and ADA compliance brings unique challenges. 

For people living with this disability, the stakes are high: itching, burning, sneezing, rash, nausea, headache, and breathing problems can all result from exposure to even small amounts of fragrance in the air.  And there is no reliable way to predict what precise product might carry the triggering chemical, scent, or compound.[1]

To drill down into the member’s question, if the sole concern the patron has raised has been about access to the bathroom, then it may be that this sole adjustment was sufficient.  However, I have found it is best to work through ADA accommodation issues from a broader perspective, by asking: within attainable, affordable and (thus) reasonable measures, are we doing all we can to reduce barriers to access?

In a bathroom, this could be limited to removing a scented air freshener, as the member has done.  However, it could be that in addition to the air freshener, particular cleaning products, ambient scent entering the bathroom via the air ducts, and other fragrances (some of them on people) are invading the space and triggering the negative impacts.  In that case, the key is to reduce all fragrances in the space (within the bounds of what is “reasonable”), perhaps by:

• changing cleaning products
• changing the HVAC system
• having a scent-free policy

--all of which could be considered an accommodation under the ADA.

Not all of these accommodations, however, are automatically “reasonable.”  Switching cleaning supplies could require a negotiation under the standing contract with a professional cleaner—or could be as easy as selecting fragrance-free products.  A small library with an annual budget of $150,000.00 would find it too expensive to re-route the HVAC at a cost of $200,000.00—but perhaps could install a small window fan, drawing in fragrance-free air, for a much lower (and thus reasonable) cost.  And the “reasonableness” a fragrance-free policy will depend on several factors, based on who it impacts.

A “fragrance-free” policy can be imposed upon employees after due consideration of overall working conditions, any union agreement, and related policies.  However, a “fragrance free” policy for the visiting public poses broader difficulties.  As just one concern: while most libraries will find it reasonable to address extreme hygiene issues that impact everyone (like visitors who may bring the pungent odor of fecal matter[2]) through a “Patron Code of Conduct” to, a facility-wide “fragrance ban” could (ironically) impose limitations on library access.

This is where design—and well-crafted library-specific policy—can help out.  Depending on the library, a climate-controlled area with separate HVAC or windows can be set aside as a “fragrance-free” area.  A sign could say “This area is designated as fragrance-free.  Please observe this restriction in consideration of fragrance-sensitive patrons.”  For libraries considering updating their facilities, although not currently required by current (2010) “Standards for Accessible Design[3],” a room with adequate heating/ventilation/ac (“HVAC”) to achieve this separation is worth considering.

As someone who is addicted to Lush’s “Dirty” body spray (spearmint and tarragon, just the thing to spritz after a stressful day of lawyering[4]), I realize it is easy to write about creating a scent-free space, and hard to navigate the human aspects of policing one.  Further, as discussed, there is no one-size-fits-all approach. The bottom line for compliance is: within the limits of what is financially, operationally, and physically feasible at your library, consideration of a fragrance-free environment should be made.  When the access under consideration is for a bathroom, access to the accommodating facility should be clearly designated, and a bar to fragrances should clearly apply to the space.

A great resource for starting this fragrance-free journey, including sample language for when considering a policy, is https://askjan.org/disabilities/Fragrance-Sensitivity.cfm?.  As always, before using cookie-cutter language, it is best for a library to check its charter, bylaws, other policies, lease, and any union agreement before crafting their own, unique policy to meet the needs of their community.

I hope this answer passes your “sniff” test.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

It's a musical double act at “Ask the Lawyer” today!

Libraries are hitting their stride as community centers and curators of cultural experience, so it is no surprise that live musical performances are being offered as part of their programming and outreach.

These two members’ questions arrived within one week of each other. 

The first question is like a good pop song: a straightforward premise, with an array of practical (but catchy) sub-questions. 

The second is more like the best jazz performance: concerned with the “notes that aren’t there,” and basically asking: “what could go wrong?”[1]

To address both submissions, Ask the Lawyer presents: “Ask the Lawyer Library Live Musical Performance Matrix,” and some additional guidance, below.

There are a few things I am sure you’ll notice in this chart:

First, I keep mentioning having a “contract.”  No performance should be given in a library (or at a venue with sponsorship by the library) without a contract that confirms the date, performance fee (even if free), intellectual property considerations, public relations/promotion/image release, contingencies for cancellation, and clauses that address liability for any injuries or legal claims based on the performance. 

This need for a performance contract applies to any library arranging for a speaker, musical act, magician, artists or other third party (non-employee) to bring programming to your library.  For acts that bring risk (of alleged infringement, personal injury, etc.), the contract should require the contracting party to provide a certificate of insurance, and to indemnify the library for any damage caused by the performer.  

The contract does not have to be extensive, but it should cover the fundamentals listed above.  It can require that the performer obtain all necessary permissions, or can provide that performance licensing be covered by the venue (with a license from ASCAP or BMI).  A good general practice lawyer who handles performance and liability issues should be able to develop a template for your library (although even a good template will need to be adjusted from time-to-time).

Second, you’ll see an array of factors in the chart above, like “performer not paid,” or “it’s a musical!?!”  These factors are drawn from 17. U.S.C. 110 (4) (a part of the copyright law), which allows certain charitable uses of non-dramatic literary or musical works without a license.

Here is the complete text of 110(4):

[The following is not an infringement of copyright]

(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if—

(A) there is no direct or indirect admission charge; or

(B)the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions:

(i) the notice shall be in writing and signed by the copyright owner or such owner’s duly authorized agent; and

(ii)the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and

(iii)the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation;

This section of the Copyright Act was crafted with just the members’ type of event in mind.  As usual with Copyright law (which giveth and taketh away, when it comes to fair use and other infringement exceptions) careful reading and careful attention to details is important before relying on an exception.  But if you document meeting all the factors, 110(4) is a great boon to libraries (and other charitable organizations and efforts).[3]

So as you see, with some careful attention to details, a show can go on.  Or as these slightly modified lyrics (fair use!) from the great Shannon (circa 1983![4]) summarize:

Let the music play.

But what’s the venue say?

If there’s a license you

Can play other people’s tunes.

Let the covers play

If your library doesn’t pay,

and don’t transmit your groove

Then the tunes are free to use.[5]

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This question has two parts, so I will re-state them for clarity:

Is it legal to forward that charge on to the patron as they are the party who cancelled the service?

Answer: no.

If this behavior becomes habitual (a request is made, the patron cancels past the 48 hour minimum time frame, we get invoiced), does the library have any recourse per ADA compliance law?

Answer: yes.

For more on both of these, see below!

This submission to “Ask the Lawyer” is a good companion to a recent query about arranging ASL interpreters, posted under the title “ADA Compliance When Screening Movies” (we’ll call it “Screening Movies”), on January 7, 2019. 

“Screening Movies” sets out some of the fundamentals of ADA compliance in the ASL interpreter realm, so as a foundation for the answer to this question, please take a look at it for some essential background.

[We’ll pause while you read “Screening Movies” and absorb the basics.]

Okay, have you got the fundamentals of ASL-related ADA compliance?  Great!  Now we’ll move to the advanced work required by these questions.

The answer to the member’s first question is “No,” because, per federal regulations[1]:

 (c) Charges. A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids….

While any regulation is of course open to interpretation, the United States Department of Justice—the body charged with enforcement of the ADA—offers this commentary on surcharges related to accommodations:

One medical association sought approval to impose a charge against an individual with a disability…where that person had stated he or she needed an interpreter for a scheduled appointment, the medical provider had arranged for an interpreter to appear, and then the individual requiring the interpreter did not show up for the scheduled appointment. Section 36.301(c) of the 1991 title III regulation prohibits the imposition of surcharges to cover the costs of necessary auxiliary aids and services. As such… providers cannot pass along to their patients with disabilities the cost of obtaining an interpreter, even in situations where the individual cancels his or her appointment at the last minute or is a ‘‘no-show'' for the scheduled appointment. The… provider, however, may charge for the missed appointment if all other[s] … are subject to such a charge in the same circumstances.

In other words, cancellation fees or other obligations imposed upon the general public can be equally applied to those who require ADA accommodations, but any charge specifically related to an ADA accommodation cannot. 

There are, however, several ways to address the need of Deaf and Hard-of-Hearing users to change their arrangements.

1.  Renegotiate your interpreter contract to shift away from cancellation fees

This of course requires cooperation by your ASL agency, but it is feasible. 

One approach is to use a contract that guarantees a base or “stand-by” rate that is assured to your provider (regardless of utilization). For example, for $####/year, your organization gets ### hours of services, in up to ### separate instances; this amount is paid not matter what. 

This gives both your library, and the provider, some fiscal stability as you serve the needs of your community.  It is an approach that might not work for libraries with small budgets, but collaboration with a system, council, or network can sometimes use this approach.

2.  Renegotiate your contract to tighten the cancellation window and reduce the fee

24 hours’ notice and a cancellation fee (not paying for the whole service value) is much more reasonable!

Again, this requires cooperation by our agency, and in you location, it might be a seller’s market.[2]  But it doesn’t hurt to negotiate![3]

3.   Know your budget

As described in “Screening Movies,” the obligations of libraries will vary wildly from institution to institution.  What might be “reasonable” to a large urban library might be an “undue burden” [4] for a small village library with a much smaller budget.  But no matter the size or budget, as “Screening Movies” states, every library should have an accommodations plan—and that plan should have a line in the library’s budget.

When a library has a budget for routine ADA accommodations (as opposed to one-time capital improvements or ad hoc needs of employees), it can help provide users with meaningful information about the libraries ability to provide those services.  It can also position your library to show if the cost of an accommodation truly would be an “undue burden,” (and thus not an obligation) as defined by the ADA.

For members of the Deaf and Hard-of-Hearing communities, access to information is critical, and a public library’s commitment to assuring it is vital. 

The member’s foresight and attention to stewarding this resource and making it as accessible as possible is exactly what is required.  And as can be seen, just as critical is finance committee and budget input on how to make the most of assets and budgets that help assure access and legal compliance.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This member is thinking ahead!

Starting June 29, 2019, any space within a 100-foot perimeter around a public or association library, including adjacent businesses, is subject to a state-wide smoking ban.  The sole exception is residential properties (inside and out).

Any person or business violating this new ban may be subject to a $2,000 fine.[1]

This new law is part of Section 1339-o of New York’s Public Heath Law.  It reads:

Smoking shall not be permitted and no person shall smoke within one hundred feet of the entrances, exits or outdoor areas of any public or association library as defined in subdivision two of section two hundred fifty-three of the education law; provided, however, that the provisions of this subdivision shall not apply to smoking in a residence, or within the real property boundary lines of such residential real property.

This is a powerful new law, and it has many libraries thinking about implementation.

