RAQs: Recently Asked Questions

Topic: Music used for virtual school Halloween parade - 10/23/2020
The elementary is planning a virtual Halloween parade this year. The students will parade through ...
Posted: Friday, October 23, 2020 Permalink

MEMBER QUESTION

The elementary is planning a virtual Halloween parade this year. The students will parade through the building in costume. As they pass through the entrance hallway, there will be a video camera live-streaming the parade via zoom (to families watching from home). The parade committee would like to play a purchased CD of spooky music in the background of the video.

Does this violate the music copyright?

WNYLRC ATTORNEY'S RESPONSE

In the spirit of the season, and the answer I must give, this answer will be a modified version of a scene from Macbeth.

[Cue sounds of wind, rain, and small children trying to line up while thinking about candy and their itchy "Frozen II Elsa" costume.]

ENTER THREE WITCHES

FIRST WITCH: Educator!  I sense thou wouldst put on a show!  And Zoom it to demesnes beyond thy institution!  But if the music is protected by copyright and the school does not have a license to use the music in that manner it will be a violation of the copyright!!!

SECOND WITCH:  And, Educator, know this, as well! The Zoom terms of use state: "Zoom may deny access to the Services to any User who is alleged to infringe another party's copyright!" So be warned, or you be twice-condemned for the foul deed of infringement, by both the copyright's master, and the Powers of Zoom!!!

[Lightning.  Thunder.]

THIRD WITCH:  Ahem.  Of course, you'd have to get caught, first....

[Pause.  The cauldron bubbles.  FIRST WITCH and SECOND WITCH give THIRD WITCH the side-eye.]

THIRD WITCHAhem.  Of course, you'd have to get caught, first....

FIRST WITCH and SECOND WITCH:  Gasp!

THIRD WITCH: What? We're witches!  We have to be sneaky, why do you think we're camped out here in the woods?  And seriously, do you think in the midst of everything happening on Zoom, someone's going to notice?  The world is going so crazy, I'm expecting it to rain toads at any moment!  Give this poor Educator a break.

FIRST WITCH:  Oh, Alecto, you always were a rebel.

Okay, back in the real world...

Sadly, my three witches are right, and this is the answer I have to give.  Since the parade won't be a part of a class, there is no TEACH Act exception, so transmitting the music via Zoom is just like putting it out over a streaming service or live TV: a no-go without permission[1].

That said, I dug around in my cauldron, and I can offer this possible solution:

Round about the copyright go

In the creative solution throw

Songs that "copyleft" be

Can help thee celebrate Halloween

For works freely used and easy got

Search "Copyleft Halloween Songs," and find a lot.

Not very much toil and trouble

"Copyleft" works make music bubble!

 

Just in case my Shakespearean verse is too obtuse, what I'm saying is: Hop on your favorite search engine and type "copyleft Halloween songs."[2]

What will this do?

For those of you who don't know: "Copyleft"[3] is slang for: "I could own and control this copyright, but I am so cool, I am letting you use it, so long as you let others use it, too."  Meaning: "copyleft" work is free to use, by anyone, so long as whatever you generate using the work is also free to use.[4]

Now, as with all clever solutions, this one calls for thorough planning.  I listened to a few of the songs I found this way; not all of them are, as they say, "safe for work" (or at least safe for school) so check out the songs before you Zoom them out to parents. But since this is music the authors have proudly composed and released for free use by a wide audience, I suspect at least some of it will meet your needs.[5]

[NOTE: I don't know if it would work for your school, but this one by Frannie Comstock is hilariously clever[6] (and mentions lawyers)!  If nothing else, give it a listen just for a fun 5 minutes.  Here is that YouTube link written out: https://www.youtube.com/watch?v=XzvlAuUiM5s]

Happy Halloween!

 



[1] I am not weighing if this would be a "fair use."  That said, if the Halloween Parade and the music interacted to make a clever statement or unique medley of work, that could be a possibility.  But I've been to my kids' Halloween parades.  They are darling, they are not ground-breaking, incisive commentary on modern theatre.

[2] Don't search "Copyleft Halloween Music" because for some reason (which I am sure many of you information professionals out there know) it just wasn't as fruitful.

[3] Yes, this is similar to Creative Commons, but it is also different.  For more information, visit https://www.copyleft.org/.

[4] This means that if you make a movie out of the Zoom recording of the parade, using a Copyleft song, that recording needs to be Copyleft, too.

[5] Unless "your needs" involved specifically using the soundtrack to "The Nightmare Before Christmas."  In which case, I cannot help you, because Skellington Productions, Inc. owns all those copyrights, and I don't see them going Copyleft anytime soon.

[6] I don't know Fannie Comstock (is that even a real name?  It sounds like a person who makes candy while panning for gold), and I am not receiving any kickback for this endorsement of her ridiculously clever work.  Which makes sense, since there is no charge to use her highly amusing song.

Tags: copyleft, Copyright, COVID-19, Library Programming and Events, Music, Streaming, Zoom

Topic: Archiving images of minors in organizational online collections - 10/22/2020
Our archive was part of a regional project to initiate, scan, and make available church records fr...
Posted: Thursday, October 22, 2020 Permalink

MEMBER QUESTION

Our archive was part of a regional project to initiate, scan, and make available church records from predominantly African American churches within a city. As part of this project, student/graduate assistants went to the particular churches, scanned the historical records as digital files, and provided those files to [our archive] for public access.

My question is in regards to photographs taken of minors and the restrictions for retention and online display. I would not have selected those particular items for retention, but because I was not on-site during the scanning, I have the files as part of the larger record (church programs, organizational records, committees, etc.). We have signed permissions from the church administration for online access and display of their records. In some cases the photographs are from over 20-40 years ago, in some cases they're much more recent. They're taken at private church events, Sunday school classes/activities, and public events--some as part of photo albums and some as individual files.

I'm struggling with how to treat these photographs and any associated records when I know they display minors. Any advice or direction would be greatly appreciated.

WNYLRC ATTORNEY'S RESPONSE

This question is at the vertex of the law and ethics.  What an institution may be positioned to do with archival images legally might not be what our society demands ethically.  And if the issue impacts real people with real feelings, this conflict can lead to legal claims—regardless of solid footing based on precedent and the law.[1]

When it comes to images of children, who can't legally consent to the use of their images, the ethical issues arising from agency, respect, and self-determination are all the more critical.

The member clearly knows this, and is seeking a direction for assessing how to access, catalog, and use them—if at all. The law is often too blunt an instrument to assess ethical questions, but in this case, I believe the legal steps for assessing the use of such such images can provide a framework for the deeper assessment of the ethical considerations[2] .

Below, I will list the "legal" steps an attorney considers when reviewing a museum or archive's acquisition, but focus on the ethical considerations connected to those factors, especially with regard to use of images of children.

1.  Ownership of the Physical Object

This stage is where an institution looks at the provenance of the object and, if that physical object is to be transferred to the institution, addresses the legal priority of making sure the title is "clear."

Ethical considerations: How did the physical object come into existence?  Was the creator a member of the community being documented, an academic, a journalist, or an "outsider?"  Does it appear that parents or guardians were present?  What was the original purpose of the object?  Does any of that information suggest coercion, exploitation, or invasion of privacy?

Or, as the International Council on Archives puts it in Section 7 of their Code:

Archivists...must respect the privacy of individuals who created or are the subjects of records, especially those who had no voice in the use or disposition of the materials.

 

2.  Ownership of the Copyright

This stage is where an institution looks at the original ownership of the copyright of the image, any transfers of those rights, the use of those rights, if the rights have expired or been transferred to the public domain, and if any of those rights are to be transferred to the institution.

Ethical considerations: Who "owns" the rights to the image?  Are the rights financially valuable?  Have they been put to non-academic, commercial use before, or are they likely to be?  Can your institution accept the rights in a way that limits future commercial exploitation of depicted minors?

Or, as the Society of American Archivists puts it in Section VI of their Code of Ethics:

Archivists may place restrictions on access for the protection of privacy or confidentiality of information in the records.

 

3.  Manner of Accession

This stage is where an institution looks at the overall package it is acquiring.  In this case, the member has pointed out that the data collection project may have over-stepped some (formal or informal) boundaries.  Other accession challenges can be donor-imposed conditions, environmental factors, and budget concerns.

Or, as the International Council on Archives puts it in Section 2 of their Code of Ethics:

Archivists should appraise records impartially basing their judgment on a thorough knowledge of their institution’s administrative requirements and acquisitions policies.

...and in Section 5 of that same Code:

Archivists negotiating with transferring officials or owners of records should seek fair decisions based on full consideration – when applicable – the following factors: authority to transfer, donate, or sell; financial arrangements and benefits; plans for processing; copyright and conditions of access. Archivists should keep a permanent record documenting accessions, conservation and all archival work done.

 

4.  Legal Considerations of Content

This stage is where an institution looks for specific concerns caused by the precise content in the materials.  When it comes to pictures of minors, this means assessing if the content is in any way criminal, contains evidence of a crime, if the information suggests they were a ward of the state, if it originated from sealed criminal records, and if the use will in any way be commercial (and thus require permission).

Or, as the Society of American Archives puts it in Section IX of their Code of Ethics:

Archivists must uphold all federal, state, and local laws.

 

5.  Identity of Person(s) Portrayed

This stage is where an institution looks at the depiction of the real person portrayed in the material and assesses if it poses any additional challenges.

Or, as the Society of American Archives puts it in Section VI of their Code of Ethics:

Archivists strive to promote open and equitable access to their services and the records in their care without discrimination or preferential treatment, and in accordance with legal requirements, cultural sensitivities, and institutional policies.

 

6.  Alignment with Mission

An archive or museum will always have a mission—or "charitable purpose"—at its core.  This is how it maintains a tax-exempt status, its charter, and its ability to operate.  Does the contemplated use of the content you are focusing on (the images of children) match up with that mission?  Or it is somehow at odds or unaligned with it?

This consideration warrants a repeat of Section 7 of the International Council on Archives Code of Ethics:

Archivists should take care that corporate and personal privacy as well as national security are protected without destroying information, especially in the case of electronic records where updating and erasure are common practice. They must respect the privacy of individuals who created or are the subjects of records, especially those who had no voice in the use or disposition of the materials.

 

7.  Alignment with Collection Purpose

Just as an archive or museum will always have a mission—or "charitable purpose"—at its core, so will a particular collection have a description that sets out its scope, methods, and purpose.  Does the contemplated use of the content you are focusing on (the images of children) match up with that description?  Or it is somehow extraneous or not quite consistent with it?  If sensitive material is not squarely within the scope of the collection, it shouldn't be there at all.

Or, as the Society of American Archives puts it in Section III of their Code of Ethics:

Archivists should exercise professional judgment in acquiring, appraising, and processing historical materials. They should not allow personal beliefs or perspectives to affect their decisions.

 

That's great...but what to do?!?

When faced with a sensitive decision like the one posed by the member, a subject-focused analysis based on the above factors is the right way to move ahead, in one of three directions:

  • If there is a decision to accession the materials and facilitate access, a written protocol for handling the sensitivities should be made part of the policies of the collection.
  • If there is a decision to accession but limit access (something archival values generally counsel against) there should be a clear path through the restrictions and a well-documented justification for the limitations.
  • If there is a decision to decline accession, the basis of the decision should be documented in light of the factors impacting the decision.

In this particular case, any of the three above-listed options might be appropriate.  From the brief description provided by the member, it sounds like the photos were joyful documentation of a community by its own members—not exploitive or rooted in dubious practices. 

But even under a "best case scenario"[3] like the one provided by the member, it is appropriate to develop a checklist based on the mission of the institution, and the goals of the collection, to be assured any archival images with minors:

1) will not be subject to commercial exploitation by the institution or a third party accessing the collection (unless there is properly executed permission allowing such use);

2) were not created in a manner inconsistent with the mission, values, and ethics of your institution; or if they were, the collection parameters address those concerns;

3) are included in a manner consistent with the purpose of the collection; and

4) there is a process[4] for any individual or relative to request removal of an image of a depicted minor.  Since such a request would only come after there was a determination that the image was consistent with the values of the institution and fit within the scope of the collection, any evaluation of such a request should be made based on the reasons for the request.

 

The good news is, the same documentation that shows careful assessment of the ethical factors will help you with any future legal concerns.

And finally, there is one more option for this particular scenario, which is to ask each church to include in their weekly bulletin or routine outreach:

Our church has been selected for inclusion in the ABC institution's online archives. As part of this work, we have provided numerous photos of our events over the years, which include pictures of many of our congregants when they were children. If you have any concerns with your childhood image being included in such a collection, please alert us.  Otherwise, please know that our community records are being preserved for the future!

That way, the church as the original provider of the records can "claw back" any photos that a person might object to, and your archive will have another step in its own records to show it did everything it could to respect people's agency and privacy.

Thank you for a thoughtful question.

 



[1] A critical example of this issue—use of a person's image in ways that raise question of agency and ethics (to say nothing of basic human decency) is found in the saga of the images of people named Alfred, Fassena, Jem, Renty, Delia, Jack, and Drana, all subjected to enslavement in the 19th century.  The images are commonly called the "Zealey Daguerotypes" and the disputes about them start with how they come into being, as well as how they are used in the present day.  For a good summary of this saga, see https://www.nytimes.com/2020/09/29/books/to-make-their-own-way-in-world-zealy-daguerreotypes.html.

[2] "Established" by recognized authorities, not by me.  My go-to for this will be the Code of Ethics of the Society of American Archivists, found at https://www2.archivists.org/statements/saa-core-values-statement-and-code-of-ethics#code_of_ethics, and the Code of Ethics of the International Council on Archives, found at https://www.ica.org/en/ica-code-ethics.

[3] This "Ask the Lawyer" is only addressing the question about minors...I am not tackling the fact that the rights to the relatively recent photos may be held by still living people, or relatives!

[4] This does not need to be a flagrant "notice and takedown" process; it can be accomplished through a simple statement like: "The ABC Archive [is accredited by/follows the ethics of DEF]; if you are concerned that the depiction of any individual or the inclusion of certain content in this collection is contrary to those ethics, please contact GHI at ### to share your concern."

Tags: Copyright, COVID-19, Digitization and Copyright, Ethics, Archives, Photographs

Topic: Does NYS plastic bag ban apply to libraries? - 10/22/2020
[NOTE: This question relates 6 NYCRR Part 351, which implements the requirements of Titles 27 and ...
Posted: Thursday, October 22, 2020 Permalink

MEMBER QUESTION

[NOTE: This question relates 6 NYCRR Part 351, which implements the requirements of Titles 27 and 28 of Article 27 of the Environmental Conservation Law, aka "the plastic bag ban" which went into effect March 1, 2020, but was suspended for a variety of reasons until October 19, 2020.  For more information on that, see the graphic at the bottom of this answer.[1]]

Does the NYS plastic ban law apply to libraries using plastic bags for curbside pickup?

We purchased plastic bags to hold library items that patrons request, label the outside with their name and leave the bags on pick up carts in the foyer of the building. This is for patron privacy-others cannot see what a patron has requested. As well as a COVID-19 measure-others are not touching items for pick up to search for their materials.

We are tax-exempt and not selling anything. When our supply is exhausted I will explore other possibilities in order to support less plastic waste, even if the ban does not apply to us. But in the meantime, are we in violation of the plastic bag ban if we continue to distribute materials in plastic bags?



[1] Found on October 21, 2020 at https://www.dec.ny.gov/chemical/50034.html

WNYLRC ATTORNEY'S RESPONSE

The answer for this member is: NO.

Why?

The NYS plastic bag ban does NOT apply to libraries using plastic bags for storage of items pending curbside pick-up, unless the libraries are required to collect sales tax.

So while this member's library can choose to phase out plastic bags[1], since it is not required to collect sales tax ("we're not selling anything"), it is not compelled to do so.