As the member’s question illustrates, complying with, taking advantage of, and rolling out this new law may take some effort—as well as some tact and diplomacy. 

Here are some tips for a graceful transition (and how to not ignite the fuse of nearby, non-residential smokers and their landlords):

First, some new signage can go up, alerting people to the impact of the new law. Per Public Health Law Section 1399-p (“Posting of Signs”), smoking signage should meet the following requirements:

“Smoking” or “No Smoking” signs, or “Vaping” or “No Vaping” signs, or the international “No Smoking” symbol, which consists of a pictorial representation of a burning cigarette enclosed in a circle with a bar across it, shall be prominently posted and properly maintained where smoking and vaping are regulated by this article, by the owner, operator, manager or other person having control of such area.

Signage to assist with compliance should add “…within 100 feet of this boundary.  NY Public Health Law 1399-o.”

Second, it might be helpful to amend or create library’s policy on smoking so it states:

Per Section 1399-o of New York’s Public Health Law, it is forbidden to smoke within 100 feet of library property (except for residential properties).  To promote compliance, the library will maintain signage consistent with Section 1399-p of that law, and will work with impacted neighbors to enforce and encourage compliance with this law.

Third, a simple plan of outreach to “impacted neighbors,” can help your library collaborate on compliance (instead of waiting for a clash of employees or customers).  This is not a legal requirement, but it is the type of law-based, thoughtful, pro-active rollout can forge and maintain healthy neighborhood relations. 

Part of such a “Smoking Ban Rollout Plan” could include a letter such as:

Dear [Non-residential Neighbor within 100 fee of library property]:

As you may know, effective June 19, 2019, New York’s Public Health Law makes it illegal to smoke within 100 feet of a public or association library like the [NAME] Library.  The sole exception to this law is a residential property.

As you can see on the attached map, your property is within 100 feet of the library’s.  Please let us know of any concerns you have about alerting your [employees, customer’s, etc] to the requirements of this new law.  Please also let us know who we may contact it the event of a concern.

Our board and library staff are working to alert everyone and make sure our transition to this new law goes smoothly.  [We are installing new signage, as well.]  If you need to discuss any aspect of this, please contact [name] and [number or email].

Thank you for your consideration!

Sincerely,

Your friends at the [NAME] Library

Any contact with neighbors should bear in mind that under the law, certain facilities (ironically, hospitals and residential health care facilities) are allowed to “designate” a smoking area on otherwise-non-smoking premises (this might be the scenario in the circumstances described by the member).  Further, if a business or person can allege an “undue hardship,” they can request a waiver of a smoking ban under Section 1399-u.[2]  Since you don’t want a confrontation to spur a request for a waiver, “friendly outreach” is a good tone to strive for.

And finally, it is good for your library to consider that enforcing a smoking ban can cause a lot of stress, and use up a lot of director and staff energy.  Think about it: Librarians already have to be on the lookout for illegal porn use, opioid overdoses, and destruction of library property.  Now they have to patrol for neighborhood smoking, too?  That’s a lot of social work for someone who just wants to help the world find information. 

For those moments, in addition to your library policy, a short statement endorsed by the board, for staff can hand out, might be helpful.  Something like:

Consistent with New York’s Public Health Law (Section 1399-0), there is no smoking allowed within 100 feet of the [NAME] library.  Thank you for supporting New York State’s public health initiative, and helping our library honor this law. –The Board of the [NAME] Library

When facing a needy[3] smoker, backup from both the state, the law, AND your board can be a great morale booster.

Libraries should also note: while Section 1339-o of the Public Health Law bars smoking AND vaping in many areas, this new library-specific section (section 6) bars only SMOKING[4] (and yes, under the law, “smoking” and “vaping” are distinguished.[5]  “Smoking” means “the burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco.”  “Vaping” means “the use of an electronic cigarette.”).  So in addition to the compliance steps outlined above, get some binoculars, so you can be ready for some precise enforcement!

So that’s it.  Libraries needing to check their property line maps to establish their 100-foot perimeter can use their property survey and the county’s tax maps (this is also how you can check for a property’s actual owner, in addition to simply observing and notifying their tenants).

I wish every public and association library in New York smoke-(but not vapor)-free property lines!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

In the state of New York, library records linked to the names of users can only be disclosed:

1) upon request or consent of the user;

2) pursuant to subpoena or court order; or

3) where otherwise required by statute.

Therefore, the strong default answer to the member’s questions is “NO.”

This strong default position is based on New York Civil Procedure Rules (“CPLR”) 4509, which states:

Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute.

[emphasis added]

But when it comes to the records of minors at a school serving minors, after this omni-present strong default, there are some additional factors to consider.

FACTOR #1

Does the school condition library privileges on express parent/guardian access to library records?

Under CPLR 4509’s first prong (“consent of the user”), some libraries may condition library use by a minor on permission to share library records with parents/guardians. 

This condition is not invisible or automatic; it would need to be in the cardholder agreement signed by the student, or in a written school policy passed by the school board.  It must be clear, and in writing.

There is much vigorous debate about what level of parent/guardian access it is appropriate to condition library privileges on.[1]  But since such conditioning is allowed by the law, setting the appropriate balance between privacy and access is the job of the library and its leadership.

The bottom line on this factor? If a school library has an express, written policy allowing it,[2] and if that policy also complies with the school’s obligation’s under FERPA (see below), a list of titles checked out may be disclosed  to parents in conformity with CPLR 4509.

FACTOR #2 

Does the school regard library records as “education records” under FERPA?

The member’s questions warrant three considerations vis-à-vis FERPA (“Family Education Rights Privacy Act”), a country-wide law which applies to any educational institution receiving federal aid.

First FERPA consideration: Are the school’s library records accessible as “education records” under FERPA?

Because it is famous for protecting privacy, people generally think of FERPA as a bar—not a means—to information.  But FERPA expressly allows parents and guardians of students under 18 (unless the minors are attending a higher ed institution) to “inspect” “education records,” and, under the right circumstances, allows disclosure of education records to school administrators. 

A list of titles borrowed from a library, if maintained in a way that meets FERPA’s definition of “education records” could be subject to such inspection and disclosure. 

So let’s look at that definition:

[Information]

(1) Directly related to a student; and

(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.[3]

That’s a broad definition!  But several categories of information are exempted from it, including:

 (i)  records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute;[4]

Under this exception, school library records, if kept in a certain way (with only the librarian, or “substitute,” having access to the records, and the information not linked to or accessible to others, including the student), are arguably exempt from FERPA. 

What’s the take-away, here?  It is possible—but not a uniform rule—that school library records are “education records” under FERPA.  Determining if they are should be part of a school’s annual FERPA notice and policy work, and should be a consideration when a school library considers automation options. 

Second FERPA Consideration: If a school determines their library records DO qualify as “education records,” does a school administrator, safety officer, or SRO[5] have a right to access them under FERPA?

Even if the library records at a specific school qualify as “education records,” when it comes to school administrators, there are only two instances where disclosure is allowed.

The first instance is created by FERPA regulation §99.3.  It allows “… disclosure … to other school officials…[if the disclosure is in the student’s] legitimate educational interests.” 

With regard to a request for a list of borrowed library books, this means there must be a direct, pedagogical reason to disclose that particular list to that particular administrator, safety officer, or (if their contract has the right provisions) external personnel.  To determine if those individuals’ access is in the students “legitimate educational interests,” consideration of the unique circumstances is required, but it comes down to: how does this serve the student?  

The second instance is created by FERPA regulation §99.36.  This regulation allows an educational agency or institution to “disclose personally identifiable information from an education record to appropriate parties… in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.”

Under extraordinary circumstances, this exception could be cited to justify disclosure of education records to an administrator, safety officer or SRO addressing a concern about immediate health or safety. 

But the circumstances warranting the disclosure would need to be—as I say—extraordinary.  Congress and the U.S. Department of Education want this to be a very narrow exception tied to imminent threats:

The Department has consistently interpreted this provision narrowly by limiting its application to a specific situation that presents imminent danger to students or other members of the community, or that requires an immediate need for information in order to avert or diffuse serious threats to the safety or health of a student or other individuals. [6]

Such a “health/safety” analysis—especially if used to justify disclosure of library records—will be highly fact-specific.  Whenever possible, it should be done in consultation with the school’s attorney, with careful consideration of the precise circumstances and any relevant policies (by the way, this is the kind of “now or never/critical” question school attorneys cancel meetings to research and answer promptly).

Third FERPA consideration: if a school determines their library records are “education records,” CPRL 4509 may still bar parent access under FERPA.

And finally, there is also a possibility that even if a school’s library records are “education records,” under FERPA, library records in New York schools are barred from being shared (without consent) with parents/guardians by CPLR 4509. 

I base this on §99.4 of the FERPA regulations, which states:

An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.[7]

In New York, we have just such a “State statute:” CPLR 4509.  When it was adopted, its role was described as follows:

The New York State Legislature has a strong interest in protecting the right to read and think of the people of this State. The library, as the unique sanctuary of the widest possible spectrum of ideas, must protect the confidentiality of its records in order to insure its readers' right to read anything they wish, free from the fear that someone might see what they read and use this as a way to intimidate them. Records must be protected from the self-appointed guardians of public and private morality and from officials who might overreach their constitutional prerogatives. Without such protection, there would be a chilling effect on our library users as inquiring minds turn away from exploring varied avenues of thought because they fear the potentiality of others knowing their reading history.[8]

Those are some stirring words about privacy.  They show what the Assembly’s intent was when CPLR 4509 was passed. 

That said, this potential conflict between CPLR 4509 and FERPA has not been tested in a court of law.[9]  This position is not something a school should  adopt or rely on without consultation with their own attorney, as part of their annual FERPA notice and policy work.

But it is definitely something to consider.

Final FERPA Consideration: how to resolve a FERPA question when state and federal law conflict.

The good news in all this 4509/FERPA complexity is that FERPA itself anticipates this type of conflict and resulting concerns.  FERPA Regulation §99.61 states:

If an educational agency or institution determines that it cannot comply with the Act or this part due to a conflict with State or local law, it shall notify the Office within 45 days, giving the text and citation of the conflicting law.

In other words, the U.S. Department of Education knows schools will be wrestling with these issues!  A school that makes a good-faith determination of non-disclosure under FERPA (always with the advice of their attorney) can follow this policy for reporting a conflict.  The USDOE will write you back, even if your concern is policy-driven or hypothetical.

Conclusion

Since school libraries—which are legally distinct from libraries at colleges and universities—are specifically named in CPLR 4509, there is no doubt that 4509’s strong bar on disclosure applies to schools where minors are in attendance, while the law is silent about access of guardians/parents to their children’s library records.

The best way for a school library and its leadership to handle these questions is in advance, by having a policy that respects student/family rights, and the operations of the library. 

A good school library “Confidentiality of Library Records” policy will protect student privacy, educate students about their right to privacy, coordinate with the school’s position under FERPA, consider student and employee well-being, and position the library to operate properly. 

Creating such a policy is an exercise in staff teamwork and aboard responsibility.  Considering the complexity of the different factors at pay, I urge school librarians and their leaders to review these considerations with their own attorneys, and to work with their boards to adopt policies that reflect the legal position and the educational priorities of their institutions.

Thank you for these important questions.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

The relationship between a person and their streaming content service is almost always[1] governed by a type of contract called a “license.”

As the members states, such a license (often accepted by clicking to accept terms left unread) can over-ride the infringement exceptions like those found in 17 U.S.C. §§107, 108, and 110.[2]

In other words, once a user voluntarily agrees to a contract restricting use of content, rights they may have once by law may become inaccessible.

Use of streaming content in the educational setting is a good example of this.  While Section 110 of the Copyright Act may allow a teacher to show a movie in class (if the movie is shown in the physical classroom and if the content is part of the curriculum), that same movie might not be accessible under the teacher’s Netflix license.

Why? Content providers change the terms of licenses all the time, but one thing is pretty constant: restricting subscription access to personal use.

Here is how Hulu puts it:

3.2 Your License. Hulu is pleased to grant you a non-exclusive limited license to use the Services, including accessing and viewing the Content on a streaming-only basis through the Video Player, for personal, non-commercial purposes as set forth in these Terms.

Netflix has a similar-sounding restriction.  Even the “Educational Screenings of Documentaries” the member references (found at https://help.netflix.com/en/node/57695) license is pretty narrow (and actually a shrewd PR move for a commercial service):

Educational screenings are permitted for any of the documentaries noted with this information, on the following terms:

The documentary may only be accessed via the Netflix service, by a Netflix account holder. We don’t sell DVDs, nor can we provide other ways for you to exhibit the film.

The screening must be non-profit and non-commercial. That means you can’t charge admission, or solicit donations, or accept advertising or commercial sponsorships in connection with the screening.

Please don’t use Netflix’s logos in any promotion for the screening, or do anything else that indicates that the screening is “official” or endorsed by Netflix.

We trust our users to respect these guidelines, which are intended to help you share and discuss our documentary content in your community.

To the extent your institution requires you to demonstrate that you have a license for your screening, please show them this page.

So there you have it: the only Netflix content that may be shown for classroom use is, as the member states, per this permission.

But (to address the other part of the member’s question) what are the consequences for not abiding by the license?  Is there a growing body of case law to show the fines, terminated accounts, and jail time[3] people are doing when they violate the terms of their streaming service license?

There is not. 

Why?  Most of these license agreements have arbitration clauses, meaning that disputes are settled without the publicly accessible process found in a court of law. 

Here is part of the arbitration clause from Netflix:

7.1. If you are a Netflix member in the United States (including its possessions and territories), you and Netflix agree that any dispute, claim or controversy arising out of or relating in any way to the Netflix service, these Terms of Use and this Arbitration Agreement, shall be determined by binding arbitration or in small claims court. … Arbitrators can award the same damages and relief that a court can award…. [4]

So there may be a number of instances where a license has been violated, and Netflix has sought “…the same damages and relief that a court can award” via arbitration.  But I don’t have access to that information.  Most of us just don’t know.[5]

I do know, however, that violating a license is wrong, and can have consequences. [6]  Further, I would hope that in the educational setting, modeling casual disregard for personal contractual obligations is not encouraged.

Teachers are usually barred by the contract from streaming Netflix services from their personal account in the classroom.  Unless there is an express license to the school from a streaming service, or for a particular film, I encourage teachers to obtain physical copies of films/DVD’s from the library, and play them in class on a good old-fashioned TV and DVD player, as Section 110 of the Copyright Act allows them to do. 

Thanks for this perceptive question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

When this question came in, I called the member library to get a bit more information: What was the song?  Would the video would be used for fund-raising?   How is it being put together?

You know…boring lawyer questions.

Since libraries are NEVER boring, I of course got interesting answers and more information than I bargained on.  With the permission of the member, and since this answer is not confidential legal advice, I am going to share a dramatic re-creation of our discussion here:

LAWYER:  Hi!  I am Stephanie Adams, the attorney for the council’s “Ask the Lawyer” service.  I wanted to check in on a few things for your question here.

LIBRARIAN:  Oh! Thank you for calling. 

LAWYER:  My pleasure.  Now, I just have a few questions….what song are you thinking about using?

LIBRARIAN:  Well, our library is turning 50, and we want to celebrate it.  We thought we’d pick a song that was from the same year we started.  As it turned out, this was a bit difficult, because it’s a challenge to find a song from 1969 that isn’t depressing.

LAWYER:  An upbeat song from 1969?  Wow, now that I think about it, that probably is a tall order.

LIBRARIAN:  Yes!  But we found one.  “Sugar, Sugar” by the Archies came out in 1969.

LAWYER:  Aha!  “Da da DAda DA da…”  Yes, that is catchy.  What are you thinking about doing with it?

LIBRARIAN: Well, we want to do a version that [REDACTED TO PROTECT SURPISE].  So, just like I wrote, we want to know if we can use the original recording for the music, or maybe just play our own version…one of our librarians is in a band.  And we’d like to put it on Youtube, or perhaps our website.  Or maybe just play it on computers in the library?

LAWYER:  Hmmm.  Do you plan on using it in connection with any fund-raising?

MEMBER:  No, no.  Just for fun and celebration.

LAWYER:  Okay.  Well, that’s helpful.  But I can see why you sent in this question.

LIBRARIAN:  Yes.  I know there could be some copyright issues.  But everywhere I look, I see libraries doing their own parody video versions of songs.  The ALA even did a parody of a Taylor Swift song!  So I figure, there has to be a way.

LAWYER:  Many ways, in fact.  And of course, just like you say, many, many, ways to have some concerns.  Okay, I need to hit the books.  I’ll be back in touch soon!

[PLEASANTRIES]

[END CALL]

The first thing I did, after this call, was check out Youtube.  The member was right: the internet is alive with clever, original, library-produced parody videos!  How had I missed these?  I really need to crawl out of my law cave every now and again.

That said, after a few fun moments of sharing some library/parody videos with my office people, I crawled back into my law cave to address the question.

In general, what does a library making a parody video have to consider?

Although many people think doing a “parody” is an instant ticket to a Fair Use (section 107 of the Copyright Act) defense, the member’s caution was right-on: the use of a musical recording (which is also use of a musical composition and its written lyrics), must jump multiple hurdles before it meets 107’s criteria.

As Justice Souter put it in the famous “2Live Crew” case[1]:

Parody, like other comment and criticism, may claim fair use. Under the first of the four §107 factors, "the purpose and character of the use, including whether such use is of a commercial nature . . . ," the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. The heart of any parodist's claim to quote from existing material is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's work. But that tells courts little about where to draw the line. Thus, like other uses, parody has to work its way through the relevant factors. [emphasis added]

In other words, parody doesn’t mean an automatic ticket to a Fair Use defense; the new work has to create a new message while also partly commenting on the old.  This is a high bar, even when the other factors (like a non-commercial use) may be in a library’s favor.

2 Live Crew’s version of Roy Orbison’s “Pretty Woman,”  which used both the music and AND (some of the) lyrics of the original, hit that bar: “It is th[e] joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works,” wrote Souter in 1994. 

Only this “joinder of reference and ridicule” protected 2Live Crew as they made use of Orbison’s musical composition and lyrics.  Had they left that “reference and ridicule” out, had they simply recorded a cover version of the song and changed a few lyrics without engaging in true commentary about the original, that wouldn’t have had that protection, and their use would have been infringing.

So, when planning a parody video, a library has to be honest: is it a true parody allowing Fair Use, or is it a fun riff that should get a license? 

Using our “Sugar, Sugar” scenario, let’s explore the difference:

The original video for “Sugar, Sugar” shows Archie, Veronica, Sabrina and the gang at a fair in Riverdale.[2]  Archie’s band strums and sings “Sugar…Aw, Honey Honey,”  while Sabrina runs a kissing booth. The whole things is a montage of Sabrina transforming the attendees into various animals with her magical kiss (cost: $1.00).  It is charming (although of course rampantly sexist).

Now, for a comparison of a fun riff versus a true, Fair Use-defensible parody.

A fun riff on this cartoon music video would simply change some of the lyrics and create a new, non-referential video.  Perhaps the chorus, instead of “Sugar, Sugar,” would be “WorldCat.  Aww…WorldCat, WorldCat,” and the video would be a montage of people at computers singing about how exciting databases are.  It would be funny and make a point, but there would be no commentary on or ridicule of the original.

A fair use-defensible parody would go deeper, perhaps saying something like: “Budget.  Ow…Money, Money,” and the video would be a montage of librarians doing what it takes to raise money for supplies and transformative programming.  It would riff off the original to criticize budget cuts, but just as important (for our Fair Use analysis), it would be a comment on the exploitive but subversively transformative commercial nature of the kissing booth in the original.

Have I lost you yet?  I’m sorry.  Fair use is something not even federal judges get right, and the nuances of the case law make it a very unreliable defense for all but the most incisive parody-driven comment and criticism. 

The bottom line: When a library or other institution wants to do a fun riff on a song, the safest bet is to get a license.

So if your library decides your video will be a fun riff and not a fair use-packing parody, what are the options? 

The librarian mentioned another source in our discussion: YouTube.

YouTube has spent the last few years working with ASCAP, BMI and various other rights holders to license songs for their use on the video service.  Ads that run while YouTube videos feature these songs generate revenue that goes, in part, to the rights holders.  This enables “YouTubers” (i.e. content providers) to use the songs (although there are certain requirements for every license), and gives the rights holders a steady revenue stream.

I visited YouTube’s website and looked up “Sugar Sugar.”  Sure enough, “Sugar, Sugar” is licensed to YouTube for both direct play (i.e. to use as the music accompanying a video) or for a cover (for a YouTuber to generate and publish their own version of the musical composition).

Of course, any departure from the original recording or lyrics is not quite a “cover;” arguably, it is a derivative work, which is a separate right under the Copyright Act.  But when the YouTube license allows for either the song to be played, or a “cover” to be generated, YouTubers have a lot of options.  So whether the original version is used with fadeouts to the library’s custom recording, or the member library simply puts their voices over a copyright-protected musical recording, the YouTube license should cover it.