Here is what the new regulations prohibit:

351-2.1 Prohibitions. A person required to collect tax shall not:

(a) distribute any plastic carryout bag to its customers unless the bag is an exempt bag;

...   [emphasis added]

"A person required to collect tax" (as if the term really needs clarification!) is defined as:

(l) ‘Person required to collect tax’ means any vendor of tangible personal property required to collect New York State sales tax pursuant to subdivision (a) of Section 1105 of the New York State Tax Law, “Imposition of sales tax.”

The trick is that the application of the law is not based on the taxability of the sale, but rather, the status of the bag distributor as a "person" required to collect tax. 

This is further borne out by commentary from the NY Department of Environmental Conservation, which states[2]:

As of March 1, 2020, all plastic carryout bags (other than an exempt bag) became banned from distribution by anyone required to collect New York State sales tax. For sales that are tax exempt, plastic carry out bags are still not allowed to be distributed by anyone required to collect New York State sales tax (unless it is an exempt bag). [emphasis added]

So, while the vendors at your library's annual craft fair (if you're able to have a craft fair, sigh), who have to collect sales tax, can no longer use plastic bags, a non-sales tax-collecting library's curbside delivery service can.

Extra credit:

At "Ask the Lawyer," we are not used to being the bearers of good news.  So just to be sure—I mean really, really sure—that we could give the above answer, I also checked the " REVISED REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES AND LOCAL GOVERNMENTS" found on the NY Department of Environmental Conservation's web page at https://www.dec.ny.gov/docs/materials_minerals_pdf/part351rfafinal.pdf.

The "ANALYSIS" is one of the documents that drills a little more into the law, and how it will impact those it covers.  It states:

In 2019, a new Title 28, “Bag Waste Reduction” was added to Article 27 of the ECL. This law bans the distribution of plastic carryout bags to customers, effective March 1, 2020, by any person required to collect tax. (“Person required to collect tax” means any vendor of tangible personal property subject to the tax imposed by New York State Tax Law section 1105(a), “Imposition of sales tax.”)

So, really: unless your library is collecting sales tax (for sales of food, or sales of items like t-shirts, office supplies, or other retail[3]), these new requirements do not apply.  But if your institution is registered to collect sales tax (for anything): beware, and "ban the bag."

 

Thank you for a great and timely question.

Screenshot of NY DEC page detailing plastic bag ban.

 



[1] Which, as the member states, they intend to do.

[2] On https://www.dec.ny.gov/chemical/50034.html, as of 10/21/2020.

[3] Yes, not-for-profit and education corporations that sell retail items have to collect sales tax (they don't have to pay it, but they have to collect it). For more info on that, see https://www.tax.ny.gov/pdf/publications/sales/pub750.pdf.

Tags: COVID-19, Laws, Public Libraries

Topic: Face shields and COVID safety guidelines - 10/22/2020
New state guidelines list face shields as acceptable face coverings: https://regs.health.ny.gov/v...
Posted: Thursday, October 22, 2020 Permalink

MEMBER QUESTION

New state guidelines list face shields as acceptable face coverings:
https://regs.health.ny.gov/volume-1a-title-10/content/section-66-32-face-coverings
However, people often spend quite a bit of time in the library, especially using our computers. We would like to require that they wear actual cloth (or paper surgical) face masks. Are we permitted to make our own safety rules? It seems to me, that just as we can prevent roller skating in the library, we should be able to set other safety rules for the sake of staff and patrons.
Thank you.

WNYLRC ATTORNEY'S RESPONSE

This question came into "Ask the Lawyer" with a request for a quick turnaround, so we'll keep this brief.

Are we permitted to make our own safety rules?

Yes...and no.[1]  But that doesn't matter for this question, because the member's real objective is...

 "We would like to require that they wear actual cloth (or paper surgical) face masks."

...which a library with a well-developed, uniformly applied Safety Plan can absolutely do.

Why is that?

As of this writing[2], there is documented evidence that the CDC is still weighing the advisability of face shields.  Here is what they have to say:

Image depicting a cautionary warning that face shields and gaiters may not be effective.

 

(For the less cartoon-oriented[3], the CDC says it like this:)

Screenshot of CDC mask guidance regarding the COVID-19 pandemic

Of course, at the same time, as the member points out, the State of New York now allows face shields to "count" as a face cover:

66-3.2 Face-Coverings....

(i) Face-coverings shall include, but are not limited to, cloth masks (e.g. homemade sewn, quick cut, bandana), surgical masks, N-95 respirators, and face shields.

 

Meanwhile, the REALMS study has hit the library community with THIS cold cup of coffee[4]:

Screenshot of information from the REALM study regarding transmission concerns.

 

Libraries should be paying attention to all of these evolving resources[5], and should regard their Safety Plan as a "living document" that evolves with that information.  This will help libraries develop a plan that can help them help patrons adhere to CDC guidelines like this one:

Screenshot from a library homepage regarding curbside pickup rules.

The bottom line?  If your library bases its access and services on current information, is careful to adhere to its obligations under the ADA, and adheres to a Safety Plan that provides—based on the combined input from such reliable sources—that certain areas may only be accessed by those wearing faces masks (and/or gloves, and/or only if they agree to spray down certain surfaces, and/or only by a certain number of people a day), it may do so.

It all comes down to having a Safety Plan based on your library's unique size, design, staffing capacity, and collection materials.  With a plan that is linked to established factors, the best guidance we can get in uncertain times, and reliable enforcement, anything is possible.[6]

Thanks for an insightful question!



[1] The answer to THIS question is about 15 pages and has 20 footnotes.  Aren't you glad we found a way to make it snappier?

[3] I am "cartoon-oriented."  Whenever something can be conveyed effectively via icon or cartoon, it should be.  Of course, as a lawyer, I experience no shortage of words.

[4]  https://www.oclc.org/realm/faq.html.  On a side note, how bad is my DIY mark-up of this content?  It looks like I am trying to draw a squished amoeba. 

[5] My "word of the day," which I learned as I researched this answer, is "fomite" (infected objects). Given what we've all had to deal with in 2020, I am sure I have seen the word before, but was too busy learning the concepts like "zoonotic" & "contact tracing" for it to sink in.

[6] Even wearing a masks while roller skating in a library (but I'd check that one out with your insurance carrier).

Tags: COVID-19, Emergency Response, Policy, Safety

Topic: Addressing copyright cease and desist notices - 10/22/2020
Help!  We just got a very scary "cease and desist" notice from a company claiming t...
Posted: Thursday, October 22, 2020 Permalink

MEMBER QUESTION

Help!  We just got a very scary "cease and desist" notice from a company claiming to own the copyrights to some videos that were posted on our web site and used internally.  They want $2,000 to "settle" a copyright claim, and they say we have 10 days to reply or they will sue!  This notice is sitting in my in-box like a ticking time bomb, please let me know what we should do. [1]



[1] In the interest of transparency, please know that this question is an amalgam of several we've received, and not attributable to any one institution.

 

WNYLRC ATTORNEY'S RESPONSE

As the use of online tools for tracking use of copyright-protected content becomes more widespread, this is happening to schools, libraries, museums, and other cultural/educational institutions with greater frequency.

While these threats will vary based on the circumstances, here is a step-by-step "Copyright Threat Diffusion Guide" to help you de-escalate the tension and figure out what to do, from the moment an infringement threat hits your in-box.

Step 1

Breathe.  It's going to be okay.  Make some tea, or go for a walk if you feel nervous.

Step 2

Print the threat, and save a copy as a PDF with the document name "CopyrightClaim[DATE]."  DO NOT FORWARD IT.

Step 3

DO NOT REPLY to the threat.

Step 4

DO NOT take any of the steps it demands (removal of content, paying money, saying you’re sorry, etc.).  Just stay cool for a few more steps, first.

Step 5

Within one business day of its arrival, appoint a "copyright claim buddy"[1] to work with you on this.  If you are a director, this is a good role for your second-in-command.  If there is no other employee who can help out, loop in a board member (all of this should be over the phone, no e-mails).  Just "Hello, we got a claim of copyright infringement we need to assess, I read this thing that says an organization should always have at least two people work on that type of thing, can you work with me on it?"

Step 6

Hopefully, you now have a "copyright claim buddy" and you are ready to make your first decision: alert your institution's lawyer, or alert your institution's insurance carrier.  Either is good.

Here's how you notify your attorney: If you have lawyer, e-mail them the pdf of the threat (cc your buddy), and write "The [library] received this on [DATE].  [NAME] and I are responsible for handling it.  Are you available to help us this week on this, and if so, can you propose a budget for helping us with this?  And if you can't help right now, can you recommend someone who can?  We know we need to handle this promptly."[2]

Here's how you notify the insurance carrier: If you have an agent or broker, e-mail them the pdf of the threat, and say "The [library] received this on [DATE].  [NAME] and I are responsible for handling it.  Is there coverage for this, and if so, does the carrier want to respond?"

It is reasonable to expect replies within three business days.

Step 7

With Step 6 done, the matter is either out of your hands as the driving force of resolution (you and your buddy will remain engaged with the carrier or the lawyer, but they will be the interface with the claimant...if they decide the threat is even worth responding to), OR you have confirmed you have no insurance coverage for this, and you haven't found a lawyer who can help you.[3]  Which brings us to...

Step 8

Step 8 is the time for all the initial responses that likely hit you in an adrenalized rush when you first opened the threatening message.  It includes things like:

  • Conducting an inventory of your institution's alleged use of the material[4];
  • Establishing how the material came to be used as it was (if it was);
  • Assessing if your institution's use of the material was "fair use";
  • Assessing if any internal policies were violated when the material was used (again, if it was);
  • Assessing if your institution's use of the material was under a license;
  • Determining if a third party supplied the material to the institution;
  • Determining if it is wise to remove the material now;
  • Determining if the material listed in the threat letter is protected by Copyright;
  • Determining if the copyright to the material listed in the threat letter is registered with the Copyright Office;
  • Seeking any other factors that would weaken the threats on the claim;
  • Using all the above-bulleted information to assess your institution's unique position in this matter.[5]

Whenever possible, everything in "Step 8" should be either conducted by an investigation by your insurance carrier, or with the participation of your library's attorney so the findings are protected by attorney-client privilege. 

Step 9

Step 9 is the course of action developed based on the information established in Step 8.

Because so many variables impact it, there is no one answer or outcome to Step 9, but here are some real-world resolutions I have seen:

Taking a close look at the content, it was determined that the material in the threat and the material used by the institution weren't actually the same thing. Result: case closed with no credible threat of litigation having been made.

Taking a close look at the content, it was determined that the Copyright was not registered, and thus there was no credible threat of litigation at that time.  Also, there was some room to claim fair use. Result: to be cautious, the institution removed the content, but without acknowledging the threat and with no money paid.

Taking a close look at the content, it was determined that...Oops, this institution made a mistake and used someone's content without permission to advertise a small, free event.  Further, the content was properly registered, so the threat of litigation was credible. Result: insurance carrier took over and negotiated a very small settlement.

These are just a few examples, but they show the range of resolution possible when a systematic analysis of threatened copyright infringement is conducted in a calm and rational manner.

I do want to emphasize the importance of bringing in your institution's attorney.  Determining the facts that position an institution to take Step 9 requires a full and frank discussion of what might have happened during Step 8.  That means that unless the process is protected by attorney-client privilege, getting to Step 9 can create discoverable evidence that would have to be turned over during a lawsuit.  Depending on what happened, that could be to your institution's disadvantage.

Finally: I know I started this with the admonition to "stay calm," but then included some fairly alarming things in this answer! For anyone who has read this and is now worried about content your institution has posted on its website or on social media, a nice way to allay a panic attack is to casually reach out to your insurance carrier or agent and say: "Hey, do we have coverage for alleged copyright infringement? We don't plan on infringing anybody, but it would be good to know what to do if someone claims we have."

That way, you know who to call just in case you get one of these letters. 

Call it "Step Zero."

 



[1] Why do I recommend a "copyright claim buddy?"  Several reasons.  First, this type of thing is no fun.  Second, this is a chancy world, and any one of us can suddenly get sick, in an accident, or win the lottery and quit our job.  For critical matters like threatened litigation, an organization's response team should be at least two people deep.  Further, it is a good development opportunity for future leadership.

[2] If your lawyer does not regularly handle copyright matters, they are welcome to call my office at (716) 464-3386.

[3] Keep trying!  Don't go it alone.

[4] Are the facts asserted in the letter even accurate?

[5] If you are a state institution, there are certain protections you have; if you are a not-for-profit educational institution, there are certain protections you have; if a third party posted the material, there are certain protections you might have.

Tags: Copyright, COVID-19, Laws, Cease and desist

Topic: Can a public library set up a separate LLC? - 10/21/2020
A public library is looking at the possibility of taking over the running of a medical loan closet...
Posted: Wednesday, October 21, 2020 Permalink

MEMBER QUESTION

A public library is looking at the possibility of taking over the running of a medical loan closet that has been previously run by a church.

The library would find a space through a partner, so it would not be on library property.

The library would be responsible for cataloging the items, tracking their circulation, and applying for grants to help with funding.

The local visiting nurses have volunteered to handle the distribution of equipment, and are willing to continue if the library takes it over from the church.

The library's director and trustees are concerned about insuring the library to protect it in the event that someone gets hurt using a piece of equipment and there is the possibility of a lawsuit. They talked to their insurance agent and the company they use would not cover this.

A discussion came up about starting a separate LLC for the medical loan closet that the library would be openly affiliated with.

Would it be possible for a public library to set up a separate LLC to do this?

WNYLRC ATTORNEY'S RESPONSE

Before I answer, let's talk about why a person or business might create an LLC ("limited liability company").

A primary function of an “LLC”[1] is to do exactly what the member has proposed—to create a separate entity designed to hold the liability associated with a particular venture.

Examples of how an LLC can be used to take on liability (and keep it from flowing to its owner/s) include: ownership of rental properties, operation of restaurants, and yes, collaborative formation of charitable initiatives, like a medical closet operated in affiliation with a library.[2]

This is because, when set up properly, an LLC allows its "members"[3] to have an ownership stake in the company, while minimizing the risk of liability associated with the LLC adhering to other parties (like the members).

For this reason, a lot of property owners and participants in risky ventures[4] use an LLC to contain the liability that could result from the risks of the venture.  This helps with insurance, critical decision-making, and keeping unrelated assets separate from the liabilities of a venture.

Aside from this primary “separation of risk” function, the LLC model also allows creative arrangements for financial operations and tax considerations.  Among many other things that relate to ownership of family businesses, and complex corporate structures, this includes allowing one or multiple 501(c)(3)[5] not-for-profit charitable entities to form an LLC that will have a similar tax status. 

So the "short answer"[6] to the member's question is: YES.

That said, I do have a "long answer" composed of several considerations and caveats, which I hope will be helpful.

Consideration 1: Audit.

While the laws governing public libraries[7] do not forbid--and arguably expressly allow--an education corporation like a public library to own, or partially own, the asset of an LLC[8], a review of various New York State Comptroller audits[9] shows that any assets flowing between the two entities will be considered subject to all the requirements that must be followed by the library.

In other words, if the State Comptroller conducts a fiscal audit of the library (as State Comptrollers are randomly wont to do), the Comptroller will not only look at the books of the library, but also the books of the LLC—subjecting them to the same scrutiny as the library. 

So, to the extent money and resources flow from the library to the LLC, the same constraints on procurement, investment, and other use of assets will be imposed on the LLC.  This could bar or limit the activities of the LLC, so should be a primary consideration when it is formed.

Consideration 2: Operations

By "operations," I mean: who is helping the LLC get the work done?

In the scenario submitted by the member, it is the library who will "be responsible for cataloging the items, tracking their circulation, and applying for grants to help with funding."  Meanwhile "local visiting nurses have volunteered to handle the distribution of equipment."  And finally, as described by the member, the storage/pick-up (the "Closet") will be off-site (not on library property).

This means that the LLC would rent/borrow the space for the Closet, volunteer nurses would work there helping to distribute equipment, and the library would use its personnel to track the lending and equipment.

And although the member doesn't specify, let's say the library doesn't use its own circulation system for this, but instead, buys or builds a custom system—maybe even something as simple as an Excel spreadsheet.[10]

So the library would supply the "time and talent" of its people on an ongoing basis to the LLC, perhaps tracking it as an in-kind support to the charitable venture,[11] and also separately purchase assets that would be solely owned and used by the LLC.

This "time and talent," is where "risk and liability" for the library—even with an LLC housing the operations—truly enter the picture.  Even with a separate entity designed to take the hit, when an entity supplies its own people to staff a venture, there is always some risk that the direct involvement of a third party can lead to an assertion of liability (when people sue, they often look for not only deep, but multiple pockets).

How do you solve that?  It takes two things:

Consideration 3: The Operating Agreement

By law, every LLC must have an "Operating Agreement" that specifies how the "members" run the company.  For small, simple LLC's, an "OA" can be a fairly short document.  For complex ventures with detailed financial goals and complex management structures, an OA can be hundreds of pages.

In the case of a "Medical Loan Closet" LLC meeting the criteria in the member's scenario, the operating agreement would have to address, head-on:

  • The precise responsibilities of each member[12]; and
  • The in-kind services being supplied by each member; and
  • The precise terms under which individuals would contribute their services, including volunteers; and
  • The precise way assets of the LLC are purchased, loaned, and de-accessioned (this is the part the Comptroller would look at); and
  • How the premises of the Closet is managed and insured; and
  • Most critically, the way the LLC would hold harmless and indemnify the participating parties for any assertion of liability against them based on LLC operations.

Which brings us back to...

Consideration 4:  Insurance

At the end of the day, this question is about two things: 1) how to do a good thing for a community; and 2) how to make sure the organizations doing that "good thing" properly manage the risks of doing it.

While much of this can be addressed via good planning, rigorous equipment maintenance,[13] and proper paperwork, as can be seen in "Consideration 3,” and as the member clearly knows, a venture that will be so closely connected to people's physical health must have some form of insurance. The coverage should extend to every person with either a fiduciary, employment, agency, or volunteer relationship with the Closet.

While precise coverage amounts should be determined by the participating parties, my instinct is that there should be at least $1 million of coverage per incident, with no less than $3 million/year aggregate.[14]  But it will depend on many factors.

So, what to do?

Many times, there is a very solid reason to start an LLC.  If the Closet described by the member was going to own real property, have its own employees, apply for grants, and in general, take care of most of its operations in-house, with the support—but not the direct service—of the members, I'd say that was the right solution for this scenario.

However, if the Closet is to be a collaborative effort that will rely on the direct services and assets of the member organization/s (in this case, services by library employees, on library time), in my experience[15], a tightly structured plan that properly establishes the responsibilities of the collaborating parties—and ensures there is proper insurance coverage for all involved—might be the most practical way to move forward. 

This will also position the library to do the right type and amount of "volunteer vetting" and to properly confirm the conditions of (and insurance coverage for) the volunteers.

So, on a practical level, what am I saying?  A library can spend thousands to set up a charitable LLC to run a Medical Loan Closet[16], and then about a thousand or so a year to ensure the proper administration of that LLC--or it can develop the Closet as a program of the library (either stand-alone, or in collaboration with others) and spend the money on additional risk management and insurance. 

After all, we're not talking small engine repair, here.  Lending things—even if it is health-related equipment—is part of any library's core mission.

At the end of the day, many factors will play into the decision to use 1) an LLC, 2) a collaboration agreement[17], or 3) to simply operate the Closet as a new program of the library (with some volunteer agreements for the nurses). 

To get to the part where the library can make the decision, I advise developing an "Operational Plan"[18] for the program, and getting quotes from several insurance carriers as to what the coverage would costs for your library and/or for a new entity to conduct the activities in the Operational Plan.

Since there will be a lot of detail to review, a small ad hoc committee[19] consisting of a board member or two, the library director, any other person whose input will be helpful, and the library's attorney, can then review this information, and come up with a solution to pitch to the board. 

And when that pitch is made, everyone should be confident that there is no "wrong" way to develop a new, life-saving lending initiative—so long as the way selected clearly defines everyone's responsibilities, establishes that clarity in writing, assures legal and fiscal compliance, and ensures everyone helping out is covered by insurance.  With the right attention to detail, this could be an LLC—or another solution.

I wish this venture luck and stout hearts for getting it over the finish line; it sounds like a great asset to any community!



[1] When I write about LLC's, I really struggle with putting "an" before an acronym that begins with a consonant ("LLC").  But the rules on "indefinite articles" assure me it is proper.

[2] There are some questions about the operation of a collaborative 501(c)(3) LLC in New York, but they happen, and haven't been shot down yet.

[3] "Members" is what the New York State Limited Liability Company Law calls owners.

[4] I don’t mean “risky” as in “Don’t drive that Pinto!” In in this context, “risky” applies to any venture that has a risk of exposure to legal claims due to having premises, employees, contractual obligations, or providing goods/services.  In that context, even my own law office (which is a type of LLC) is “risky.”

[5] "501(c)(3)" is a designation from the IRS that allows a library or other charitable organization to accept donations while the donor takes a deduction.

[6] Trust me, this WAS that short answer!  Another business lawyer who reads this will find it pretty skimpy.

[7] The Education Law, the Not-for-Profit Corporation law, the General Municipal Law, the Public Officer's Law.

[8] This is NOT to say that the local library could engage in a hostile takeover of the LLC-operated laundromat next door to ensure the very loud HVAC system is turned off during children's story hour.  A not-for-profit, and a public library, both have extensive rules regarding what assets and investments they can own, and how they can benefit from them.  But it could be done (in my hypothetical, it could be done if either: a portion of the laundromat income was a directed donation used to purchase special collections OR if use of the machines to clean clothes while reading or using library Wi-Fi was a free service to the community tied into the library's Plan of Service.  Which, by the way, would be AWESOME).

[9] When I want to relax, I just pop on over to the Comptroller's "library audits" page at https://www.osc.state.ny.us/local-government/audits/library, and have a jolly good read.

[10] My apologies if my assumption that such a project could be tracked via Excel is laughable.  While I can script out workflow and compliance protocols like a pro, my database programming skills stop with a 4-column chart in "Microsoft Word."

[11] Remember, the assets of both a not-for-profit and a public library come with heavy restrictions.  This includes the "asset" of the workforce.  In this scenario, we're assuming all the right paperwork for "lending" employees to a venture is properly in place...not something to assume lightly in the Real World.

[12] Operating a charitable LLC is fairly simple after the start-up phase, but there are routine tasks that must be kept up with: book-keeping, audit, routine IRS and Charities Bureau filings, compliant procurement, de-accession.  Consider who will be responsible for all these things.

[13] This consideration—about properly maintaining loaned health-related equipment—is addressed in the RAQ response to a question we got back in April 2020 about lending a Telehealth kit, which is found here: https://www.wnylrc.org/ask-the-lawyer/raqs/132.

[14] A great short cut on this would be to find some other medical loan closet programs in New York and ask who their carrier is.  Establish your credentials and tell them why you need the information first, though...places get VERY nervous when you ask who their insurance carrier is!

[15] At this point, I have worked on joint ventures for educational purposes, arts purposes, community gardens, the development of apps for civic transparency, community murals, and just about every feel-good thing you can think of.  I will never be rich, but I love my job.

[16] A word of caution: the phrase "Medical Loan Closet" is part of a name protected by a trademark, the "Wichita Medical Loan Closet" which can be seen here: http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4806:g09zye.2.1. When developing a "closet" program here in New York, take care to distinguish your brand so there is no risk of getting a cease-and-desist.

[17] Remember, a “collaboration agreement” is different than an LLC’s “operating agreement.”  A “collaboration agreement” unites the efforts of two or more entities creating the venture, and manages risk WITHOUT creating an LLC. 

[18] The "operational plan" will evolve once you make the decision about the entity type, but to start it is just a description that sets out how the Closet will run.  If the idea is largely to use the same model used by the current operator, that is a fairly simple task, but make sure to include every role and responsibility, simply noting "TBD" is you don't yet have an answer.  An inventory of equipment will be an essential component of this exercise.

[19] Since I have hit you with a lot of detail that could be daunting, I will add this gratuitous advice: if possible, have a meal or fun snack at your planning meetings (even if they have to be via Zoom right now).  I have been working on a charitable planning committee, and by turning it into a convivial experience, we are getting through some fairly obscure stuff while staying in touch with basic human joy.

Tags: COVID-19, Policy, Public Libraries, Liability, LLCs, Loaning programs

Topic: Protecting Against Misconduct - 10/14/2020
In light of recent accusations of alleged misconduct by community organization volunteers utilizin...
Posted: Wednesday, October 14, 2020 Permalink

MEMBER QUESTION

In light of recent accusations of alleged misconduct by community organization volunteers utilizing public library facilities, how should libraries protect themselves moving forward?

Many of our libraries have community rooms that are reserved at no cost, or minimal cost, for service organizations, community groups, or private events. Typically these events are not monitored by library staff, and often occur outside of normal library operating hours. Although community room use by the public may be limited based on scheduling and other parameters, discrimination based on the type of program/service is generally prohibited.

What best practice measures should libraries implement to reduce liability? Is there particular language that we should include in our community room rental agreements or policies?

On a related note, what about other library visitors that make use of library common space on a regular basis for tutoring or counseling that doesn't constitute a library sponsored program or group? Library staff cannot always monitor what occurs out of view of staff workstations, and cameras don't typically capture every secluded space within the building.

Finally, what about staff who often work alone in the library, or alone in the children’s' room? Even with policies regarding unattended children under a particular age, those age limits are often well below adulthood and library staff are in a one-on-one situation for extended periods of time.

This concern is primarily related to accusations of sexual misconduct and abuse of minors, but could apply to anyone, at any time, for any reason.

WNYLRC ATTORNEY'S RESPONSE

In 2012, I was an in-house attorney at a university when the "Penn State Scandal"[1] broke.  Along with the nation, I was horrified to learn about the serial sexual abuse of children by a powerful coach in an NCAA Division I football program--and just as critically, the system that allowed the abuse to go unchecked for so long.

If I hadn't been before, at that point I became acutely aware of the responsibility of an institution to safeguard the vulnerable populations it serves—even when only hosting or renting a part of its facility.[2]  I looked to the law and other guidance for solutions, and spent time working on contracts, policies, and trainings for safeguarding minors--and avoid liability for failing to do so.

As the member's questions point out, in a busy, community-oriented library, that liability can enter the scene in many ways.  Let's tackle their questions one-by-one.

Member question: Many of our libraries have community rooms that are reserved at no cost, or minimal cost, for service organizations, community groups, or private events. What best practice measures should libraries implement to reduce liability? Is there particular language that we should include in our community room rental agreements or policies?
I have spent a lot of time over the last four years[3] reviewing various library policies.  And if there is one thing I have learned, it's that almost every library governs the use of its space by outside organizations differently. 

This makes a uniform approach to this question difficult, but I think I can give you some good initial food for thought by providing two answers:

ANSWER #1: adopt a “Protection of Minors” addendum to written policies and (ahem[4]) "handshake procedures" for allowing use of your facilities for one-time (or very rare) use by outside groups.

Thank you for using the ABC Library for your gathering! 

At the ABC Library, our mission is based on service to the community, and that includes a commitment to practices that keep our community safe.

Therefore, a representative of your organization must fill out this "Assurance Regarding Minors" before granting you permission to use the space.

1.  Will your event include minors (children under the age of 18)?  YES     NO

If "NO", we're all set, please sign and date below.

If "YES", please continue

2.  Will your event require the guardian or parent of any minors attending to be present?

YES     NO

If "YES", we're all set, please sign and date below.

If "NO", please continue

3.  If minors unaccompanied by a parent or guardian will be at your event, please list the adults responsible for the well-being of the minors, and how your organization has confirmed they do not pose a risk to the minors.

Name

Role in your organization

Method of risk assessment

 

 

 

 

 

 

 

 

 

 

 

 

 

Thank you for filling out this assurance.

DATE: ________________

 

SIGNATURE: _______________________

PRINT NAME: ________________________

ADDRESS: ____________________________

 

WITNESS: _______________________

PRINT NAME: ________________________

ADDRESS: ____________________________

 

ANSWER #2: Add a "Protection of Minors" provision to the standard contract your library uses  to set the terms of regular/routine use of your facilities by outside groups.

[NOTE: A "Facility Use Agreement" should name the organization in the contract,[5] set out the rules for use, confirm if the use is paid, bar use for political purposes,[6] and—critically—if there is a heightened risk to the activity,[7] require insurance.  What I have set out below is just the provision related to minors.  A template facility use agreement is on "Ask the Lawyer" at https://www.wnylrc.org/ask-the-lawyer/raqs/167.]

Protection of Minors

The ABC Library expressly forbids abuse or sexual abuse of minors on its premises. 

As a condition of using space in the Library, ORGANIZATION represents and warrants:

a.  ORGANIZATION has verified, and shall verify every six months, that all employees and volunteers who will be at the Library per this Facility Use Agreement are not listed on the New York State Sex Offender Registry.

b.  ORGANIZATION maintains a policy barring sexual abuse within its operations, and requires all employees and volunteers to report instances of sexual abuse to law enforcement within 24 hours of observation or receiving a report of sexual abuse; a copy of the policy is attached.

c.  The indemnification and insurance provisions in this agreement expressly include indemnification and coverage of the Library, its trustees, officers, employees, volunteers and agents for any complaint, claim, or cause of action related to alleged sexual abuse.

 

Next member question: On a related note, what about other library visitors that make use of library common space on a regular basis for tutoring or counseling that doesn't constitute a library sponsored program or group?

This is a very tough one, because the risk will vary based on the design and capacity of your library.

Libraries with space in wide-open areas near circulation and reference desks obviously have an advantage in this regard: there is lots of space for people to meet as described in the question, without the seclusion that can provide protective cover for illegal behavior. 

That said, libraries also provide secluded areas so people have places for quiet contemplation.  Quiet contemplation being one of the things we need more of in this world, I imagine most libraries are not considering totally getting rid of it any time soon.

There is no perfect solution to this issue, but here is the best input I can offer: once every few years (at least), a library should review its floorplan, policies, and any and all safety-related concerns with the library's insurance carrier.  They will be in a position to help the library assess its unique position in this regard.

 

Finally, what about staff who often work alone in the library, or alone in the children's room? Even with policies regarding unattended children under a particular age, those age limits are often well below adulthood and library staff are in a one-on-one situation for extended periods of time.
At least once a year, staff—especially staff who work alone or in isolated areas—should be trained on practices to keep themselves and others safe.  This should include:

  • Security protocols
  • Emergency response plan
  • Recognizing warning signs and preventing violence in the workplace
  • Appropriate boundaries in the workplace
  • Addressing and responding to medical emergencies (including mental health emergencies)
  • Enforcing the Code of Conduct
  • Generating documentation of incidents

For some libraries, this training will draw on a large collection of formal policies.  For others, it will simply be running through a series of standard operating procedures.

The goal of such training--and the answer to the member's question--is to develop and enforce good boundaries (set by written policy or a well-articulated "standard operating procedure"[8] or "SOP") that includes a clear set of rules[9] for how to interact with minors, and every person and co-worker in the library.  By developing such rules/procedures while focusing on the entire spectrum of how a library keeps its employees and patrons safe, the energy spent on training and thinking about safety-related best practices will be maximized.

  • Requiring groups routinely using library space to give critical assurances and supply insurance;[10]
  • Requiring less routine users to at least give written assurance as to how they ensure safety;[11]
  • Training employees regularly to be aware of and ready to enforce policies related to safety;

...positions a library to both diminish the risk of child abuse at its premises, and to have the documentation to show the library did the best it could to diminish that risk.  This reduces both the likelihood of harm, and liability.