If YouTube is not your cup of tea, the other solution is to go to the rights holders (in the case of “Sugar, Sugar,” reportedly over 12 parties!), and ask for permission.  BMI has a license they offer to not-for-profits, which allows up to three songs per year at a rate of $00.08/1,0000 page hits.  This type of exercise could be tedious, but depending on what you want to do, could be the best option.

In Closing: A Comment About Fair Use

That said, I am mindful that an unacceptable by-product of all this “easy licensing” could be the erosion of Fair Use.  As just an example, one of my favorite parodies is a simple lip-synch and video re-creation of the Hall & Oates song, “Private Eyes”  (if you haven’t seen this, give yourself 5 minutes when you need a boost). 

Because of the keen mockery and recontextualization of the original video’s choreography and messaging, I would argue that, if sued, the parody’s creators would have a Fair Use defense.  But they don’t need one to make such a defense, because they operate with the YouTube license.   And their parody makes money for the song’s rights-holders every time the video is viewed[3].  That seems to be working out for everyone, but use of a work for legitimate commentary and criticism should not depend on the permission of the rights holder.

This is why all people who believe in the open flow of ideas and information must remain staunch defenders and users of Fair Use.  It is a critical asset that should be vigorously promoted whenever possible.

Thank you for a great question, and happy library-versary!

MEMBER QUESTION

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.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

It is well established that a not-for-profit organization can benefit from volunteer labor.  This is true even when the labor brings the organization tangible benefits, like the money from a bake sale, or as in this case, a research fee. 

But when using volunteer services and charging a fee, a library (or any chartered not-for-profit) in New York must engage in a systematic analysis to ensure the arrangement is in step with numerous laws and regulations.  How can a library, museum, or archives do this? 

Follow the three-step process below.

STEP ONE

First, identify the services the institution would like to provide through volunteer labor. 

This is rather like writing a job description or hire letter.  An example based on the member’s scenario could look like this:

Research Volunteer

Under the general oversight of [paid position] in [department], the Research Volunteer performs specific research tasks related to personal requests by [institution] members and other users. These tasks are not to routine operations of [department], but benefit the public and [institution] by serving members and others in a way directly related to [institution]’s mission to [insert mission], as well as raising revenue in support of that mission. 

Your hours and participation as a Research Volunteer are voluntary, but we do ask that you work with [person] to coordinate your time; this will enable us to support your work, and keep things organized.  This work is a valuable service [institution] can only provide through the services of volunteers, and we thank you for your dedication and hard work!

The essential elements of this first step are:

• clarifying who is supervising/helping the volunteer;
• clarifying the tasks of the volunteer;
• specifying that the tasks are not routine duties of paid staff;
• confirming that the work is voluntary; and
• documenting that the work is directly related to the institution’s mission.

You’ll see why these are important in the Steps Two and Three!

STEP TWO

Next, check your organization’s founding laws, charter, founding documents[1], bylaws and plan of service (I call these “core rules”) for any terms that apply to the service you defined in Step One. 

Look at the laws and documents.  Is there something preventing the institution from charging a fee for this specific service?  Is there any cap on that fee?

This exercise will vary greatly from institution to institution, since many variables can impact what’s in the “core rules.”  Here are just a few examples:

A public library could never charge a member to borrow a book or to use the internet, because Education Law Section 262 requires that public libraries be free (to cardholders).

For a private library, its charter could contain an express rule that certain services must remain free—a restriction that might not be found in the law, but could be just as enforceable.  A similar condition could be in its bylaws, or a donation document.

And if an institution is a 501(c)(3), care must be taken to make sure the revenue generated by the service is “substantially related” to the institution’s not-for-profit mission, or the institution could risk having to pay “unrelated business income tax.”  The service should also be reviewed to ensure it is not an “excess benefit transaction” or a non-disregarded membership benefit.[2]  A mis-step on any one of these could have serious tax consequences.

When doing the “Step Two” analysis, it is ideal to confirm your conclusions with a lawyer. 

STEP THREE

Once an institution uses Step Two to confirm it can charge for a service, it is time to return to your description from Step One and make it official, by putting the scope of work and details in a “Volunteer Letter.” 

Why so formal?  Because in recent years, the State of New York has cracked down on enforcement of quasi-volunteer, or just plain muddy, instances of volunteer labor at not-for-profit institutions.  This has even included examining perks and partial payments to volunteers!

Why is that?  While not-for-profit volunteering is unequivocally allowed, like anything, the system can be abused.  To avoid that, and to create clarity in these critical relationships, the New York Department of Labor has issued some pretty strict guidelines, such as:

Unpaid volunteers at not-for-profits may not:

• replace or augment paid staff to do the work of paid staff
• do anything but tasks traditionally reserved for volunteers
• be required to work certain hours
• be required to perform duties involuntarily
• be under any contract of hire by any other person or business express or implied
• be paid for their services, except for expense reimbursement

Sound familiar? This is where the work you did in Step One pays off!  By identifying the work as part of a “Volunteer Program,” clarifying that the service is offered through the hard work of volunteers (and never paid staff), and that there is no compensation to the volunteer, your documentation will be ready to show compliance in the event the Department of Labor audits your institution (which, from time to time, they do).

Final thoughts

Volunteers can be critical contributors to an organization.  If allowed by your organization’s core rules, a not-for-profit can absolutely benefit from the fruits of their labor.  By following the steps outlined above, and setting the relationship up carefully, a not-for-profit (and its volunteers) can reap great rewards.

The essential element of this is clear documentation.  A letter to every volunteer, stating their role, the rules of the position,[3] that it is not replacing or supplementing paid staff, and thanking them for their service, will position an organization to easily demonstrate compliance. 

A quick annual check with the institution’s insurance carrier, to make sure volunteers and their activities are covered by the institution’s insurance, is wise, too.

Thanks for a great question!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

It took me 4 cups of coffee to figure out how to reply to this question!  And it’s not because I didn’t know the answer. 

FERPA is the “Family Rights Privacy Act.”  It bars disclosure of students’ “education records.”

“Education records” (like grades, disciplinary reports, attendance) are defined by FERPA as records:

               (1) Directly related to a student; and

(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

That is the entirety of the definition, from which many things—like names, team participation, dates of birth—are then excluded.[1]

The punishment for a FERPA violation is loss of ability to qualify for federal funds…a scary prospect for any school.  A FERPA violation also comes with a heavy dose of self-correction and shame, as an institution must fix whatever caused the problem, and often, send out letters of correction/apology.

With ten years as an in-house attorney at a university under my belt (and thus, a ten years’ worth of “FERPA Fear” in my brain), the minute I read this submission, I thought: Pshaw, no student newspaper or magazine is an education record under FERPA!  These grants are fine.

That was at cup #1.  But as I started cup #2, I thought: But why are these grants fine?  Why is no student newspaper or magazine an education record under FERPA?  Technically, they could meet the definition.

And those cocky ten years in higher ed were giving me no reason for my answer. 

For a lawyer, an answer without reasoning is no answer at all.  So I kept sipping (and researching). 

As I settled into cup #3, I reviewed some FERPA case law.   But although this were fun to revisit, by the time I was brewing cup #4, I realized: This is not telling me why a student newspaper or magazine doesn’t meet the definition of “education record” under FERPA.

It was only when I re-read FERPA’s definition for “disclosure” that I could back up my instinctive answer with actual legal reasoning. 

Remember, FERPA bars “disclosure” of student education records.  As it says in 20 U.S.C. 1232g(b)(1) and (b)(2)):

"Disclosure" means to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records by any means, including oral, written, or electronic means, to any party except the party identified as the party that provided or created the record.  [emphasis added]

As I sipped gratefully at cup #4, there was the answer: if any student newspaper or magazine has content in violation of FERPA, the violation happened the minute it rolled off the presses…not when the content was published to a larger audience. 

It’s a bit metaphysical (or perhaps ontological) but bear with me: Re-publication in the way the member’s question describes—while arguably making an original violation bigger—cannot create a violation where there was none before. In other words, if FERPA-protected educational records were already “disclosed” via a student newspaper or magazine, allowing other people (students, parents, advertisers) unauthorized access to education records, there was already was a violation, back when the content was first published.  And if protected records aren’t already disclosed, the re-publication won’t be a forbidden disclosure, now.

To illustrate this, here is a hypothetical.  Let’s say that in 1991, the New Hartford High School newspaper (the Tattler!) printed all of my grades (without my permission).  That would have been a FERPA violation, about which I could have complained to the U.S. Department of Education.

Fast-forward to 2019.  Let’s say the Tattler ends up on New York Heritage, where everyone could then see that during the first Iraq war, I was a very strong scholar in English and History, but things were…a tad lacking in Math. 

While that would be a continuation of the old FERPA violation, it would not be a new violation (even if I was just seeing it for the first time).  And while I could still conceivably make a complaint to the USDOE, asking them to ask the school to work with New York Heritage to take it down, my options to do so would be limited, since there is no private cause of action or right to sue under FERPA. 

So, while I cannot “clear” unseen content for FERPA violations (remember my Tattler scenario), I can say that a new FERPA violation will not be caused by posting already-published material on New York Heritage.

In that same spirit, I will now address the other question the member asks:  Are there any other legal reasons student [publications] could not be made available freely in an online repository?

I wish I could just say “No,” and everyone could not worry about this at all.  But we must never underestimate the creativity of lawyers and plaintiffs in finding new ways to threaten legal action!  If the content of a particular student newspaper or magazine is scandalous or allegedly harmful enough, an attorney could try to frame a claim around some type of defamation or personal injury action.  And of course, when publishing content, there is always a potential claim based on copyright or trademark….even if that claim turns out to be bogus.

But these cautionary words are based on highly speculative scenarios.  There is no outright bar on sharing student publication content the way there is for disclosing grades, health information, and attendance-related records.  And because the digitization of student publications creates a useful array of otherwise ephemeral material, and can be a valuable snapshot of a culture at a particular place in time, there are  strong legal defenses for the digitization and publication of them by not-for-profit entities.[2]

To position a student publication digitization project to stand up to legal threats, a solid understanding and articulation of why the project has academic, social, and/or historic value, and a clear ability to show there is no “for-profit” motive, are fundamental.  By thinking through a digitization project, establishing its social value, and documenting its adherence to professional and scholarly ethics, it is easier to defend making the material freely available—and searchable. 

The good thing about grant funding is that the application and reporting process often builds these analyses right into the project. 

Thanks for this stimulating question!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

The TEACH Act was adopted in 2002 to enable the “digital transmission” of otherwise copyright-protected content for educational purposes. 

Schools meeting the Act’s requirements[1] can stream readings of poetry, images of paintings, and lines of computer coding, without fear of infringement claims.  This allows regular teaching activities—like analyzing a poem, assessing a painting, or teaching HTML--to happen online, without fear that the duplication or transmission of the copyright-protected content will bring a lawsuit. 