And as always when it comes to managing risk and liability, as often as is practical, invite your attorney and your insurance carrier to participate in these efforts--they are critical partners in such initiatives. 

Thank you for a very important set of questions.



[1] I am sure you can Google it, but here is a link to a thorough summary: https://www.chronicle.com/package/penn-state-scandal/

[2] I am also a parent. However, you'll only get the cool, rational lawyer part of my brain for this answer, since the "parent" part of my brain does not think about this issue either coolly or rationally. 

[3] That's right, "Ask the Lawyer" has been around for almost four years! 

[4] Since COVID has killed the handshake, we'll just call these "unwritten policies."

[5] In the sample language, I am calling the organization using the library's room "ORGANIZATION."

[6] For more on this political issue, see https://www.wnylrc.org/ask-the-lawyer/raqs/95.

[7] Like learning how to make stained glass (which can lead to nasty palm cuts), and leading a group of minors (which requires consideration of how an organization guards against abuse).

[8] Like, for instance, not having physical contact with patrons (no matter what their age).  Of course, such a protocol is a lot easier to enforce in COVID-times.

[9] If I ran your library, those rules would be: no physical contact with patrons (regardless of age), no unaccompanied minors under 16 allowed if the library only has one employee on staff, no leaving the circulation desk when patrons are in the library if there is only one employee on hand, no being in a room alone with an unaccompanied minor.  It would also be a rule that these rules are consistently applied.

[10] Answer #2.

[11] Answer #1.

Tags: COVID-19, Meeting Room Policy, Template, Behavioral misconduct

Topic: Children's Library Cards - 10/14/2020
COVID has made online library card registration essential in many areas. What do we need to consid...
Posted: Wednesday, October 14, 2020 Permalink

MEMBER QUESTION

COVID has made online library card registration essential in many areas. What do we need to consider when dispensing online (temporary cards that allow access to e-resources) and physical library cards to children? At what age, and under what circumstances do we need to get a guardian's signature? Can we require some form of ID for children?

WNYLRC ATTORNEY'S RESPONSE

I remember getting my first library card at the Utica Public Library with my Dad, circa 1985.  It was a right of passage: something "official" before I could drive, or work, or vote; a stepping-stone to adult life.

Of course, back then, we didn't have the Child Online Privacy Protection Act, the SHIELD Act, or the GDPR.  We did have CPLR 4509[1], but if that was part of the application, I probably assumed it was what the library would use to revive me if I had a heart attack in the stacks.

But enough of Memory Lane: this question is rooted in 2020, a time of pandemic, of online ecosystems, and of growing awareness about personal privacy and data security.  During this time, a library putting in place direct access to services for children in the ways listed by the member is a critical service, and as the member points out, introduces a lot of legal factors to think about.

To answer the member's questions, let's dive into them.

Contracts and Kids

Since the relationship of a library to a patron is (among other things) contractual, and in New York a person (generally) cannot be held to a contract until they are 18[2], any terms a library wants to be able to enforce on a minor must require legal consent of a parent or guardian...and in some cases, the contract really is just with the parent or guardian (who I will call "P/G" for the sake of efficiency going forward).

This, by the way, doesn't mean a library can't let minors have a card and borrow books (or have online access, or be in the library) without the signature of a parent or guardian—it just means if you want to enforce any contractual terms against those minors (like the requirement to return borrowed books), it's best to have a P/G's consent along for the ride.

 

Contracts and the Internet

Most contracts—including those signed by P/Gs binding minors—can be entered into electronically,[3] and a contract signified by a library card is no exception.  So yes, a patron, including a child, can get a library card or access to services through an electronic signature. 

(Just in case you want the nation-wide definition, an "electronic signature" is "an electronic sound,[4] symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record."[5])

 

What about COPPA?

When a website specifically provides services to children, we often have to consider the Children's Online Privacy Protection Act, or "COPPA."  But not today, since COPPA expressly states that the law applies to "commercial" websites and online services and generally not to nonprofit entities like a library.[6]

Although nonprofit entities are generally not subject to COPPA, the FTC "encourages[7] such entities to post privacy policies online and to provide COPPA’s protections to their child visitors."  Since libraries are sticklers for privacy, this makes sense, but if your library does this when setting up online resources for minors, don't call it "compliance with COPPA," call it "doing it the right thing because we want to."[8]

 

Should we require a parent?

COPPA, by the way, is one of the laws that uses the age of thirteen as the cut-off age for children being able to sign up for things (commercial or otherwise) on their own.  In my experience, 13 is also the age when insurance carriers decide children transition from "vulnerable" to simply "minors."  For this reason, many content providers and services (including libraries) bar access without a parent to those under 13.

All of which is to say: while there might not be a legal requirement to involve a P/G, in general, I'd say this is a good practice.  Good—but not required.  Remember, to legally enforce any conditions[9] (collect fines), you need a P/G's signature, but if you just want to let a kid borrow a book without consequences enforceable in court, you don't.

 

Let's see some ID?

Okay: you're set with electronic signatures.  You know you need to get P/G into the mix for patrons under 18.  You're "Doing The Right Thing Because You Want To" when it comes to soliciting information from minors under 13.  Do you need to see identification to make things official?

That depends.

If the privileges the library card or access grants come with conditions you will need to enforce in a court of law (fines, damages), it is ALWAYS better to get some form of identification or proof of address.  I say this, because when lawyers sue, proper ID and proof of address is how they know they are suing the right person.

Similarly, if there is an age or residency requirement, or a financial element (for instance, loading money onto an account), or if a person is to have access to another's account, you might need to require ID. 

Because the need for it will vary, when to require ID is a good question for your local attorney.  From my perspective, if a person is allowed to take out more than $10,000.00 worth of library assets at a time, or a library wants to be able to collect fines, I'd want to know how to enforce a return of those items.  Similarly, if patrons are allowed to access services from third-party vendors through their library card (software programs, audio books, anything governed by a third-party license), and there are consequences for a violation, it is good to have solid information about who your patron really is.

The problem is, if you are going to require ID, you must have a solid policies and procedures that address:

  • Requiring ID in a manner that does not disproportionately impact those who live in poverty, or other categories of people[10]
  • Requesting ID
  • Evaluating ID
  • Securely retaining and routinely destroying hard copies of ID
  • Securely retaining and routinely purging electronic copies of ID
  • Have a plan for data breach impacting retained ID

Basically: the reason a library would require ID—aside from verifying that a person lives in the relevant area of service, or is who they say they are—is to collect damages or to legally enforce conditions the patron has agreed to as a condition of a card.  Since that is an unpleasant business, its best to avoid it whenever you can...but when it's important, it's important to do it right.

I enjoyed writing this answer, because as part of it, I got to poke around and see how different libraries are solving this issue.  I saw some great stuff, including a temporary e-access system that let the technology do all the work (requesting verification of age via click-thru, using location services to confirm location in NY, imposing conditions on digital content via function without the need for legal enforcement mechanisms).

It is good to see when the law inspires, rather than quashes, creativity and information access.  I hope your library and library system finds this helpful as you imagine new ways to connect people to vital services!

 



[1] Requiring libraries to not release an individual's library records to a third party.

[2] There ARE some exceptions, but unless your library is hiring a minor to act in their movie, or selling a married couple of 17-year-olds a house, they shouldn't apply here (see General Obligations Law § 3-101).

[3] (15 USCS § 7001) states: "a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form."

[4] This definition's use of "electronic sound" created a rabbit hole where I envisioned a series of "auditory" contract signature proceedings where a person uses their Spotify Playlist to accept contracts.

[5] 15 USCS § 7006

[6] Entities that otherwise would be exempt from coverage under Section 5 of the Fair Trade Commission Act, which most if not all libraries are.

[7] You can find this "encouragement" at https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions-0

[8] A great guide for "doing the right thing" is here: https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions-0#A.%20General%20Questions

[9] By "enforce conditions," I mean contractually, in a court of law.  A library can always ask a 12-year-old to pipe down, and enforce its Code of Conduct if they do not.  But to collect fees, get a P/G signature!

[10] This question is critical to a library's mission.  While there is no "right" answer, I can say that even facially neutral things such as asking for utility bills, pay stubs, or non-driver ID can alienate people within a library's area of service.  I advise maintaining a list of ID types that includes "the usual" types of ID (driver's license, ss card, birth certificate, non-driver ID), and some other types, as well (report card, lease, or any correspondence from a government agency (with private information redacted)).  The list maintained by NYPL, who clearly gets this issue, made me smile: https://www.nypl.org/help/library-card/terms-conditions.

Tags: COVID-19, Policy, Public Libraries, Children in the Library, Library Card Policy, Library Cards

Topic: Friends and Library Cooperation Agreement
There are so many ways the relationship between a library and their Friends can get "complica...
Posted: Wednesday, September 30, 2020 Permalink

MEMBER QUESTION

There are so many ways the relationship between a library and their Friends can get "complicated."

Can you provide a template for an agreement between a library and their Friends?

WNYLRC ATTORNEY'S RESPONSE

NOTE: As a primer to this answer, which mostly consists of the requested template, I suggest reviewing the materials in the ever-excellent "NYLA Handbook for Library Trustees,"[1] particularly the guidance and links on page 85.

"Ask the Lawyer" has addressed the issue of "Friends" relationships before.[2] This question presents a chance to address some common areas of concern pro-actively.

Of course, since an agreement is only as good as the lines of communication between the parties who are in it, aside from reviewing this template in advance of discussing it with your Friends, get ready to spend some time on this.  A good agreement is the product of a lot of discussion, back-and forth, and work for clarity—not the other way around.  And if you can, invite your lawyer to the table.

That said, a simple template can be a handy way to frame the discussion.  So with that, here it is:

 

TEMPLATE Cooperation Agreement

_____________ Library

and the

Friends of the ______________ Library

 

This agreement (the "Agreement") between the _________________ Library (the "Library") and the Friends of the  _____________ Library, Inc. (the "Friends") is intended to further the mission of the Library and the mission of the Friends by clarifying the mission-driven collaboration, shared commitments, and terms for collaboration between the two institutions ("Collaboration").

Mission-driven Collaboration

In all matters involving the Collaboration, the Library and the Friends shall be guided by their missions.

The mission of the Library is:

INSERT

 

The mission of the Friends is:

INSERT

 

In furtherance of their missions, the Parties set forth the below "Shared Commitments."

Shared Commitments of the Library and the Friends

Shared Commitment to Ethics

In all matters involving the Collaboration, the Library and the Friends shall be guided by the ethics of their institutions, including the American Library Code of Ethics, the Library Board's Code of Ethics, the oaths of office of the Library Board Members, and the Friends Board's Code of Ethics, and each parties' Conflict of Interest policy.

Shared Commitment to Legal Compliance and Transparency

As not-for-profit institutions governed by a variety of federal and state laws and regulations, the Parties operate under an array of legal obligations, and hereby commit to model compliance and all appropriate transparency in their stewardship of Library and Friend's resources.

Shared Commitment to the Success of the Library

The Parties agree that the very purpose of the creation of the Friends is the continued viability and growth of the Library, and all their Collaboration shall be to that end.

 

In furtherance of their shared commitments, the Parties set forth the below "Collaboration Terms."

Collaboration Terms

Use of Name

In consideration of the support enabled by this Agreement, the _________________ Library consents to the use of the Library's name in the name of the Friends.

Distinguishing the Entities

Although the Friends are allowed, by this Agreement, to incorporate the name of the Library into their name, each party agrees to exert extreme care to consistently distinguish one entity from the other, and to use their respective EIN's, proper corporate names, when relevant proper Charities Bureau number and corporate identification number, at all times to distinguish one from the other.   

This obligation shall be especially critical during any marketing, contracting, fund-raising, event-planning, and when either party communicates with the public or any oversight authority.

Inter-organizational Familiarity

To ensure mutual awareness of each other, the boards shall maintain a shared record of the current information for both parties, as it is available:

  • Charter (Library); Certificate of Incorporation (Friends)
  • Bylaws
  • Fiscal policies
  • Conflict of Interest policy
  • Current list of Board members and officers
  • Plan of Service (Library); Strategic Plan (Friends)
  • Social networking addresses
  • Meeting Schedule
  • Event Schedule

Board Participation

By no later than DATE, the Library and the Friends shall create and maintain a "Library-Friends Collaboration Committee," with at least three board members from each organization, for the coordination of any aspect of the Collaboration, and shall invite no less than three Library board members to serve on the committee in a voting capacity. The committee itself may also appoint three additional members, by majority vote, but the total membership shall not exceed nine. 

The Library-Friends Collaboration Committee shall have no authority to bind either the Friends or the Library.

Committee members shall serve one-year, renewable terms, which run from January to December (the Friend’s fiscal year).  The Committee shall be co-chaired by one appointee from each board, as named by the President of that board.

The stated purpose and authority of the committee shall be "To maintain a strong and routine collaboration between the Library and the Friends, to facilitate planning in furtherance of the mission of the Friends, and to ensure clarity in matters of fund-raising, fiscal goals, and specific donations."

The Library-Friends Collaboration Committee shall meet no less than quarterly, in furtherance of the commitments of this Agreement.

Annual Contribution Ratio

The Friends shall aspire to direct no less than INSERT% of their total annual income to the Library.  Any departure from this percentage shall be subject to a vote by both parties, based on the planned need to temporarily direct resources in another way, for the benefit of the library (for example, the Friends contracting with registered fund-raising counsel for a capital campaign).

Annual Planning Sheet

As part of the operations of "Library-Friends Collaboration Committee" the committee shall create for each fiscal year an "Annual Planning Sheet."  This sheet will list the special asks the library has (including but not limited to funding for acquisitions, equipment, programming, board discretionary funds, or a capital campaign), and will be used by the Committee and the Friends to determine fund-raising objectives for the year, and to pre-identify any departure from the annual contribution ratio.

Donations

The Friends will encourage donors to make "unrestricted" donations (donations without conditions).

If a restricted donation is accepted (for instance, a donation that requires a naming right, or a certain work of art be placed in the Library) the conditions of the donations must first be reviewed for consistency with the Library's controlling documents and strategic plan, and then accepted via a majority vote by the Library's board.

It is expected that at all times the Friends shall maintain appropriate records of donations and donor-restricted donations and shall issue, in a timely manner, letters of acknowledgement in furtherance of any tax credit the donor may qualify for.

Grants

The Friends may apply for grants from government and private entities for the benefit of the Library, but prior to applying for the grant, the conditions of the grant must first be reviewed for consistency with the Library's controlling documents and strategic plan, and then accepted via a majority vote by the Library's board.  This is to ensure that the time and resources used to apply for the grant are not wasted.

If the Friends apply for grants from government and private entities for the benefit of the Friends (for instance, to purchase donor management software, or to buy equipment the Friends will use for events), the Library does not need to be consulted.  However, the Friends and the Library will, through the Collaboration Committee, maintain awareness of grant applications, to ensure there are no redundant requests.

Annual Accounting

In MONTH of each year, the Treasurer of the Library, and the Treasurer of the Friends, shall meet to exchange financial reports, and to independently and/or jointly develop any observations or advice they as Treasurers may have for the Committee or their respective boards.

No Library Resources for Fund-Raising

It is understood between the Library and the Friends that no library employees shall staff a Friends' fund-raising event, and no Library resources whatsoever shall be used in furtherance of such event.[3]

Appropriate Boundaries

To avoid any concerns regarding authority and responsibility, no members of the Friends Board shall volunteer at the Library.

Dispute Resolution

To avoid any concerns to the detriment of the Friends or the Library, in the event either party believes the other has violated its mission, formation documents, charitable purpose, applicable laws and regulations, or this Agreement, the concerned party shall notify the other in writing.

If the dispute is not resolved within ten days, the parties shall agree to retain a New York Bar Association-listed mediator to resolve the dispute.  To select the mediator, the Library shall supply a list of 5 qualified candidates, and the Friends shall select the mediator from the list.  As part of their service as a neutral party, the Mediator shall certify that they may serve without a conflict of interest.

If one full-day session of mediation does not resolve the dispute, the concerned party may seek such other relief as appropriate.

Bi-annual Agreement Review and Amendment

This agreement shall continue for so long as the Friends continue activities for the benefit of the ______________ Library.

Every two years, the officers of the Friends and the Library, shall meet to review this Agreement, or refine their practices that are governed by it, as needed.

This Agreement may be amended through a two-thirds vote by both boards within the same two-month period.

Effective Date and Term

The Agreement is effective upon the date of incorporation of the Friends, and shall continue for so long as both parties are in existence.

With this understanding, on ________, the Board of the ___________________ Library passed a resolution to enter this Agreement effective as of _________________, and the Board of the Friends of the  _____________ Library, Inc. passed a resolution to enter this Agreement effective as of ____________, as signified by the signatures below.

[insert signatures, etc.]



[1] Found at: http://www.nysl.nysed.gov/libdev/trustees/handbook/handbook.pdf

[2] Specifically, here: https://www.wnylrc.org/ask-the-lawyer/raqs/113

[3] This is to avoid any risk of library resources being used in furtherance of a private organization.

Tags: Friends of the Library, Public Libraries, Template

Topic: Template Facility Use Agreemnet - 9/29/2020
Can you provide a template facility use agreement for renting or allowing community groups to regu...
Posted: Tuesday, September 29, 2020 Permalink

MEMBER QUESTION

Can you provide a template facility use agreement for renting or allowing community groups to regularly use space in a public or association library?

WNYLRC ATTORNEY'S RESPONSE

Yes, I can!  But first, a few caveats:

  • Any template contract is just a starting point.  Use a lawyer to generate a version of this document customized to your library. 
  • For any Organization that wants to use your library for a high-risk event (sports, concert with stage or sound equipment, large event open to the public, routine presence of children), whenever possible, additional review for insurance concerns and premises liability is wise.
  • When filling this out, always make sure the nature of the Organization is confirmed (individual, DBA, LLC, NFP, corporation, etc.), and you have confirmed they exist as stated. 
  • If the form shows that an activity requiring a professional license is going to happen (haircuts, massage, tax prep, legal clinic) obtain a copy of the insurance coverage for the professional activity and make sure it names your Library.
  • No political events should occur unless it is confirmed the arrangements conform to IRS and NYS Charities guidance.
  • A copy of the signed contract should be kept for 7 years (because the statute of limitations to sue on a contract is 6 years). 

 

ABC Library

FACILITY USE CONTRACT

This contract for facility use is between the ABC Library (the "Library") and INSERT NAME ("Organization") an [insert type organization/individual] ("Organization") with an address of [INSERT], for temporary use of [INSERT ROOM# or Description] in the Library (the "Space").

Details of Temporary Use

 

Date(s) and time(s) of use

 

 

NOTE:  If use is routine ("Every Monday in 2020") note the routine

 

 

 

Purpose of use (the "Event/s").  Please describe the activity to be conducted while you are using the Space.

 

 

 

 

 

Estimated maximum attendees

 

 

 

Will you bring in any contractors or third parties under contract for this event?

 

If so, you must provide the Library with a copy of the contract and they must name the Library on their certificate of insurance.

 

 

 

Please list any special details

 

 

 

Person from Organization who will oversee Organization's use of the Space (must be present at all times) and their back-up person

 

Name:

Cell number:

E-mail:

 

Name:

Cell number:

E-mail:

 

[If applicable]

 

Rental Fee on a per-use basis

 

NOTE:  If the use is charitable and the fee is to be waived, the use must not involve any political activity as defined by the IRS.

 

 

 

[If applicable]

 

Fee is payable to [INSERT] and shall be paid by:

 

 

 

Will minors unaccompanied by parents/guardians be attending the event at the Space?

 

If yes: does Organization have a policy barring abuse of minors, and requiring instances of abuse of minors in connection with Organization's programs to be reported to law enforcement within 24 hours?

 

 

 

Is Organization a chapter or affiliate of a larger organization?

 

If so, include larger organization's name.

 

 

 

Will the event involve food or the creation of materials to dispose of?

 

If yes, what time will clean-up, including removal of all trash and recycling generated by the event, be completed?

 

 

 

Organization's Library Contact (the person who will help them with any questions and address any concerns)

 

 

Name:

Email:

Cell:


Library Mission and Terms of Use


The ABC Library's mission is [INSERT].

As part of its mission, the Library requires that all people on Library property abide by all the Library's policies.  In addition, while using the Space, Organization and any person at the Space in affiliation with Organization must at all times follow the below rules, and any reasonable request of any Library representative.

Rules include:

No harassing, abusive, or demeaning activity directed at any person or the Space.

No contact that violates any applicable law or regulation.

In the event of an emergency at the Library, Organization shall abide not only by the reasonable request of any Library representative, but also any first responder assisting with the emergency.

In the event of any injury to any person, or incident of property damage while the Space is in use, Organization will immediately notify the Library Contact listed in the chart above immediately.  In the event of a crime or medical emergency, call 911.

Aside from those attending the event(s) in the Space sponsored by Organization, no filming or taking pictures of any individual in the library (visitor or employee) is allowed, without their express permission.

After use, the Space will be restored to the condition it was in prior to Organization's use, by the Organization, unless otherwise specifically confirmed with the Library Contact.

Organization will not promote the event using the Library/Space as the location until this contract is fully signed and (if applicable) Organization has paid the applicable Rental Fee.

Drafting note: if the Library does not own the building, add any other rules based on requirements in the lease.

Violation of any rules may result in the termination of this Contract with no refund, and denial of future use.

Emergency Cancellation

This Contract guarantees that Library will reserve the Space for Organization as set forth in the "Details" section, above. However, in the event the Library or a related entity experiences an emergency which, in the sole determination of the Library, requires the cancellation of the use (including but not limited to condition at the facility, weather emergency, or event requiring Library's emergency use of the space), Library shall notify Organization as soon as possible, and work with Organization to refund the fee or determine a new date, whichever is preferable.

Indemnification
To the greatest extent allowed by law, Organization hereby agrees to indemnify and defend and hold harmless the Library, its Board of Trustees, employees, agents, and volunteers, from any and all causes of action, complaints, violations, and penalties, and shall pay the cost of defending same, as well as any related fines, penalties, and fees, including reasonable attorneys' fees, related to Organization's use of the Space, including conduct by any third party or contractor present at the Space as part of the Event/s.

Insurance
Organization shall provide insurance meeting the requirements shown in exhibit "A."

Drafting Note/Instruction: the person at the Library organizing the contract will either select the default insurance requirement, which is the conventional insurance demand, or it shall be determined that no insurance is required.  For organizations conducting routine meetings, and especially if children are served by the Organization, the library's lawyer, and/or your insurance carrier will almost always advise insurance be required. 

Person signing for Organization
The person signing on the line below on behalf of organization is at least 18 years of age and has the power to sign for the Organization.
 

Venue for Dispute
This contract and any related action shall be governed according to the laws of the state of New York, and Venue for any dispute shall be INSERT county, New York.

Accepted on behalf of the Library:___________________     on:___________

                              Print name:__________________

 

 

Accepted on behalf of the Organization:___________________          on:___________

                              Print name:________________________
 

Tags: Association Libraries, COVID-19, Emergency Response, Meeting Room Policy, Policy, Public Libraries, Template

Topic: Memorandum of Understanding for Municipal Libraries - 09/25/2020
I work with a number of municipal public libraries - some are village, others are town. Some libra...
Posted: Friday, September 25, 2020 Permalink

MEMBER QUESTION

I work with a number of municipal public libraries - some are village, others are town. Some libraries use their municipality's employee handbooks, payroll, services like snow blowing and building maintenance, and have the municipalities cut the checks.

It would be helpful to have a clear understanding that the libraries are not a department of the municipality and that the board of trustees is in charge of the library, hiring staff, evaluating staff, approving expenses, and have complete control of the budget.

It would also be helpful if there was a sample MOU that spells out the division of responsibilities clearly.

WNYLRC ATTORNEY'S RESPONSE

Many of the questions we get at "Ask the Lawyer"[1] relate to this concern.  As the priorities cited by the member suggest, the library-municipality relationship is a Big Issue.

I have worked with city, town, and village attorneys, in one way or another,[2] for most of my professional life. So I can understand why sometimes, if they are focusing on reducing liability or overhauling operations, a town board or a city mayor might be tempted to think of the library as "just another department."

But we know that is not the case.

With all that in mind, I am very grateful to have this opportunity to craft a pro-active answer to this issue.

I am going to let the requested sample Memorandum of Understanding—or "MOU"—do most of the talking on this topic.  For comments on why I have included certain things, you'll see footnotes and items in italics that should be removed from any final version (unless you have a really fun-loving and tolerant town attorney).

Caveats

Of course, with all things "template," this MOU should only serve as a boilerplate.

Further, libraries with very sensitive or less-than-ideal relationships with their municipalities might want to use this only as an internal guide for discussion.  It's not a fun fact, but it remains a fact that some municipal leaders could take a "request for clarity" as an act of aggression.

And as noted throughout, to the greatest degree possible, your library should consult their own attorney about the different considerations in this template.[3]  With that in mind, I hope this document is a useful starting place for that attorney, and I welcome calls from lawyers working with this document.[4]

And here we go:

USING THIS TEMPLATE:  Any guidance in italics, and the footnotes, should be removed before an MOU using this template is finalized.  If at all possible, the MOU and attachments should be reviewed by an attorney before signature.  Items in bold are non-negotiable; they are based on the law and are not subject to change.[5]

 

[PROPOSED] MEMORANDUM OF UNDERSTANDING

Between the [NAME] Library and the [MUNICIALITY]

This memorandum of understanding is between the [NAME] Library (the "Library") and the [INSERT NAME OF MUNICIPALITY] (["GOVERNMENT ENTITY" or "GE"][6]), which both serve the community of [INSERT NAME OF MUNICIPALITY] (the "Community").

This memorandum of understanding ("MOU") is entered into by the Library's Board of Trustees (the "Library Board") and the [AUTHORITY OF THE ENTITY[7]] ("[GE AUTHORITY]"[8]) and is intended to ensure clarity and unified purpose with regard to critical interdependencies between the Library and the GE.  Together, the Library and the [GE] are the "Parties" to this MOU.

As a living document this [first] version of the MOU sets forward both items of clarity, will be revisited by the Parties in the month of [INSERT] every [TIME SPAN[9]].  

Mission and Shared Purpose

The mission of the Library is [INSERT MISSION].

The mission of the [GE] is to [INSERT MISSION].

The Library and the [GE] share the mission-oriented purpose of serving the Community within the [GE] by [compose and insert "shared purpose"[10]]; this is their "Shared Purpose." 

 

The Parties

The Library is a public library chartered by the Regents of the New York State Education Department on [DATE], as shown in the most recent version of the Charter attached as "A" (the "Charter").[11]

As required by law, the Library is governed by a board whose authority is set by sections 255, 256, 260, and 226 of the New York Education Law, the Not-for-Profit Education Law, the Charter, and the bylaws of the library.  A copy of the most current bylaws of the Library is attached as "B."  

The [GE] is a Municipal Corporation incorporated under the laws of New York State in [YEAR]. 

As required by law, the [GE] is governed by [INSERT][12].

A copy of the [GE] Code (the "Code") may be found at [insert code link[13]]. 

[IF RELEVANT] The provision[s] of the Code pertaining to the Library are attached as "C."

 

The Relationship of the Parties

As a Regents- chartered entity, the Library is an independent corporation with the ability to own property, enter into contracts, employ a workforce, and maintain its own bank account for the management of library funds. 

Further, the Library is required by state law and regulation to employ adequate employees to staff the Library in fulfillment of its Plan of Service, which is attached as "D."[14]

Since the [GE] and the Library are two distinct entities, many of their operations occur independently of the other.  However, for the sake of their Shared Purpose, the leadership of the parties have determined that certain "Critical Interdependencies" are in the best interests of the Community.

These "Independent Operations" and "Critical Interdependencies" are itemized below, with comments or additional information in column 3.[15]

Operational item

 

Independent Operation or Critical Interdependency?

When possible, check your conclusion with your lawyer before making a final determination.

Important information or attachment

 

Ownership of Library Building

 

This should specify if the library or the municipality owns the structure housing the library. 

 

If the GE owns the structure but charges no rent (or $1), it is a "critical interdependency." 

If the library owns its premises, it is an "independent operation."

 

 

Attach a survey or schematic of the library's complete property as "F".[16]

 

Maintenance of Library: capital improvements

 

This should specify who takes the lead on capital projects and how the parties will work together for remodeling or building a new library.

 

 

 

By "take the lead," I mean: who signs the contracts for the work and manages the different factors in the capital project?

 

If the GE "takes the lead" on capital improvements, it is a "critical interdependency."  If the library takes the lead, it is an "independent operation."

 

 

 

 

The library should always have copies of warrantees and contracts related to capital improvements.

 

Maintenance of Library: emergency repair

 

This should specify what happens when a pipe bursts and you need to stop the water and fix the pipe, or who makes sure the elevator gets fixed promptly (we'll handle damage to library assets in another section).

 

 

If the GE is responsible for arranging emergency repair, it is a "critical interdependency." 

 

If the library does, it is an "independent operation."

 

 

 

This is a great place to list who to call in the event of a facilities emergency.

 

Maintenance of Library: landscaping and snow removal

 

This should specify if the library or the municipality does the work or contracts for it.

 

 

If the GE is responsible for external routine maintenance, it is a "critical interdependency." 

 

If the library does, it is an "independent operation."

 

 

This should establish not only the party responsible, but set the expectations for service (for instance, should the driveway be plowed before the employees arrive on a snowy day?  That sounds good to me).

 

If performed by a third party, the library should always have copies of contracts related to grounds maintenance, even if the contract is with the GE.

 

Maintenance of Library: routine cleaning

 

This should clarify the line between "routine" cleaning (like weekly vacuuming) and "non-routine cleaning" (like cleaning up when a printer cartridge breaks open near the rare book room), and specify if the library or the municipality does or contracts for the work.

 

 

If the GE is responsible for routine cleaning, it is a "critical interdependency." 

 

If the library does, it is an "independent operation."

 

 

If performed by a third party, the library should always have copies of contracts related to routine cleaning, even if the contract is with the GE.

 

Details such as when the cleaning is, and the levels of access of workers, are important to clarify.

 

Damage to library structure: insurance coverage

 

This should specify what insurance covers damage to library structure.

 

 

 

If the GE coverage applies, it is a "critical interdependency." 

 

If the library supplies its own coverage, it is an "independent operation."

 

 

The board should always have a copy of the policy covering the library structure, and the copy should be in the cloud, not just in the library.

 

Always.  This should not be left to chance.

 

Current insurance policy or amount determined for "self-insurance" by municipality is attached as "F."

 

Library Security Personnel

 

This should specify if the library or the municipality supplies any security personnel. 

 

 

If the GE is responsible for security personnel, it is a "critical interdependency." 

 

If the library employs or contracts for its own security, it is an "independent operation."

 

 

Any discussion of this or contracts relating to security should emphasize rights of access and patron confidentiality, and clearly establish who is "in charge" of the security personnel (who tells them what to do).

 

 

Library Security System, including any cameras

 

This should establish who pays for, monitors, and owns the system and any content on it.

 

 

If the GE is responsible for security personnel, it is a "critical interdependency." 

 

If the library employs or contracts for its own security, it is an "independent operation."

 

 

Any discussion of this or contracts relating to security should emphasize rights of access and patron confidentiality![17]

 

 

Insurance coverage for damage to library assets (collection, furniture, equipment)

 

This should specify what insurance covers damage to library assets (not the structure).  The type and amount of coverage should be assessed on an annual basis by the board of trustees.