The TEACH Act positions online learning to use content as it would be used in a traditional classroom—as well as to novel and innovative things via distance learning technology.

But there are a few aspects of the “traditional classroom” the TEACH Act cannot replicate, and a critical one is: watching entire movies.

Per Section 110(1) of the Copyright Act, entire movies can be shown during an in-person class (if they are part of the curriculum…the law doesn’t allow a trigonometry class to kick back with “Wonder Woman” after finals are shown, unless they are calculating the angles of the bullets bouncing off her bracers). 

But there is no equivalent exception in the TEACH Act for streaming an entire video as part of an online course. 

In fact, in very plain language, the Section 110(2) of the Copyright Act states that only a “portion” of a film can be shown.  As stated right here:

…the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission…. [emphasis added].

Okay, I admit it: it’s possible the “very plain language” is only plain to lawyers (and copyright scholars—many of whom are librarians--who leave some lawyers in the dust on these issues). 

The “House Report” [2] below, explains how this language means performance of an entire movie is not allowed:

The exemption for instructional broadcasting provided by section 110(2) would apply only to “performance of a nondramatic literary or musical work or display of a work.” Thus, the copyright owner’s permission would be required for the performance on educational television or radio of a dramatic work, of a dramatico-musical work such as an opera or musical comedy, or of a motion picture.   [emphasis added]

So what does this mean?  Schools that want to stream entire movies as part of an online course—even if those movies could be shown during an in-person class--should not rely on the TEACH Act as their protection from infringement.[3]

What are the other solutions?

• The institution can obtain a license to stream the movie(s);
• The institution can create a “hybrid” course (part online, part in-person) that shows the movies in a physical class, as authorized by 110(1);
• Students can be required to subscribe to a streaming service or other licensed source of the movies, just like they rent or buy textbooks;
• In some instances, fair use might apply, BUT that should be determined on a movie-by-movie basis and documented very carefully, since simple academic need is generally not a defense to infringement.

Thank you for this question!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Reading to kids is one of the best thing we can do for them.  If the law gets in the way of that, there is something wrong with the law!

That said, honoring the rights of authors and illustrators who create stories to charm and educate is one of the best ways we can make sure there is always something new to read. 

And it’s the law.  

The member’s concern is justified; copyright law rewards creativity by empowering rights holders to control how and when their work is duplicated--in this case, “performed”[1].  A reading on “Facebook Live”—no matter how many cute, be-jammied scholars it enriches—could infringe those rights[2]. 

But as the member also suggests, respecting copyright does not need to be the end of the line; there are many ways this type of real-time, remote reading can take place.

Below, please find my “Top 5 Ways for a Teacher to Remotely Read a Bedtime Story to Lots of Kids in Different Places Without Fear of Committing Copyright Infringement.”

1.  When choosing a book to read, select a work in the “public domain”…meaning, the book is no longer protected by copyright.  As of 2019, this means works published before 1924 (in the U.S.) and other select situations.[3]

For example, the “Brothers Grimm” who were writing in the 1800’s, are not suing anymore (nor are their heirs).  Just make sure the publisher hasn’t found a new way to assert the copyright of the copy you read from (a new version, new illustrations and layout, a slightly less sadistic version of the original, etc).

2.  Write your own story.

This one is my favorite.  Who knows?  You might discover you’re the next Eric Carle!

3.  Hold a writing contest amongst the students that includes parental permission to read the entries/winners online. 

This could also bolster interest in the event, since kids could hear their own work read, and see their own pictures online.

4.  Explore making the reading exempt under the TEACH Act (section 110 (2) of the Copyright Act).

The TEACH Act exempts certain digital transmissions of work from the classroom environment.  It has several highly specific requirements, so educators should connect with their institution’s attorney and IT department to see if this option can work for them.  While not the solution for every “good night” reading, with some planning, it could be a way to make online reading sessions a part of a routine curriculum.

And finally…

5.  Explore getting permission from the rights holder!  While not all authors will be in a position to agree, many will say “Yes, of course!” when asked if a teacher can livestream a reading of their book (of course, if you also want to show their book as well as read it, you will need permission from the illustrator, too). 

Reaching out to an author or publisher takes time, but many children’s authors are very accessible.  My high school friend, Grace Lin, is a well-known children’s book author (and recent winner of a Caldecott Honor for “A Big Mooncake for Little Star”).  I reached out to Grace on Facebook to get her take on this issue (and got her permission to share her thoughts). 

For Grace, whose work contains lovely and carefully rendered illustrations, such a request would be about intent and quality.  She said if the reading was more about the not-for-profit reader and audience connecting over her story, and not the video dwelling on the pages (effectively copying them), she would consider giving permission.  On the flip side, Grace felt that serious duplication (with the video dwelling on the pages) could be an unwelcome duplication. 

Like many children’s book authors, Grace is accessible via her website, www.gracelin.com, and I encourage would be night-time-story-readers to reach out to her!

Thank you for this great question.  Copyright is an important law to honor in the educational environment.  But finding ways—lots of ways—to give children an early and deep love of books is an even greater service to the world.  It’s one of the reasons librarians are so important.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This question has two parts: 1) liability for copyright infringement based on a live reading (without staging) of a dramatic work; and 2) liability for events at library facilities.

Let’s tackle part 1 first. 

Section 110 of the Copyright Act sets out a number of exceptions for educational and charitable use of copyrighted works.[1]  Unfortunately, “dramatic works” (plays) are largely excluded from those exceptions.  So while Section 110 is generous (for instance, there is a total exemption from liability for performance of non-dramatical musical works at horticultural fairs!)[2], “performance” of dramatic works (even without staging) is not as excused as other types of use.  

The other exception that could apply to the member’s question is of course “fair use.”  I won’t take up too much of this “Ask the Lawyer” to discuss that option, since the event described here does not sound like it would meet the criteria. [3]

For this reason, any library or venue asked or planning to host a reading of a dramatic work—even without staging it, even without charging admission—should be very cautious.  Unless there is a confirmed exemption under 110 (which would be for classroom use, or for a performance for people with visual impairments), or a documented “fair use” under 107,  proper licensing should be obtained.

And now for part 2. 

Most libraries have some form of policy, and maybe a “facility use contract,” allowing groups or individuals to use their space.  Some charge a small rental fee, others do not.  Some have express restrictions on use by businesses or political groups,[4] others do not.

What’s important to the member’s question is that any use of library facilities should be governed by clear, uniformly applied, mutually-understood terms that:

• ensure ease of distinguishing official library events from those simply using the library;
• require any outside group to expressly assent to following library rules and procedures;
• protect the library from any third-party claims based on the group’s use of the premises.

When it comes to copyright, this last part is essential, since the copyright law allows for “vicarious” liability that can include “innocent” (meaning, they didn’t know about it, or didn’t instigate it) infringers. 

This is what the last Congressional committee amending the Copyright Law has to say about “vicarious liability” for performances:

Vicarious Liability for Infringing Performances.

The committee has considered and rejected an amendment to this section intended to exempt the proprietors of an establishment, such as a ballroom or night club, from liability for copyright infringement committed by an independent contractor, such as an orchestra leader. A well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers. To be held a related or vicarious infringer in the case of performing rights, a defendant must either actively operate or supervise the operation of the place wherein the performances occur, or control the content of the infringing program, and expect commercial gain from the operation and either direct or indirect benefit from the infringing performance. The committee has decided that no justification exists for changing existing law, and causing a significant erosion of the public performance right.

As a not-for-profit institution, a library may have some more defenses than the average night club owner, but there is still a threat of liability. 

So how do venues reduce the risks posed by “vicarious” liability? Often, they ask the main performer, or the entity renting the facility, to “indemnify” the venue for any liability related to the performance.  To ensure they are actually protected, they also demand a certain amount and type of insurance, and require that the venue be a “named insured.” [5]  Later, if they are sued for an infringing performance, the venue will invoke the indemnity, and be defended by and have their damages paid by the renter or performer. 

So, to recap, the following factors are potentially relevant to both parts of the member’s question:

• This particular use of a copyrighted work does not seem to fall under the exceptions of Copyright Law 110;
• A reading of a dramatic work could be a “fair use” under Copyright Law 107, but that conclusion should be carefully documented, and again, does not seem to fit the described situation;
• A library should have a policy and contract that enables the clear distinction between library and non-library events;
• A library should have a “facility use” contract that protects it from any risks of allowing others to use its facility, including performance-related liabilities;
• A library should have insurance coverage that takes into consideration use of its facility by others, including use for performances;
• For certain high-risk uses (if allowed) a library can require an indemnification and insurance;
• For certain high-risk uses, a library can simply decide the event is too risky.

This assessment of risks and ways to mitigate them is called “risk management,” and the member’s question is a great example of how to start the process.  So, what was that question again?

…regardless of whether an audience is brought out for the performance or not, regardless of who is 'sponsoring' it, this would be in violation of the creator's (who is still alive) copyright claim to the work. Further, that the library would most likely be the liable party.

Am I right?

Except for would changing “the liable party” to “a liable party”: yes, the member is correct…there is a risk.  How can this assessed risk be managed? One of four ways:

• Have the group obtain written permission from the rights holder (for a reading at that precise location);
• Locate a 110 or 107 exception;
• Require an indemnification and proof of insurance from the group; or
• Make a risk-management decision to not host the event.

Thank you for your careful question!

Exeunt lawyer, stage left.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Before we get to the nitty-gritty on this question (and we will), let’s reflect on why libraries charge fines and replacement costs in the first place:

• To encourage timely return of materials
• To offset staff time and resources consumed by retrieval efforts
• To replace items when retrieval efforts are ineffective

And always, lurking in the background, is the notion that fines and replacement costs are an alternative to the most under-utilized section of the NYS Education law, the criminal provision in Section 265:

Whoever wilfully detains any book…belonging to any public or incorporated library…shall be punished by a fine of not less than one nor more than twenty-five dollars, or by imprisonment in jail not exceeding six months…..

So far, I have not had a client use their “one phone call” to let me know they have been arrested on an “265,” but the possibility is never far from my mind.

Of course, no one picks a library career to pursue their dream of arresting people who love (and lose) books.  And, although less draconian, I bet no one picks a library career for the joy of assessing late fees.  That said, library materials costs money, and people can be irresponsible about returning items to the library.  So what’s an institution to do?

Some libraries are experimenting with no-fine models[1], since fines can have a disproportionate impact on those in poverty.  Others have great success with routine “amnesty” days and other creative ways to take the sting out of returning books late. And still others want to make sure that the traditional model is as streamlined and legally compliant as possible.  That is what the member’s question is about.