 

 

If the GE coverage applies, it is a "critical interdependency." 

 

If the library supplies its own coverage, it is an "independent operation."

 

To help with this item, a library should have an inventory of its assets. 

 

 

The board should always have a copy of the insurance policy covering the library assets, and the copy should be in the cloud, not just in the library.

 

Always.  This should not be left to chance.

 

 

Current insurance policy is attached as "G."

 

Employees: who is the employer

 

 

The employer of the employees is the library, not the [GE].

 

 

 

This is not negotiable.

 

Employees: who processes payroll and tracks leave accruals[18]

 

 

If the GE issues the paychecks, it is a "critical interdependency." 

 

If the library runs its own payroll, it is an "independent operation."

 

 

Whatever entity (or third-party contractor) is doing this, it must be done properly and with proper retention of payroll records and paid time off accruals.

 

Employees: who administers benefits

 

 

If the library employees get benefits (health insurance, retirement) through the GE this is a "critical interdependency." 

 

If the library arranges its own benefits, it is an "independent operation."

 

 

Copies of Summary Plan Documents ("SPD's") or other benefit descriptions are attached as "H"

 

Employees: what coverage applies for workers' compensation, paid family medical leave, and disability?

 

 

If the library employees are covered through the GE, this is a "critical interdependency." 

 

If the library arranges its own coverage, it is an "independent operation."

 

 

This is another one to have absolute clarity on! 

 

Your library should have the most recent mandatory postings[19] up in an area accessible to employees, confirming this clarity.

 

Employees: what employee policies apply, and who is responsible for determining them

 

 

The employer of the employees is the library, not the municipal entity.  While the library may "borrow" some or all municipal policies, within the constraints of applicable law and regulation, the board of trustees determines the employment policies.

 

 

 

Sexual harassment/civil rights complaints, whistleblower complaints, resolving conflict of interest matters

 

 

These complaints must always be managed by the Library Board per the relevant library policy.

 

 

 

Library Emergency Response Plan(s)

 

Optional but encouraged

 

 

The entity responsible for the library's response in an emergency is the Library Board, not the municipal entity.  While the library may "borrow" some or all municipal policies, within the constraints of applicable law and regulation, the Library Board determines any emergency response-related policies.

 

 

 

Facility use policies

 

 

 

Regardless of whether the library owns the building, or is a "tenant," only the Library Board determines facility use policies of the library (for example, rental or free use of rooms and other library space).

 

 

A good facility use agreement establishes the rules of use, confirms if/how liability for the use is transferred (hold harmless, indemnification), and addresses if insurance is necessary.

 

Banking

 

Who hangs onto the money?[20]

 

 

 

Library funds are solely controlled by the library, regardless of where the funds are kept.

 

Even if the operational funds of the library are held by the GE, this "critical interdependency" should be confirmed as being in aid of separate and distinct library finances solely controlled by the Library Board.

 

 

Money can be a HUGE source of dysfunction between a library and its municipality.  Before picking any battles, the Treasurer, director, and board should have clarity about their expectations and goals for stewarding the funds of the library.  This is a good topic to stay in touch with your system, Library Development, and your lawyer on.

 

Fiscal controls (petty cash, cash handling policy, book-keeping, accounts receivable and payable, use of credit card, tracking restricted funds, tracking capital funds)

 

 

To the extent needed, and consistent with a public library boards autonomy over library finances, these policies are to be adopted by the Library Board.

 

 

Audit

 

Different libraries will have different audit obligations, but all are subject to audit by the New York State Comptroller.

 

Any audit of the library should be done with the awareness of the library board.

 

 

The last 10 years of audits should be accessible for review by the parties.

Procurement and disposal of library assets[21]

Although controlled to a certain extent by law, procurement and disposal of library assets are solely controlled by the Library Board.

 

 

 

Budget

 

 

The library budget is passed by the board.

 

 

 

Library System

 

 

The library board is the entity that decides to sign any Library System membership agreement.

 

 

A library facing a determination based on any of the factors in this chart should reach out to their System as soon as possible for assistance.  Although every system is different, they will be a critical ally in navigating these items.  Remember, you are not alone!

 

 

Custom factors special for your library

 

 

Every library is different.  Use this section to track custom factors that impact your library-municipality relationship.

 

There are so many cool, odd, special things out there in library world, I am only surprised when a day goes by and I haven't learned about a new one.

Directors and Officers insurance and/or indemnification of library trustees

If the GE provides coverage and/or indemnification[22], this is a "critical interdependency." 

 

If the library has its own policy, it is an "independent operation."

 

 

The board should always have a copy of the policy covering the library trustees and directors against assertions of liability in the course of their library duties.

 

Always.  This should not be left to chance.

 

Current insurance policy is attached as "I."

 

Acknowledged on behalf of the [NAME]Library on _______:

BY: _______________________________________________

 

Acknowledged on behalf of the [NAME of ENTITY] on _______:

BY:______________________________________________

 

 

Attachments:

A: Library Charter

B:  Library Bylaws

C:  Section of municipal code pertaining to library

D:  Library Plan of Service

E:  Survey or schematic of library property

F:  Current Insurance Policy (premises)

G:  Current Insurance Policy (assets)

H:  Benefit documents

I:   Current Insurance Policy ("Directors and Officers Insurance")



[2] My first experience with municipal law was when I worked for attorney Dan Seaman, who has served as the town attorney for many towns and villages in Niagara County, New York.  My former partner Daniel Shonn was the town attorney for Akron, NY, and I covered town meetings from time to time.  I worked closely with the Town of Lewiston and the City of Niagara Falls attorneys when I was the in-house counsel at Niagara University.  And lately, even though I love my city very much, I just can't stop suing Buffalo (on behalf of clients), so they are really getting to know me at the city law department.

[3] Critical difference between an "MOU" and a contract: an "MOU" is, by design, not intended to be enforceable-although it may recite items that are enforceable via other means (for instance, if they simply recite something that is mandatory under the Education Law, which this one will).  For libraries seeking to elevate an MOU to an enforceable agreement, it is best to work with a lawyer from the get-go.

[4] (716) 464-3386, or adams@losapllc.com.

[5] Any NY library system that wants a fillable version of this MOU Template can write to Jill@stephaniecoleadams.com

[6] For this item, you will select whatever type of entity you are working with: city, town, or village.  For this template, we're going to call it the "GE" (for "government entity"), although that will make it sound like you are trying to make them turn right in the 1800's.

[7] The authority entering into the MOU will vary depending on the entity type.

[8] This name will also be modified to reflect what applies to your municipality: Town Supervisor, Village Board, City Common Council, etc.

[9] This "time span" should be selected to ensure you never have a fresh board of trustees and municipal leaders who don't know how things need to function.

[10] A nice "shared purpose" might be "the service and betterment of those living in our community."  It's nice to revisit the "shared purpose" every now and again so leadership is invested in it and it doesn't get stale. 

[11] Make sure you use the most recent version of the Charter.  An updated copy can be obtained via a request to New York State Education Department, Division of Library Development.  If there is enabling legislation, attach that, too, since the legislation can impact some of the variables in the chart.

[12] This is whatever combination of leadership calls the shots for the municipality: town supervisor and board, etc.

[13] I am sure I don't need to tell a library audience that most municipalities have their codes online, but I just love footnotes.

[14] Yes!  This MOU will need a binder or a routinely updated database to hold all the attachments!  Don't you love it?

[15] From what I have seen—and at this point, it's a lot—every library working with a municipality handles this differently.  It's like a Myers-Briggs personality test...endless permutations, even within similar types.

[16] Knowing the exact physical footprint of the library is critical!  Among many other things, this is how you set the boundaries for the limit on things such as, for example, smoking near the property.

[17] This is critical for compliance and clarity about patron records under the New York Civil Procedure Laws and Rules (CPLR) 4509.

[18] A not-so-fun, but instructive, read on this topic is found in the NY State Comptroller Audit found here: https://www.osc.state.ny.us/sites/default/files/local-government/audits/2018-09/lgsa-audit-library-2018-brentwood.pdf

[19] A list and copies of most postings is here: https://labor.ny.gov/workerprotection/laborstandards/employer/posters.shtm

[20] Extensive information on this topic is found here: http://www.nysl.nysed.gov/libdev/trustees/handbook/pltreasurer.htm

[21] A good example of this is in Ask the Lawyer https://www.wnylrc.org/ask-the-lawyer/raqs/68

[22] "Indemnification" is when an organization defends a director, officer, or employee in a lawsuit (like a discrimination claim).

Tags: COVID-19, Emergency Response, Public Libraries, Memorandum of Understanding, Municipal Libraries

Topic: Public restroom availability in reopening - 9/16/2020
A small, rural public library, we have public restrooms. In pre-pandemic times, our restrooms were...
Posted: Wednesday, September 16, 2020 Permalink

MEMBER QUESTION

A small, rural public library, we have public restrooms. In pre-pandemic times, our restrooms were not kept locked, and were cleaned once a day by our building's maintenance person.

Both restrooms are ADA-compliant and include a changing table. We have already installed motion sensors on the toilets and sink and replaced the hot air dryer with paper towels. Currently, our building is only open to staff and they wipe down touched surfaces with cleaner after use, and initial that they have done so on a bathroom cleaning log as required by our Safety Plan.

As we edge toward reopening to the public, we have many questions around these restrooms. Should we lock the restrooms and require the public to ask for a key? Should we lock the restrooms to the public entirely? Should we return to our pre-pandemic practice of completely open restrooms cleaned once a day? Should we require non-janitorial staff to clean the restrooms during open hours, and, if yes, how often, and do they require training on the products and methods required to clean a public restroom during a pandemic--and what kind of PPE does that require?

Any guidance on how to handle ostensibly public restrooms in an ostensibly public building is appreciated.

WNYLRC ATTORNEY'S RESPONSE

Like many of you, I have had to tackle a lot of previously unaddressed conundrums since March of 2020.  Especially when it involved developing a Safety Plan, this "tackling" has required research, patience, a good sense of humor, and lots of flexibility.[1]

The issue of how to handle 1) newfound concerns regarding the sanitary conditions of workplace toilets; and 2) newfound concerns about sanitary conditions of toilets in public spaces, is one of the most high-stakes and complex.  It can cause a lot of anxiety.

When a matter makes me anxious, I resort to either exercise, or exacting linguistic specificity.  Since you don't come to "Ask the Lawyer" for workout tips[2], I will address this anxiety-provoking issue with exacting linguistic specificity, starting with the Occupational Safety and Health Administration (OSHA)'s definitions of the different terminology used for bathrooms[3]:


Personal service room, means a room used for activities not directly connected with the production or service function performed by the establishment. Such activities include, but are not limited to, first-aid, medical services, dressing, showering, toilet use, washing, and eating.

Toilet facility, means a fixture maintained within a toilet room for the purpose of defecation or urination, or both.

Toilet room, means a room maintained within or on the premises of any place of employment, containing toilet facilities for use by employees.

Urinal means a toilet facility maintained within a toilet room for the sole purpose of urination.

Water closet means a toilet facility maintained within a toilet room for the purpose of both defecation and urination and which is flushed with water.
 

Now, before we go further: a few words about OSHA.  Based on size, location, type, and a dozen other factors, there is no one-size-fits-all for OSHA compliance. But public employers (like many libraries) in NY are required to follow OSHA's standards for employee toilets[4], and non-public employers, whose bathroom-supplying obligations will change by site and size of the organization, can refer to those standards for inspiration.[5] And OSHA (along with the Center for Disease Control, or "CDC") is currently a New York State Department of Health (NYSDOH) go-to for COVID-related sanitization information. 

So with those three resources in mind (NYSDOH, CDC, and OSHA), let's address the member's questions:

QUESTION 1: Should we lock the restrooms to the public entirely?

The first question to address in this is not "should" the library lock the restrooms to the public entirely, but can it?

Any library considered a place of "public assembly,"[6] by state regulation, must have a bathroom open to the public.[7]  However, the definition of a "place of public assembly" expressly excludes public association and free libraries, so yes, and while a municipal library will have a few more hoops to jump through, an association library can decide to limit access by the public.

If your library isn't required to have a "toilet facility" accessible by the public[8], and the capacity of your library means the toilet facility can't be routinely cleaned per the NYSDOH's recommendations, it is worth considering reducing or shutting access down.[9]

 

QUESTION 2: Should we lock the restrooms and require the public to ask for a key?

If this would help monitor use so the bathroom can be cleaned on an as-needed basis per NYSDOH/CDC/OSHA recommendations, yes, that is a viable option, and can be included as part of a Safety Plan. 

Should we return to our pre-pandemic practice of completely open restrooms cleaned once a day?

OSHA states: "Employers operating workplaces during the COVID-19 pandemic should continue routine cleaning and other housekeeping practices in any facilities that remain open to workers or others. Employers who need to clean and disinfect environments potentially contaminated with SARS-CoV-2 should use EPA-registered disinfectants with label claims to be effective against SARS-CoV-2."

Meanwhile, the Phase II Safety Plan template from New York State requires any library to: "Conduct regular cleaning and disinfection at least after every shift, daily, or more frequently as needed, and frequent cleaning and disinfection of shared objects (e.g. tools, machinery) and surfaces, as well as high transit areas, such as restrooms and common areas, must be completed."

So, although there is no mathematically determined heightened standard, these requirements show that routine disinfection should be based on frequency of use, and at a bare minimum, bathrooms should be disinfected at least "once per shift," and there should be a log to register each cleaning (just as the member described they are already doing).

 

QUESTION 3: Should we require non-janitorial staff to clean the restrooms during open hours, and, if yes, how often, and do they require training on the products and methods required to clean a public restroom during a pandemic--and what kind of PPE does that require?

This is a tricky question.  "Requiring" non-janitorial staff to do a task not in their job description risks concerns with morale, operational consistency, and if there is a contract involved, compliance (this will vary from library to library, of course).  And if the cleaning supplies trip a person's health conditions, there might also be concerns with ADA. 

Because of this, like all aspects of the Safety Plan, the requirement to sanitize surfaces in the bathroom(s) must be planned carefully. 

That should start with an analysis of the toilet facility, just as the member asking this question has done.  Does it have one toilet or many?  Does it have touchless sinks or sinks with handles?  Is the tile in good condition, or is the grout failing?  In short, what does it take to sanitize your library's unique space effectively?

One you've done the analysis, select the right products from the EPA's list of products known to effectively combat COVID-19, and based on the instructions on the product, select the method of disinfection that meets the needs of your operation, including the frequency.  And once you have established the method and the frequency, the requirements for employee PPE and training are here: https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html and they include a link to a pdf poster about safe disinfection of the work site: https://www.epa.gov/sites/production/files/2020-04/documents/disinfectants-onepager.pdf.

 

And finally, the last part of the member's submission: Any guidance on how to handle ostensibly public restrooms in an ostensibly public building is appreciated.

This is a great summarizing statement, because as it hints, and as this answer reviews, not all "public" restrooms are actually required to be open to the public at all.  Once you have confirmed the requirements for your particular library, it's time to assess what you can do—and what your mission demands that you do.  If that means reducing toilet facility access to minimum required levels, so employee energy and your library's budget can focus on service to the public, make it so.  If that means re-allocating part of the budget to hire a contractor specifically to clean the bathrooms every four hours since your library knows public access is either required or essential, and your library isn't situated to add that to employees' job descriptions, do that.  And if that means employees are expected to take on new duties to effect routine sanitization, develop a well-thought-out rollout plan[10] before implementing that as an express job duty.[11]

But whatever you do with the restrooms, the key is to consistently document that your library is following the NYDSOH, CDC, and OSHA guidelines suited to its unique site, location, and identity.

Thank you for a great question and a great example of the care libraries are taking to stay open and safe for the public.

 

 



[1] One of my co-workers rejected my first idea for managing our narrow hallway in the office.  "I will not announcement my presence by yelling "Gang Way!", Cole."  We settled on a protocol of visual inspection, first.   Even when your name is over the door, a Safety Plan is a matter of give and take.

[2] That said, if you suffer from carpel tunnel or sore forearms from too much typing, put your hands down flat (palm side up), stand on your fingers/palms, and pull upwards for 1minute 3xday.  Changed my life. 

[3] The OSHA-specific information is aggregated at this link: https://www.osha.gov/SLTC/covid-19/covid-19-faq.html#restrooms

[4]  This standard is enforced by the New York State Department of Labor Public Employees Safety and Health Bureau (NYSDOL PES) for public employees.

[5] Further information on required numbers of toilets can be found here, but for the sake of brevity, I am not going to go there: https://www.dos.ny.gov/DCEA/pdf/TB-2011-BCNYS%20-%20Minimum%20Required%20Toilet%20Facilities%20Based%20on%20Occupancy.pdf

[6] Per New York State Labor Law, §2, a “Place of public assembly” shall include (1) a theatre, (2) moving picture house, (3) assembly halls maintained or leased for pecuniary gain where one hundred or more persons may assemble for amusement or recreation, except (a) halls owned by churches, religious organizations, granges, and public association and free libraries as defined by section two hundred fifty-three of the education law, and (b) hotels having fifty or more rooms. [emphasis added, note the exclusionary language].

[7] 12 NYCRR 36-2.8

[8] Be careful in this analysis; if possible, confirm any conclusion that you don't have to have a public bathroom with your local attorney, or the municipal building inspector.

[9] Just be mindful that General Business Law Section 492 requires any place of business with an employee bathroom to let a visitor use that bathroom if it is a medical necessity.  While your library might not be a "place of business" under that law, people with medical needs may have an expectation of access.  Be ready to be flexible if there is a medical need for a toilet facility.

[10] This could simply mean thinking the Safety Plan through, meeting with employees to make sure they are on board with it, and making sure every employee has clarity about safety.  It can also mean working with your civil service agency or local attorney, so any contractual aspects are properly considered.  Since these are tense times for employees, good planning and communication about job duties is essential.

[11] In many library environments, it will be fine to add sanitization as a "duty as assigned," but in other places (with detailed job descriptions, a union contract, or contracts or policies that could impact the "assignment") it will not.  This concern cannot be answered generally; it will vary from library to library.

Tags: COVID-19, Emergency Response, Public Libraries, Reopening policies

Topic: Temporary disuse of a meeting room - 8/26/2020
My library's reopening plan calls for not allowing group meetings/ programs for a time. The...
Posted: Wednesday, August 26, 2020 Permalink

MEMBER QUESTION

My library's reopening plan calls for not allowing group meetings/ programs for a time.

There is some concern for a BOT member as to if the library can legally do this. The concern is if a community group or club that regularly meets in the library were to want to meet again, could they challenge the library in regards to this issue? In a nutshell, the question is "Do we legally have the right to suspend and not allow all meeting room use as the library reopens?"

As library director my thought process is that as long as the policy is being equally and fairly enforced to everyone then there should not be an issue. This does beg the question however as to what may happen if the city, which owns the building calls "eminent domain" and quickly demands use of a meeting space they own in an emergency circumstance. This is rare but has happened a few times in the past.

Any input you have would be greatly appreciated.

WNYLRC ATTORNEY'S RESPONSE

I have been looking at some of my post-COVID "Ask the Lawyer" responses, and they are pretty grim.  Such serious writing.

Of course, these are serious days, and operating during COVID-19 is a serious topic.

But I have been on the lookout for a chance for some joy, if not some outright levity.  And finally, this question supplies one!

Why would a question about temporary disuse of a meeting room make me happy?  Well, as some of you may have noticed, very little gratifies me more than emphasizing a library's autonomy.[1]

So, hear me rejoice: Yes, your library has the right to disallow all meeting room use in the interest of safety!

And if that isn't joyful enough, get ready for more good news: this is true whether your library is a tenant or a landowner, a public library or an association library, a library in a big city or a library in a small rural village!

Why is that?  If a chartered library in New York has assessed its unique space, its unique operational capacity, and its unique ability to operate safely, and as a result has adopted a Safety Plan that does not allow meeting spaces or on-site programming, then...there will be no meeting use or on-site programming.  It's as simple as that.

Now, that said, can someone try and complain about it?  Sure.[2] Can a building owner (like a town or a landlord) try and over-ride it? Yes.[3]  Could a pre-COVID contract be implicated?[4]  Yes.  But as an autonomous entity governed by an independent board, can your library make a Safety Plan and stick to it?  Yes.

As it should be.

Of course, within that autonomy is the obligation to steward and utilize library assets responsibly, and in compliance with the law.[5]  This is why the member's point about uniform enforcement and clarity is so important.  If the access is restricted for the Book Club, it needs to be restricted for the Comic Book Club, and even for the Garden Club.[6]  But after ensuring basic fairness and compliant use of library resources, the baseline decision about what facilities to allow access to during the pandemic is in the hands of the library's board and director.  And as I have said in many of my recent answers: they must put safety first.

Only one thing remains to be said: despite my obvious relish for the task, I want to assure the reading public that I still did my homework for this reply.  As of this date,[7] the only court rulings in New York to address litigation or complaints about library access as impacted by COVID-19 are numerous claims about transmission concerns impeding access to a prison law library[8] (now, in that case, I can understand why someone would complain).  But I found nothing regarding action against public and association libraries due to COVID-induced closure, reduced operations, and impediments to general access.  Hopefully it stays that way.[9]

Thanks for a good question and for some time on the bright side.

 

 



[1] It gives me a very "we the people" thrill that no amount of election-year jitters can override.

[2] I am sure that by now (August 25, 2020), MANY of you have heard MANY complaints...complaints about masks violating the ADA, complaints about the Library being too open or too closed, complaints that your signage is in the wrong font, or perhaps complaints about the smell of your hand sanitizer being too fruity.  These days, people just need to complain about something—it helps us feel more in-control.  I know I directed a very strongly worded message to my local government regarding document retention policies after the repeal of Civil Rights Law 50-a; for about 10 minutes, I felt really in charge of my own destiny.

[3] This is why a lease, or at least an agreement with a municipality who may own the library building, is a good idea.  At the bare minimum, such a document should address security/confidentiality, insurance for loss, the protocol for an on-site slip-and-fall, and the process for planning capital improvements.

[4] For instance, a facility rental agreement.

[5] For instance, once your meeting room is again accessible to the public, you can't let a start-up business owner hold a pop-up retail stand there to turn a profit, since that would risk compliance with several laws and tax regulations.

[6] Comics are very cool, but obviously your library doesn't want to play favorites.  And just because the Garden Club shows up with trowels is no reason to give them special treatment.

[7] August 25, 2020.

[8] There are already over a dozen of these.  A typical case can be seen in Vogel v Ginty, 2020 US Dist LEXIS 148513 [SDNY Aug. 14, 2020, No. 20-CV-6349 (LLS)].

[9] It will be hard enough sorting out the impact on budgets and various regulatory requirements.

 

Tags: COVID-19, Emergency Response, Library Programming and Events, Meeting Room Policy, Policy, Reopening policies

Topic: What to do if an employee tests postive for COVID-19 - 8/21/2020
We got lucky: an employee, who was asymptomatic at work but tripped one of the screening factors r...
Posted: Friday, August 21, 2020 Permalink

MEMBER QUESTION

We got lucky: an employee, who was asymptomatic at work but tripped one of the screening factors requiring him to stay home, was tested and found NEGATIVE for COVID-19.

Our employee is coming back to work, but I have been wondering...what if the test came back POSITIVE?  If we have to quarantine all our employees, we'd be shut down completely!

WNYLRC ATTORNEY'S RESPONSE

First: that is good news about your employee.

Second: a gold star to your library for having a screening system that works, and for following the requirement to restrict an employee who trips a screening factor from on-site work while waiting for test results.

Third: Let's talk about your alternate scenario (the one where you don't get such good news).

As of August 17, 2020, any library[1] that is up and running should have a Safety Plan as required by both the guidance for "Office-based Work", and "Retail Business Activities" (we'll call this the "Guidance").

The Guidance includes the requirement to fill out a New York Forward Business Affirmation Form, which attests to having a Safety Plan.  It also answers the member’s question about what to do if an employee tests positive for COVID-19.

Here is what the Guidance (as of 8/18/2020) requires:

An individual who screens positive for COVID-19 symptoms must not be allowed to enter the office and must be sent home with instructions to contact their healthcare provider for assessment and testing.

Responsible Parties should remotely provide such individuals with information on healthcare and testing resources.

Responsible Parties must immediately notify the state and local health department about the case if test results are positive for COVID-19.

Responsible Parties should refer to DOH’s “Interim Guidance for Public and Private Employees Returning to Work Following COVID-19 Infection or Exposure”[2] regarding protocols and policies for employees seeking to return to work after a suspected or confirmed case of COVID-19 or after the employee had close or proximate contact with a person with COVID-19.

So, the answer to the member's question: "What if the test came back positive?" is: "[I]immediately notify the state and local health department."

After that, the direction from the local health department may vary, but the Guidance requires:

If an employee has had close or proximate contact[3] with a person with COVID-19 for a prolonged period of time AND is experiencing COVID-19 related symptoms, the employee may return to work upon completing at least 10 days of isolation from the onset of symptoms.

...[and]...

If an employee has had close or proximate contact with a person with COVID-19 for a prolonged period of time AND is not experiencing COVID-19 related symptoms, the employee may return to work upon completing 14 days of self-quarantine.

And after that, things can really vary.  But in a scenario where every employee of the library came within six feet[4] of their (now confirmed as) infected co-worker, the library really could be looking at up to two weeks of employees in self-quarantine...along with any other response required by the local health department.

This is not a feel-good scenario.  But the good news is, the same Guidance that requires a library[5] to require employees to isolate also reduces the likelihood of such a remedy being needed.  This is because the Guidance also requires a host of preventative practices to limit exposure in the first place, including:

  • Staggering shifts to limit "close or proximate contact," between people;
  • Creating and posting clear signage;
  • Consistently enforcing masking, cleaning, and social distancing practices

If a library maps these things out for employees, and consistently enforces them, there will be less need for the "isolation/quarantine" sections.  While right now, there is no magic bullet, the simple elements of your library's Safety Plan can reduce the need for quarantine.

And that's it; thanks for a great question.  I hope this answer never has to come in handy for your library.  But just in case it does: here’s a quick checklist for the steps listed in this response [6]:

"CHECKLIST FOR RESPONDING TO NOTICE OF COVID-19 EXPOSURE AT THE LIBRARY; TO BE USED IN CONJUCTION WITH UPDATED SAFETY PLAN"

  • However the library was notified of the potential close/proximate contact, obtain a copy of the notice in writing (or send a confirmation e-mail to the source);
  • As required by the most recent New York Forward Guidance, notify the library's local public health Department (both in person and in writing), and factor in their response[7];
  • As required by the most recent New York Forward Guidance and the library's Safety Plan, determine who (if anyone) else must be restricted from the workplace, for how long; and if any further testing must be required;
  • Ensure the library is taking steps to protect the privacy of any employees disclosing screening factors (like a high temperature);
  • Ensure the library is taking steps to assess if any employee must be given paid time off or will need assistance to claim short-term disability or Paid Family Leave Act benefits;
  • Generate a short statement reviewing the above check listed factors, summarizing what your library has done for each step, and make sure you retain copies of all documentation showing you completed these steps;
  • Once these actions are taken and these determinations are made, notify your Board of Trustees of the critical aspects of the situation, but take care to respect the privacy of employees.


Here is a template notice to the board, designed to reflect taking the necessary steps, while also protecting employee privacy: 

On ____________, the library received notification of an [individual/employee] testing positive for COVID-19. As required by current guidance from the State, we notified the Health Department immediately.  At this time, the direction from the local health department is _____________________________________[this may be extensive]. 

We have determined that # employees must self-isolate until they DATE. 

We have determined that # employees must self-quarantine until DATE. 

We have confirmed with the health department that as a result of this notice and response, and consultation with the [Executive Committee of the board/full board/board officer/other] we will [close/reduce operations/operate under the status quo], unless the board determines otherwise. 

Our Safety Plan has been followed and we have retained the documentation showing such compliance.

 



[1] Any library that does not consider itself "operated by a local government or political subdivision", that is, since the New York Forward guidance specifically states that the various Executive Orders' business restrictions do not apply to such libraries.

[3] According to the Guidance, "close contact" is "to be someone who was within 6 feet of an infected person for at least 10 minutes starting from 48 hours before illness onset until the time the person was isolated."

[4] This should NOT be happening!

[5] Remember, local governments and political subdivisions may decide not to follow these precise requirements.  That said, if it determines it is operated by a local government or political subdivision, a library must then follow the safety plan set by that local government or political subdivision.

[6] Some of this isn't required by applicable laws or Guidance, but is in there to position a library to easily show it followed applicable laws and Guidance.

[7] While keeping confidentiality at top of mind, libraries need to think carefully about a voluntary system allowing users to log visits for purposes of contact tracing.  A voluntary list of names, dates and times, maintained with all due care for privacy, can position a library to participate in a local health department's contact tracing initiative.  This can in turn help a community reduce its rate of transmission.

Tags: COVID-19, Emergency Response, Policy, Quarantine Leave, Safety

Topic: Asking COVID-19 symptomatic patrons to leave - 8/18/2020
In regards to COVID-19 when libraries do reopen, (and allow people in) is it advisable to ask cust...
Posted: Tuesday, August 18, 2020 Permalink

MEMBER QUESTION

In regards to COVID-19 when libraries do reopen, (and allow people in) is it advisable to ask customers to leave the public building if they are exhibiting any visible COVID symptoms? If so, are there benchmarks for how extreme symptoms should be or how policies should be worded? There are of course patron behavior policies in place allowing for the removal of anything disruptive, which can include noise or inappropriate behavior. There are some members of our leadership team who believe our safety reopening plan should include provision specifically mentioning symptoms of COVID-19 and the staff's/ library's right to remove them if symptoms are exhibited. There are other concerns that library staff are not medical professionals and we are not able to determine if a few sneezes and coughs are common colds, allergies or COVID. Attached is our library's current reopening plan.

WNYLRC ATTORNEY'S RESPONSE

As the member writes, it is very difficult to determine if some physical factors—coughing, a flush, seeming malaise—are in fact symptoms of COVID-19.  Confronting a patron with suspected symptoms can also lead to concerns impacting community relations, privacy, and the ADA.

A good Safety Plan addresses this concern, without requiring patrons[1] to be removed mid-visit from the library.

To position libraries to address the impact of patrons with suspected symptoms, New York's "Interim Guidance for Essential and Phase II Retail" (issued July 1, 2020)[2] states:

CDC guidelines on “Cleaning and Disinfecting Your Facility” if someone is suspected or confirmed to have COVID-19 are as follows:

  • Close off areas used by the person suspected or confirmed to have COVID-19 (Responsible Parties do not necessarily need to close operations, if they can close off the affected areas).
  • Open outside doors and windows to increase air circulation in the area.
  • Wait 24 hours before you clean or disinfect.
  • If 24 hours is not feasible, wait as long as possible.
  • Clean and disinfect all areas used by the person who is suspected or confirmed to have COVID19, such as offices, bathrooms, common areas, and shared equipment.
  • Once the area has been appropriately disinfected, it can be opened for use.
  • Employees without close or proximate contact with the person who is suspected or confirmed to have COVID-19 can return to the work area immediately after disinfection.  Refer to DOH’s “Interim Guidance for Public and Private Employees Returning to Work Following COVID-19 Infection or Exposure[3] for information on “close or proximate” contacts.  [4]
  • If more than seven days have passed since the person who is suspected or confirmed to have COVID-19 visited or used the retail location, additional cleaning and disinfection is not necessary, but routine cleaning and disinfection should continue.