A “bankruptcy discharge policy” is a logical component of a library’s approach to fines, replacement costs, and efforts to collect them.  It addresses the potential “dischargeability” (wiping out) of library fines when a person seeks the protection and “fresh start” created by bankruptcy.  It can also help libraries (and their collection agencies) follow the law, which gives people seeking bankruptcy very specific protections.

Before we address the member’s specific questions about adopting such a policy, it is important to take a moment to reflect on (legal) language.  This is because there is a basis to argue that overdue fines and replacement costs, while valid conditions of having a library card, might not qualify as typical commercial “debts;” this could mean that in many cases, libraries owed fines and replacement moneys might not be precisely “creditors.” This is pointed out in the 1997 case Riebe v. Jeurgensmeyer[2], where the judge writes:

The origin of this federal case is a minor's failure to return a library book. In 1995, Elizabeth Riebe, a minor, borrowed a library book from the St. Charles Public Library ("the Library"). The due date came and went without Ms. Riebe returning it. The Library waited. After Ms. Riebe failed to return the book for six months, the Library retained Defendants [a collection firm] to write to her parents ("Plaintiffs") requesting payment of $ 29.95. 

Addressed to Plaintiffs, the letter, as Plaintiffs see it, implied that they, or their daughter, could be arrested and imprisoned for intentional theft of public library property. Attached to the letter was a copy of the provisions of the Illinois Criminal Code. Rather than paying the $ 29.95 or at least returning the book, and thereby putting the matter to rest, Plaintiffs filed a complaint in federal court, alleging that Defendants' letter violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq.(1996).

In ruling that the FDCPA doesn’t apply to attempts collect library fines (and thus that the library could not be liable for the zeal of their collection agency under the FDCPA) federal Judge Charles R. Norgle (who clearly esteems libraries) wrote:

Here, there was no initial "business dealing" creating an obligation to pay, only an obligation to return a library book. In theory, this may have created some type of contract, but not in the context of a "business dealing" as contemplated by the FDCPA, e.g, the purchase of consumer goods or services. … Rather, the borrowing of a library book is a public privilege that largely depends on trust and the integrity of the borrower. [emphasis added]

Now, the FDCPA is not the Bankruptcy Code, and it is possible that a person seeking relief from debt under the Code and might be able to reduce or completely discharge their fines and replacement charges from a library.  But for over twenty years, Riebe has been cited as good law, so it is possible that this view of library fines and replacement costs as something more fundamental that a business debt could carry over. 

I emphasize this because it means some types of library fines and costs might be dischargeable, but others, since they are not consumer “debt” in the traditional sense, might not.[3]

So, with all that, let’s get to the nitty-gritty:

Are replacement costs for library materials exempt from or subject to discharge of debt? Overdue fines?

Because of the factors cited above, there can be no one-size-fits all answer to this!  It will depend on a few factors.  Under certain circumstances (replacement costs, fines connected to vandalism or wanton theft) the court might rule that what’s owed to the library is not a “dischargeable” debt.  But that might not be the case for the average family declaring bankruptcy because they got swept at the knees due to illness or job loss, and who might have additional hardships to show to the court.  As with many things in bankruptcy, it will depend on the circumstances.

Fees levied in an attempt to recover materials (i.e. collection agency fees)?

I would argue that imposing additional administrative costs for retaining a collection agent risks transforming the library-patron relationship described so well by Judge Norgle in Riebe.  In doing this, the likelihood of the costs being dischargeable increases.  But again, it will depend on the underlying nature of the fine or cost.  Someone who checked out 10 DVD’s on their first week as a cardholder and never returned them might have a tough time proving that the costs aren’t the result of theft (and thus non-dischargeable).

Are we allowed to impose restrictions on borrowers whose debt has been discharged, if they have not returned materials owned by the library? For example, can we deny loans to a borrower until they return library materials, or pay for them, if the debt has been discharged; or can we limit the number of items loaned for a period of time?

Regardless of where your board may fall on its philosophical approach to fines and collections, any time a cardholder declares bankruptcy, all efforts to collect fines or replacement costs should cease.  Critically, this means if borrowing privileges are only suspended due to unpaid fines, borrowing privileges should immediately be reinstated.  On the flip side, suspension due to unreturned materials (for which no replacement cost is being charged) can continue. 

The most important thing, as the member suggests, is to respect the process when your library is notified of it. Any library, or agent of a library, who gets a notice that a cardholder is filing bankruptcy should cease all financially-related sanctions.  If there are extenuating circumstances (let’s say the amount owed is related to an act of vandalism, or failure to return 50 full-color art books) refer the matter to library’s attorney, or alert the bankruptcy trustee, who might contest discharge under the precise factors of the bankruptcy code.

With all that in mind, I suggest some alternative language for a policy, which would addresses both the human aspect of bankruptcy, and some of these subtleties:

Bankruptcy Discharge Policy

The Library understands that sometimes people must seek relief from debt in bankruptcy and are entitled to a “fresh start” after such relief is obtained.

Procedure

Cardholders seeking a discharge in bankruptcy of moneys owed to the library should notify the library of having filed for bankruptcy.

Once the library is properly notified that a bankruptcy has been filed, the library and/or its agent will immediately cease contacting the cardholder about the financial amount(s) owed. 

The library shall then evaluate its response to the notice.  In making such an evaluation, the nature of the conduct leading to any fines, costs, and suspended privileges will be considered.  In particular, but not exclusively, the discharge of any costs related to wanton destruction or significant failure to return borrowed items may be contested.

After notice of filing, but prior to discharge, if borrowing privileges are suspended solely on the basis of unpaid fines and replacement costs, borrowing privileges will be immediately reinstated; borrowing privileges suspended on the basis of unreturned items, for which no replacement cost is sought, will remain suspended.

To ensure all charges are listed on the bankruptcy schedule, the cardholder or their attorney may contact the library to request a statement of account at any time; such contact must be in writing so there is no risk of the library appearing to have violated the bar on collection activity.  An attorney or trustee requesting this information on behalf of the cardholder must include permission from the cardholder as required by CPLR 4509.

The library supports that people seeking relief in bankruptcy are entitled to a “fresh start” after the discharge of debt(s).  Upon presentation of a “Discharge of Debtor” listing the library, all moneys owing shall be removed from the cardholder’s record, up to the date of discharge, for the cardholder and any minor children in the family. 

Further, if replacement costs are discharged, the library will not regard the failure to return the corresponding item as a basis to bar reinstatement of borrowing privileges.

Late returns or losses after the date of discharge will be subject to routine policies, including fines and suspension of borrowing privileges.

This approach both maximizes the potential for a bankruptcy discharge to be the compassionate re-set of the cardholder’s account it is intended to be…while taking into consideration that not all charges might be worthy of discharge (which is up to the bankruptcy court to decide).

Thank you for this careful question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Draft and final Environmental Impact Studies (or “EIS”) must be accessible during the “public comment” period of a construction or remediation project.  After that, a library can discard them.

For readers who aren’t familiar with these documents: EIS are mandated reports that show the complete scope of possible “significant negative environmental impacts” certain types of projects can have.  They are produced by a project’s “Lead Agency” (generally a major figure in the project), who must ensure that copies of both draft and final EIS are made available to the public for a period of “public comment.” 

To comply with these disclosure requirements, the Lead Agency must both post the EIS on the internet, and provide a hard copy upon request.  As an alternative to providing on-demand hard copies, environmental regulations also allow the Lead Agency to place copies of an EIS “in a public library…,” where they must be available for viewing and copying during the public comment period (which is a minimum of 30 days, but can go much, much longer[1]). 

This “public comment” period is critical.  When done right, it enables clarity and transparency even when a project’s approvals span multiple agencies (like zoning boards, preservation boards, and a legislative body).  This allows the average citizen to provide timely comments about on things like environmental hazards, land use, historic preservation, and design.  So the role of the library in ensuring public access is valuable.

As the member’s question appreciates, EIS can have value even after the “public comment” period is closed.  Long after a project is complete, an EIS can reveal site conditions relevant to health and safety.  For professionals like urban planners, environmentalists, architects, and attorneys, the information in an EIS can be very useful.  And from the local history perspective, an EIS can show, decades later, what a village, town, or city perceived as a danger, asset, or cultural resource.  Coupled with building permits and variances, that information can show who was allowed to build what in a particular village, town, or city.  For this reason, I predict EIS will be important resources to the historians of the future. 

To assess if a printed EIS should be retained by the library, libraries can use their normal accession evaluation process.  One thing to consider in such an evaluation: the NY Department of Environmental Conservation retains copies of all EIS (in a manner that accords with the DEC’s own record-keeping policies).  Personally, I do think there is value in retaining the local hard copy, but as the member states, these things can take up a lot of room!

One thing that can make the entire process around EIS easier for a library is having an “EIS Acceptance Form” that is signed by the “Lead Agency” when they drop off the copies for required disclosure. Remember, use of the library is a courtesy that allows the Lead Agency to escape making numerous on-demand copies, so they should be very gracious about signing such an agreement!

I have supplied the essential elements of such a form below, and added a few non-required but library mission-centric terms to them.[2]   

The most helpful feature of this template form is the requirement that the “Lead Agency” notify the library that the public comment period is over; this way, a library can receive express confirmation of when the time to officially make the EIS available has ended, and the decision to dispose of or accession it can be made.

Thank you for this thoughtful question.

TEMPLATE EIS AVAILABILITY REQUEST FORM

The State Environmental Quality Review Act (“SEQRA”) requires that draft and final Environment Impact Studies (EISs) be posted on publicly accessible web sites by the “Lead Agency” for the project, and to provide hard copies on demand.

Regulations allow a lead agency to place copies of the EIS in a public library instead of making a large number of individual copies.  By filling out this form, you, as “Lead Agency,” are requesting that the [NAME] Library place ____ printed copies of an EIS for availability to the general public, and expressly authorize the creation of as many copies as needed by the public, to fulfill your disclosure obligations under SEQRA. 

Further Terms Agreed to By Lead Agency

As a condition of assisting with access during the public comment period, the ___  [insert number] physical copies provided by Lead Agency shall become the physical property of the Library, who shall have an irrevocable license to duplicate the EIS, in any medium now in existence or further developed. After being notified by the Lead Agency of the close of the comment period, the library may retain the physical copies, or dispose of them, at its sole discretion.

Lead Agency also hereby commits to remunerate the library for any request for a copy to be modified per ADA accessibility needs, including but not limited to conversion to braille, large print, or for use with an electronic reader.  Such copies shall remain the property of the Library.

Lead Agency will notify the library via an e-mail to [ADDRESS] when the EIS is no longer required to be available for public comment and duplication.

The Lead Agency employee or agent signing this EIS AVAILABILITY REQUEST FORM is an authorized signatory of the Lead Agency.

LEAD AGENCY:___________________________________

CONTACT AT LEAD AGENCY: ___________________________________

TITLE OF CONTACT: ___________________________________

PHONE NUMBER: ___________________________________

EMAIL: ___________________________________

PROJECT NAME: ___________________________________

PROJECT ADDRESS(ES): ___________________________________

PUBLIC COMMENT PERIOD START DATE: ___________________________________

PUBLIC COMMENT PERIOD END DATE (if able to be determined): ___________________________________

SIGNED ON THIS __________ DAY OF ____________, 20_____.

SIGNATURE:__________________________

PRINT NAME:__________________________

TITLE:____________________________________

[NOTE: Any template form should be reviewed by a library’s attorney for conformity with charter, bylaws, and current policy]

MEMBER QUESTION

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]

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Before we get to the main question (can libraries sell things to raise money?), we must refine something the member mentions in passing.

Yes, under Education Law §260, libraries can dispose of and sell used books—and the library trustees can retain the money.  But since that law actually requires any library[1] disposing of used books to hold such a sale (or to offer the books for free to another not-for-profit or government agency in their area), such revenue generation is more an obligation than a fiscal liberty.  In other words: the board can sell the books and keep the money…but the power comes with strings. 

As it happens, that is the theme of this entire answer!

So, is it “illegal” for a library to sell things and retain the money?  No, it’s not, but it is complicated, and the complications warrant extreme caution before undertaking such a venture.

Let’s discuss this authority and its complexities.

The ability to sell library assets and retain the revenue is rooted in the statutory authority of library trustees. 

As stated in Education Law §260:  “Public libraries…shall be managed by trustees who shall have all the powers of trustees of other educational institutions [created by the Regents].” [2]

These “powers,” with some modifications, track the powers of boards created by New York’s Not-for-Profit Corporation Law.  Two of those powers are:

1) the acquisition and sale of real property (land, buildings, easements); and

2) the acquisition and sale of personal property (books, cars, artworks).

For libraries, these powers come with a well-recognized financial autonomy.  As the New York State Comptroller puts it:

With respect to library moneys…we note that public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see, e.g., 1983 Opns St Comp No. 83-32, p 38). Thus, the ultimate control of the use, disposition, and expenditure of those moneys is vested in the library board of trustees even if the municipal treasurer is the custodian of library moneys. (Education Law, §§226[6], 259[1]; 1987 Opns St Comp No. 87-84, p 125; see also Opn No. 87-49, supra; Opn No. 86-54, supra). (1993 Op St Compt File #93-15)

The practical effect of this autonomy has led the Comptroller to conclude (in two separate opinions):

The trustees of a city public library may sell two bookmobiles belonging to the library at either a public or private sale and may use the proceeds of such sale in such manner as they shall deem to be in the best interests of the library. (1983 Op St Compt File #83-9) [emphasis added].

It would seem that a library board of trustees may sell an unneeded library building, title to which is properly vested in the library board, without voter approval. (1980 Op St Compt File #125)[3] [emphasis added].

So selling items—and retaining the resulting revenue—is part of a library board’s acknowledged authority. 

Of course, this authority is not unchecked. [4] As the Comptroller noted in a 1995 Opinion, the fiscal autonomy of a public library is accompanied by a requirement for absolute transparency:

…General Municipal Law, §30(3) requires that an annual report of financial transactions, including those involving private source moneys (Opn No. 88-76, supra), be made by the treasurer of each public library. The report must be certified by the officer making the same and, unless an extension of time is granted, must be filed with the Office of the State Comptroller within 60 days after the close of the library's fiscal year (General Municipal Law, §30[5]). In addition, the Education Law contains certain requirements for public libraries to report to the State Education Department (see Education Law, §§215, 263). Finally, as noted in Opn No. 88-76, supra, the town board, in determining the amount to be raised by taxes for library purposes, may take into account a library's private source funds and, therefore, may request from the library information concerning such funds. (1995 Op St Compt File #95-30)

In other words: the revenue raised by a sale can be retained, but must be spent in a manner consistent with the library’s plan of service, must adhere to relevant procurement and accounting procedures, and must be properly reported.

And there are more “strings:”

First, even when allowable, not all revenue generated by a not-for-profit entity is entitled to be free of tax.  “Unrelated business income tax” (“UBIT”) is risked when commerce unrelated to the mission of a not-for-profit generates revenue.  This is by no means a bar to a not-for-profit generating some revenue, but is a potential accounting burden, mission distraction, and cost.

Second, but perhaps most important, a library should never accustom the public to the notion of libraries independently and routinely generating revenue. 

Operational funding is the function of a library’s supporting territory and the state.  The public should never get the impression that libraries self-fund; libraries are by law a free resource serving their public, and should be funded. 

And as emphasized in Comptroller Opinion #95-30, above, a funding entity can consider library-generated revenue and donations when it’s time to levy taxes.  Translation: generate revenue at your own risk.

So: yes, the boards of public, school district, special legislative district, and association libraries have the power to sell things and retain the revenue, but if they do, each in its own way should be very careful to:

• Follow its own charter and unique rules;
• Follow all applicable laws and regulations, and know it will need to externally report the sale and use of the money;
• Never create the impression of charging its members for services;
• Not engage in activity that would create “UBIT” (unrelated business income tax), without specific advice from legal and tax professionals;
• Conduct itself with fiscal transparency; and
• Not make any revenue-generating activity a function that could risk the reduction of public funding. 

For a board seeking financial flexibility and responsiveness, these “strings” can be very limiting.   This is where budgeting should help out. 

Rather than conducting their own fund-raising, all boards should explore designating a small part of the library’s budget for board-identified needs (what the member calls “the board’s needs”), so long as those needs are consistent with the library’s plan of service and overall best interests, and the spending is appropriately documented and approved. 

For instance, a board can budget for a strategic planning retreat, an emergency fund, an external consultant, or a unique event for the library.  A library investment fund’s annual revenue can be reserved for a particular use.  The board just has to bear in mind that all these actions will be reported in their publicly disclosed library budget, and so must be easily perceived as mission-related, prudent, and proper.

This why library budgeting is both an art, and a science.[5]

Now, to the final part of the member’s question.  These issues of compliance, transparency, flexibility, and propriety are the very reasons why public libraries have “Friends” (not-for-profit corporations with missions to support a library).  

Every library board of Trustees should feel they can look to their “Friends,” for mission-aligned support.  In an ideal world, the board-approved library budget handles all operational needs, while the Friends’ budget helps out with added layers of special events, acquisitions, and programs.  And when planning for capital acquisitions and improvements, it’s a strategic all-hands-on-deck.

Of course, we don’t live in an ideal world; the operations of two separate not-for-profit entities can be tough to coordinate and align.  With that in mind, I encourage every library board to review the “Friends” section in most recent NYLA “Handbook for Library Trustees in New York State.”  This invaluable resource sets out solid tactics for cultivating and reaping the benefits of a Library/Friends relationship (something it’s easy to write about, but often hard to do).

Thank you for your question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Depression.  Burn-out. Dissatisfaction. Lack of connection.  Lack of money. Lack of parking.

These are just some of the reasons students give when they choose to leave—or are forced to leave—their college or university before graduating. 

Many times, these reasons snuck up on them, although in hindsight, they could be seen: a pattern of missing classes, a downward trend in grades, maybe even dropping out of clubs and other campus activities.  And almost always, after a student leaves (often in tears) faculty and staff, coaches and friends, are left wondering: could they have done more[1]?

No matter what events led up to it, for each such incident of student “attrition,” the stakes are high: student loans, a sense of failure, the end of a career dream, and perhaps even a medical condition that went untreated while the student struggled on their own.

But what if the clues could be seen earlier?  What if the downward spiral could be stopped?

Fueled by increasing technological capabilities, many institutions of higher education are developing cross-campus, inter-sector systems to do just that: hoping to correlate the warning signs and fight student attrition through early intervention.  Using a variety of commercially available and home-programmed tech, they are tracking everything from dining hall meals, to class attendance, to visits to the gym.  These factors, as well as comments from concerned faculty or staff, are then routinely assessed and cross-checked for red flags. 

Because libraries are increasingly hosting classes and providing adjunct space for group work, it makes sense that such a system would consider tracking library usage.  After all, it can be a good sign that a student is just getting out of their dorm room!

But there is a tension within this well-meaning system.  College is where young adults journey to find their independence and privacy; promoting this maturation is part of a college or university’s purpose. Further, a net of privacy laws constrains the easy sharing of certain types of information.  But knowing the painful consequences of unchecked student struggles, many institutions work hard to find the right blend of metrics and policies to be able to intervene. 

Part of this hard work is finding the right path through that net of privacy laws.  As the member writes, the biggest privacy law of all, FERPA,[2] does allow such inter-departmental sharing,[3] and even parental notification about safety concerns, when the time is right.  It does this through both application of the law, and “FERPA waivers.”

But in New York, FERPA is not the only privacy rule to apply[4] to these information-sharing systems.  As the member states, New York’s Civil Practice Laws and Rules (the “CPLR”) §4509 (“4509”) also governs a student’s records—at least, their library records.  And it sets the bar high.

4509 is a short law where every word matters, so it is worth quoting in full here: 

Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute. [emphasis added]

As you can see, “college and university libraries,” even though they are part of larger institutions, are clearly covered by this law.

So how does 4509 impact the member’s question?

First, every library (academic or not) should have a clear sense of what it regards as “library records.”  As can be seen in the statute, the term is not precisely defined (“including but not limited to” leaves a lot of room for argument!).  Some of the obvious ones are listed in the law (circulation records, database searches, copy requests) but unnamed others could be just as vital to privacy (use of a 3-D printer, security footage covering the circulation desk, and in the member’s example, the use of research appointments).   And still others activities that use the library may or may not apply (classes conducted in the library, but not part of library programming, are arguably excludable).

To protect the records as required by law, a library must know precisely what records it must protect.  This is why, just like a public or association library, a college or university library should have a “Privacy of Library Records” policy clearly showing where it draws the line. Such a policy should also have a “subpoena response protocol,” so the library can train staff on how to receive internal and external third-party demands for information. 

And in a perfect world, this college or university “Privacy of Library Records Policy” should be known and supported by the institutional officer who oversees the library (a Provost or Academic VP).  This officer’s authority, from time to time, may be needed to ensure the policy is respected by campus safety officers, student disciplinary administration, and any other department that might want library records in service of another institutional purpose.  Librarians should not hold the 4509 lines alone!

Now, back to the member’s scenario.  Once a library knows precisely where it “draws the line” on library records, the member’s instinct is right: any access to information that falls within the institution’s definition of “library records” should be either denied, or allowed only as the law requires: via a signed consent from the user/student.

I know, just what every student wants—to fill out another form!  But these 4509 consents, just like a “FERPA Waiver,” are not only mechanisms to ensure legal compliance, they are a chance to educate students about their right to privacy. 

For instance, the consent form (I imagine it would be a digital click-through on a password-protected student account, but it could be a paper form) could say:

“The privacy of library records is protected by the law in New York State (CPLR 4509).  Your enrollment in the [SYSTEM NAME] will ask the library to disclose certain library records that are protected by this law.  As a library user at an library in New York, you have the right to keep your library records private.  A list of what [LIBRARY NAME] considers to be library records is here [link to policy].  If you would like to consent to the [NAME OF LIBRARY] sharing your library records with only [SYSTEM], please check the below consent:

[ ] I am at least 18 years of age, and consent to the limited sharing of my library records for purposes of sharing the information with the [SCHOOL NAME] [SYSTEM].  This consent does not allow sharing my library records, even within the school, for any other purpose.  No consent to share the records with external entities is give. 

I understand I will need to renew this consent every fall semester, and that I may revoke this consent at any time.

Of course, there is no legal requirement for annual renewal, but it is worth considering.  A year is a long time in the life of the typical undergraduate student, who may enter college with one set of civil rights values, and leave with another. With an annual renewal, the library not only complies with the law, but educates the student about their privacy rights on an annual basis.

So, to address the member’s final questions:

Have we crossed any lines here?

No.  By thinking about this issue during the planning phase of the system, you are making sure the lines are bright and well-defined.

Do we even need the opt-in statement?

You could call it that, but I recommend calling it a “4509 Consent.”  That would build awareness of this important law in our future leaders (and librarians).  Of course, as a lawyer, I may be biased as to how important that is (but it’s really important!).

Is this something clear or fuzzy/grey?

Not so long as your library has a clear and routinely evaluated policy defining what it regards as “library records.”  This can be tough at an integrated institution, where so much information technology crosses through different sectors.  But it should be done.

What should we be considering that we haven't thought of?  

I think you should consider buying yourself a nice cup of coffee or tea for doing your part to support a commitment to personal privacy in the United States of America and State of New York.  Unlike in the European Union, our privacy currently risks death by a thousand cuts.  Every bit of armor counts. 

Thanks.

And thank you.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

The “Ten Percent Rule” has been kicking around the world of education for decades!  This is a good chance to bust this myth, since as we’ll review, it is not a reliable stand-alone formula for “Fair Use” (copying without needing permission). 

But we’ll start with another area of the law.  This question involves not only Fair Use, but Section 108 of the Copyright Act, which applies specifically to libraries.

Under Section 108(d), the teacher (or any library user) may make one copy of:

…no more than one article or other contribution to a copyrighted collection or periodical issue…if—

(1) the copy …becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and

(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

So in this scenario, if the other above-listed criteria are met, the teacher can make one copy of one hundred percent of the article.

But after that one Section 108 copy is made, unless the school obtains a license to duplicate the article, the only subsequent copies can be those authorized by Section 107 (“Fair Use”).  This question asks: does copying an article from a larger publication meet Section 107’s criteria?

The answer is “it depends” (in law, that is often the answer!).  But what does it depends on?  If only the answer was a simple “Ten Percent Rule” (whether ten percent of the article itself, or ten percent of an original compilation)…. but it isn’t, even in the educational environment.  Instead, the overall circumstances, when viewed through the lens of the four Fair Use “factors,” are what govern this answer.

There are many excellent model policies out there on how to apply Fair Use in academia[1], an every academic institution should have their own.  So I will not use this “Ask the Lawyer,” response to duplicate what’s already out there, but I will take this opportunity to emphasize:  duplication based solely on the rationale that what is being copied is only 10% of a larger article or publication is not determinative of Fair Use, even in an educational, not-for-profit setting. 

A string of recent cases, delving deeply into how the four “Fair Use” factors are applied when making excerpts available in academia, shows things just aren’t that simple.  Commonly called “Cambridge I, II, III, and IV,” these cases involve claims by Cambridge University Press, Oxford University Press, and Sage Publications against  Georgia State University, and showcase the most in-depth, frustrating wrangles about Fair Use in academia ever to be seen.

The most recent ruling in this saga, Cambridge University Press v. Albert (“Cambridge IV”), was issued on October 19, 2018.  If you feel like reading the clear, cogent writing of a federal judge obviously frustrated by another federal judge’s inability to figure out Fair Use, check it out.

As re-emphasized in Cambridge IV, the third factor of Fair Use is the “amount and substantiality of the portion used in relation to the copyrighted work as a whole.”  But the opinion goes on to clarify that the amount used (ten percent or otherwise) is not a factor to be considered in isolation.  Rather, all four factors are to be applied in a way that reinforces the purpose of the Copyright law: promoting the progress of scholarship and creativity[2].   And in academic publishing, the opinion makes clear, the impact on the market  for an article can be just as determinative as that unlicensed copies’ not-for-profit context or academic purpose.

So how can the member’s issue be resolved?  When confronted with a scenario like the one submitted by the member, a librarian should not feel the need to argue with a teacher.  Rather, the librarian should rely on their institution’s attorney-vetted Fair Use policy and form to enable the teach conduct and document their own assessment of Fair Use.

Why do this?  First, a good Fair Use policy and form will walk the teacher through the Fair Use analysis, saving the librarian time (and sanity!).   Second—but just an important—the creation of a written record documenting a good-faith determination of Fair Use will potentially help both the teacher and the institution by mitigating any damages for infringement.  And third, in education, getting these things right is a good example for students.

So once the teacher in this scenario makes their one 108 copy, provide them with a copy of the institution’s Fair Use policy and form.  If your institution doesn’t have a policy or form, this is a good time to get one, since these days, even municipal entities can be found liable for copyright infringement.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This is an important submission, because access is the mission of every library, and access is the purpose of the ADA.  When it comes to ADA accommodations, an institution’s commitment should always be: plan for access.  

Under that principle, the answers to the member’s questions are:

• When showing a movie, always use some type of assistive technology to ensure accessibility.
• When having a large-scale event, always budget and plan for an ASL interpreter.
• To ensure people can advise the library of the need for specific accommodations, have a well-developed and publicized accessibility policy.

By planning for access, an institution can never go wrong under the ADA.

But the member wants to know: when planning for access, what does the law specifically require?

As always, what the law requires can depend on a lot of different factors.

The ADA and its enabling regulations do expressly require certain entities to use captioning technology.  For example, all commercial movie theaters (except drive-ins), and all televisions built after 1993, must include captioning tech. 

But while a specific requirement for captioning has been an important asset for the Deaf and Hard of Hearing communities for decades, libraries are not on the list of legislated adopters.  Rather, just like any other place of “public accommodation,” libraries have a broader mandate; they must ensure “…no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services….”  

In other words, while captioning is not expressly required at a library, accommodations are.

The ADA doesn’t always mandate the precise means of accommodation; captioning can be but one of the many ways a library ensures a Deaf patron can access a movie.   What’s important is not the precise accommodation, but the removal of a barrier to service.  

That is why a big part of ADA compliance is not just following narrow rules (although there are plenty of those, especially when it comes to design of new buildings or the mass purchase of technology), but keeping up with and considering all available options for access. 

How can a library easily assess all those options?   A great resource for learning about the latest ADA accommodations—organized alphabetically by disability—is AskJAN.org.[1]  Although created primarily for employers (the “JAN” stands for “Job Accommodation Network”), JAN is an invaluable jumping-off place for learning the specific barriers a person with a disability may face when trying to access a service, and how a provider can remove those barriers…within that provider’s budget. 

For example, a search of “deafness” on AskJAN shows—among many other things—an array of “real-time captioning” services, together with providers and a description of how they work; this allows for comparative shopping and a more nuanced use of services.  To use the member’s movie example: if the only version of a movie a library wants to show doesn’t come with captioning, a resource like AskJAN can help find an alternative—which is what the library is required to do.

Which brings us to the heart of the member’s question: what are a library’s specific obligations?  At the start of this answer, I have used the lawyer’s go-to response: “it depends.”  But what does it depend on?

Precise obligations under the ADA vary based on institution type, size and budget.  For example, a very large municipal library with a relatively large budget and older facility should address accessibility questions through their ADA Title II-mandated self-evaluation, compliance policy, and complaint procedure; such an institution should also have to have a “responsible employee” overseeing that procedure.  This is because ADA Title II, which applies to government bodies and agencies, expressly requires a government agency to have those resources in place.[2]

On the other hand, a small association library with a small budget and a new building will fall under different sections of the law, and have somewhat different obligations.

But no matter what section of the ADA applies, the goal remains the same: to not deny service if there is an aid or adjustment that can help…unless that aid or adjustment would fundamentally alter the service, or be an “undue burden” (i.e. too expensive or difficult[3]). 

This is why every library should have a custom-tailored[4] accessibility policy guiding the library’s planning for ADA-related operations (which, at a library, are practically all operations).  While such a policy can take time to implement, and must be updated from year-to-year, in the end it is both a respecter of people and a time-saver, taking the painful guess-work and last-minute planning out of ADA compliance, and helping a library plan for access for all. 

For instance, as suggested by the member, such a policy can set a threshold for when events will automatically have an ASL interpreter, and when/how a patron can notify a library about an accommodation needed at a smaller event.  Further, it can ensure there is a budget line to pay for such accommodations, and that staff are trained and ready to answer accommodations-related questions gracefully. 

A thorough, custom policy will not only pinpoint a library’s specific ADA compliance obligations, it will make sure:

• the library is not making ADA decisions ad hoc (a recipe for a law suit);
• that its documentation shows compliance if a violation is claimed;
• that ADA accessibility is built into budgeting, staffing, training, purchasing, and event planning;
• that the institution is placing the needs of all patrons at the forefront of planning.

If a library doesn’t have such a policy, forming an ad hoc “accessibility committee” comprised of both staff and board members[5], and an attorney, should be a top priority.

How can that play out?  Let’s return to the member’s scenarios. 

With a policy guiding the way, the answers to the member’s questions would unfold in a methodical way.  The library would check the latest alternate assistive technology in the early planning stages of the event.  Consulting AskJAN, they might determine that perhaps remote CART[6] technology can help, and their planned budget line would pay for it.  If the projected attendance is under the threshold set by the policy (determined by considering the library’s area of service), there is no automatic ASL interpreter; however, the publicity and posted policy will include the ways attendees can notify the library of any necessary accommodations.

If, after the movie, there is a complaint about ADA compliance, the policy and documentation showing it has been followed will help resolve the complaint in its early stages.   But more critically, the details of the event will reduce the risk of such a complaint,  since any person who needed accommodation had access that was both well-planned and easy to arrange. 

Thank you for these important questions.