[emphasis on "suspected" has been added]

In other words: your Safety Plan, as informed by the most recent guidelines, should leave nothing to chance.  By using this procedure, library staff are never put in the position of having to guess, ask, or consider if a patron's coughing, sneezing, or other behaviors are COVID-19...rather, the moment the possibility is "suspected," the Plan kicks into action.

Of course, if a patron is properly masked, some of the risk of exposure is limited, even if they are infected (this is why we wear masks and identify areas with six feet of clearance in the first place).  And if a patron removes their mask mid-visit, refuses to keep appropriate distance, or refuses to spray down equipment after using it,[5] THAT person can be asked to leave, simply as a matter of policy—whether they are exhibiting symptoms, or not.[6]

So to answer the question: no, it is not advisable to ask patrons to leave the public building if they are exhibiting any visible COVID symptoms, for exactly the reasons the member provides.[7]  Rather, it is required that your Safety Plan keep people distant from each other, and that the library be ready to address any real or suspected exposure as quickly and effectively as possible. 

That said, having signage that reads "Safety first!  Patrons who are concerned about transmission of germs can arrange curbside service by [INSERT]" is a great way to remind people that if they are having an "off" day, there are many ways to access the services of your library.

I wish you a strong and steady re-opening.



[1] This answer does not apply to employees and visitors like contractors, who must be screened.

[4] I note that the DOH's "Interim Guidelines" do not include guidance to staff with suspected (as opposed to confirmed) exposure.  If an employee feels they were exposed to a suspected case of COVID-19, however, that will impact their answers on their next daily screening, which will trip consideration of whether they can report to work.

[5] Or whatever other safety measures a library has identified.  It is inspiring to read the variety of tactics out there, as listed at https://www.nyla.org/covid-19-library-reopening-plan-database/?menukey=nyla.

[6] Another member raised this consideration in this "Ask the Lawyer" from earlier in July 2020: https://www.wnylrc.org/ask-the-lawyer/raqs/153

[7] Of course, if a patron is having a medical event and you have an immediate concern for their well-being, call 911.

Tags: ADA, COVID-19, Emergency Response, Policy, Privacy, Reopening policies, Work From Home

Topic: Working from home during reopening - 8/18/2020
I work at a public library that is gradually reopening to the public. We employ quite a few librar...
Posted: Tuesday, August 18, 2020 Permalink

MEMBER QUESTION

I work at a public library that is gradually reopening to the public. We employ quite a few librarians who trend older and have underlying health conditions. Many of these staff have been working remotely for the past few months, but not necessarily on tasks essential to their positions. As we begin to recall employees to the physical worksite, some are requesting to continue working from home, and/or for indefinite relief from working directly with the public, because of their vulnerability to Covid-19 complications.

While we are working to accommodate our employees, we also realize that working directly with the public is an essential part of being a *public librarian*. So how can we effectively accommodate public librarians who are asking to *not* work with the public?

We have done this during our work-from-home phase, when our Library was required to remain closed. But I don't believe that we can sustain this over the longer term. At some point, we may have to hire people to fill the in-person needs of the Library, and won't have enough "at-home" work for existing staff to do.

Thank you for your guidance.

WNYLRC ATTORNEY'S RESPONSE

This is a heart-breaking question, and I am sure it has been a hard process to get to this phase in your operations and planning.

In the state of New York, it can be a violation of both state and federal law to deny a person an employment opportunity on the basis of age or disability.  However, when a person cannot perform their essential duties due to a health concern, and no reasonable accommodation can help them do so, that person may have to leave the position.

Which brings us to the member's question: "So how can we effectively accommodate public librarians who are asking to *not* work with the public?"
There is a lot of wiggle room in this type of question, because the answer will change from library to library, but that also makes it hard to answer generically. 

Since I can't give an answer, I can do the next best thing: an array of questions to help members assess their own library's response to this type of disability accommodation[1] request:

Consideration

Why this is important

Your answer:

 

Are the impacted employees Civil Service?

 

 

Any assessment of job duties, changes, and consideration of alternation of essential duties should be done with your Civil Service agency's input.

 

 

Does your library have to abide by the Americans with Disabilities Act, and if so, what are its precise obligations?

 

 

Precise ADA obligations change based on library type, size, location, and funding. 

 

This is a factor that should already be known and addressed in the library's policies or employee manual, or with input from your Civil Service agency.

 

 

Does your library have to abide by the New York State Human Rights Law?

 

 

Precise NYHRL obligations change based on library type, size, location, and funding.

 

This is a factor that should be known and addressed in the library's policies or employee manual or with input from your Civil Service agency.

 

 

Are the impacted employees governed by a collective bargaining agreement ("union contract")?

 

 

The union contract may control how employees’ duties may be assigned/re-assigned and offer additional protections and considerations.

 

 

Do you have a copy of each job description involved, and are those job descriptions current and accurate?

 

 

Before assessing if an employee can be granted a reasonable accommodation, or must leave their job due to disability, make sure their job duties and reporting structure are accurately set forth in their job description.

 

 

Looking at the job description, what are the elements that the employee is stating that they cannot perform due to medical factors?

 

 

This should be confirmed in writing between the library and the employee (and as needed, review with Civil Service).

 

 

What accommodations can allow the employee to still perform their essential function?  Can those accommodations be implemented by the library?

 

 

Isolating these factors, and confirming them with Civil Service when they impact job duties, will position the library to assess if accommodations (like not coming into close proximity with the public) is possible, and if so, if they are reasonable.

 

 

After considering its legal obligations, operational needs, and the specific request, can the library reasonably accommodate the request?

 

 

The answer may be "yes," or "no."  In the member's scenario, if an essential duty requires activity that, even with all applicable safety provisions, cannot be done by the employee due to a medical concern, the key question is: can the library accomplish the essential element?  As the member writes, that might be hard.

 

This is the part to review with your library's attorney, prior to acting on any determinations.

 

Look at the big picture, and plan accordingly. 

 

When the assessment/s is/are done, look at the overall impact.  How will this impact the Plan of Service?  Or employee morale?

Develop a plan to get any messaging right, while respecting employee privacy.

 

This is the part where you review the big picture with the board personnel committee, civil service agency, and/or attorney.  The goal is for directors to be empowered to make decisions about workforce matters, with appropriate support for the plans.

 

Effect decision-making.

 

Plan out any accommodations to ensure they are supported by your COVID-19 Safety Plan, and create a schedule for implementing any necessary workforce changes.  Make sure the plan makes room for communicating changes to employees, in a way that will build team cohesion.[2]

 

Generate documentation to show compliance with the plans.

I know no chart can take the place of a solid plan that considers the needs and resources of your library, the well-being and privacy of your employees, but hopefully this chart can help you develop one. Together with the more general guidance in an earlier answer, these are the fundamental steps to consider.

Thank you for being willing to pose a difficult question.  I wish your library well at this difficult time.



[1] The employee can call it whatever they want, but a request to change job duties on the basis of a medical condition (including the condition of having heightened vulnerability to infection) will generally be considered an accommodation request under the ADA or the New York State Human Rights Law.  Therefore, any library entertaining such a request should evaluate is as they would a disability accommodations request, which as stated in this answer, will vary from library to library, based on their policy (which should be based on the precise way the laws apply to that specific institution).

[2] Yes: It can be very tough to acknowledge someone is leaving, and then try to focus on "team cohesion."  And it can be doubly tough when a medical concern, and inability to offer an accommodation, leads someone to leave on disability (which of course is confidential, and cannot be shared by the library).  But at the same time, the right message can help with employee morale.  This is why strategizing with an HR professional or Personnel Committee Chair, to organize some talking points on those things, can be so important.

Tags: COVID-19, Emergency Response, Employee Rights, Public Libraries, Reopening policies

Topic: Board of Trustees Approval for Library Reopening Plans - 8/3/2020
Should a board of trustees vote on their institution’s COVID-19 Safety Plan?  Or should...
Posted: Monday, August 3, 2020 Permalink

MEMBER QUESTION

Should a board of trustees vote on their institution’s COVID-19 Safety Plan?  Or should the adoption of the Plan be left entirely to the institution’s director or executive director?

WNYLRC ATTORNEY'S RESPONSE

Who is “in charge” of a library’s safety plan--the trustees, or the director?

It’s tricky, but if you bear with me, you will get an answer.

When it comes to who is “in charge” at an organization, boards must respect the authority of those they employ to lead (the director).  At the same time, the organization, including the director, must be guided by the work of those fiduciaries ultimately responsible for it (the trustees).

This dynamic can play out in many ways, but in a healthy board-director dynamic, the board lives up to its responsibility as a fiduciary by honoring the authority of the director. So to assess a question like this, I start with the board’s responsibility…which is also the responsibility of the library.

What is the responsibility of a library open during COVID-19?  Here’s the lay of the land, straight from the “NY Forward Lookup Tool”:

Image is a screenshot from the NY Forward tool, with arrows pointing out the text for applicable guidelines. This text is linked below the image.

The “applicable guidelines”[1] I have so carefully underlined (as found July 6, 2020, at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/RetailMasterGuidance.pdf)  state, in relevant part:

The Responsible Parties – as defined below – are accountable for adhering to all local, state and federal requirements relative to retail business activities. …

The proprietor/operator… or another party as may be designated by the proprietor/operator (in either case, "the Responsible Parties"), shall be responsible for meeting these standards.”

As part of the “applicable guidelines”, the “Responsible Parties” must certify having read and understood the obligation of their institution to “operate in accordance with such guidance,” as shown here[2]:

Image is a screenshot with an arrow pointing to the italicized text mentioning the Responsible Parties. This text can be read on the NY Forward Applicable Guidelines page.

None of this expressly requires that the person signing the certification, or the developer of a Safety Plan, is any particular person or entity.  Rather, the “owner or agent” of the library (who could be an officer of the board with signing authority from the bylaws, the director, another employee, or even an attorney operating on instructions from the library/client) signs the certification, and at some point, they adopt a Safety Plan.  That’s it.

But while there is no prescribed process for the Safety Plan, a look at some of the things the Plan must address is instructive.  For instance, the above-linked guidance states:

Signage should be used to remind employees and customers to:

  • Cover their nose and mouth with a face covering when six feet of social distance cannot be maintained.
  • Properly store and, when necessary, discard PPE.
  • Adhere to physical distancing instructions.
  • Report symptoms of or exposure to COVID-19, and how they should do so.
  • Follow hand hygiene and cleaning and disinfection guidelines.
  • Follow appropriate respiratory hygiene and cough etiquette.

As I have written about elsewhere[3], the requirements listed above, among other things, become temporary modifications to a library’s Code of Conduct.  In order to enforce social distancing and use of PPE in the library as required by the State, a library must ultimately tie a patron’s failure to do so to its Code and process for restricting access to patrons.[4]  For that reason alone (and there are many, many others, including a Plan’s impact on conditions for employees, procurement practices, security procedures, budget, etc.), the board should be the entity that adopts the Plan.

This is not to say that a director with adequate experience to draft a library’s Safety Plan cannot be the primary author of the Plan.  In fact, the director (and other employees with high familiarity with certain operations) is likely the person best situated to envision adjusted floorplans, shift schedules, workflows, signage posting, employee temperature monitoring, and employee training methods (to name just a few), all of which must be addressed in the Safety Plan. 

But because of the many high-stakes areas a Safety Plan impacts, a library’s board should be the entity accountable for adopting it and ensuring it is updated at regular intervals.  On the flip side, after the Plan is adopted, the director will be the authority responsible for seeing that the Plan is followed.

The board has this accountability for passing the Plan because a COVID-19 Safety Plan is not just a tool for safety, but also a mechanism of legal compliance and risk management.  When you stop and think about it, most policies or plans that relate to safety, legal compliance, and risk management—things like workers’ compensation insurance policies, sexual harassment and civil rights policies, and fiscal controls policies—are all things that a board is ultimately accountable for.  While the director may have the authority to ensure compliance with them, they are adopted by a board. And that is as it should be.

Of course, it can be a challenge for a small board to meet as often as needed to keep a COVID-19 Safety Plan evolving in light of new research, evolving library operations, and on-the-ground improvements.[5]  For such situations, it is good to consider an approach like the one set out in the below template resolution:

BE IT RESOLVED that the board hereby adopts the Safety Plan considered at this meeting of DATE; and

BE IT FURTHER RESOLVED that the Plan be posted in the Library, as required by the Plan, within 24 hours of the passage of this Resolution; and

BE IT FURTHER RESOLVED that to ensure the Safety Plan is updated in a manner that is conducive to optimal operations of the Library, the Director, [in consultation with INSERT[6]] is authorized to update the Safety Plan as needed, consistent with CDC and OSHA guidelines, and shall present the current updated version then in effect at each subsequent meeting of the board, to be reviewed and ratified by same.

 

So, what is the answer to the member’s questions? 

There is no “right” answer to this, but lots of factors point to the board serving as a library’s COVID-19 Safety Plan’s ultimate authority.  That said, in passing such a plan, a board should draw from the experience, and support the executive authority, of the library’s director. 

Like all healthy board-director relationships, this approach requires listening, learning, a good sense of roles and boundaries, and mutual respect.  A tall order in frantic times, but one that good planning and careful consideration[7] can almost always bring about.

Thank you for an important question.

 



[1] You will no doubt be shocked to learn that my law school did not have a “graphic design” elective for marking up NY State pandemic policy documents.

[2] I imagine many directors and board members have gone through this triad of assurance many times, and are sick of it.

[4] While Executive Order 206.39 granted any business the right to refuse a person access if they are not wearing a mask (if they can medically tolerate one), I am not comfortable with any lingering consequences for refusal to wear a mask or otherwise abide by the safety plan unless they are tied to the due process in a Code of Conduct.

[5] Larger libraries will have already had a business continuity, disaster recovery, and perhaps even an all-hazards response plan in place.  The approach outlined in this answer is drafted with smaller libraries, who typically don’t have such deep resources, in mind.

[6] The option in brackets here is to allow revisions in consultation with some back-up for the director: a committee of the board, or the chair of the board, or an independent consultant as authorized by the board, or the local Health Department. 

[7] And frequent re-reads of the “Handbook for Library Trustees of New York State,” found at http://www.nysl.nysed.gov/libdev/trustees/handbook/.

Tags: COVID-19, Emergency Response, Reopening policies, Board of Trustees

Topic: Trustees and First Amendment - 7/27/2020
Our municipal library recently revised its by-laws, and the revisions were approved by four of our...
Posted: Tuesday, July 28, 2020 Permalink

MEMBER QUESTION

Our municipal library recently revised its by-laws, and the revisions were approved by four of our five elected trustees. The fifth trustee abstained, and a month later sent the other board members an email saying he thought some of the language was in violation of First Amendment rights. He said three lawyers he talked with concurred.

The language in question were sentences that were copied verbatim from United For Libraries of the American Library Association's Code of Ethics. The same language was found in the New York State Library Trustees Manual, published by the New York Board of Regents.

Specifically, this is the language in the revised by-laws the trustee objected to:

"Trustees must distinguish clearly in their actions and statements between their personal philosophies and attitudes of those of the library, acknowledging and supporting the formal position of the Board even if they disagree."

"When any trustee acts in a manner that is not in the best interests of the library or in a cooperative nature of the Board, the Board Chair shall discuss the issue with the trustee in a direct and constructive manner. Specifically, if a trustee is negligent in attending meetings to an extent that affects the operation of the Board, if a trustee is actively working against the interest of the library or Board decisions, if a trustee acts or speaks on behalf of the Board on any matter without prior approval of the Board, or if a trustee or his/her family benefits personally from any library matters, that trustee may be asked to resign from the Board by majority vote of the trustees. The trustee will be asked to resign from the Board by letter from the Board Chair, and the trustee will be asked to send a letter of resignation to the Board Chair."

The trustee stated, "A public library, with publicly elected trustees cannot in any manner restrict the opinions or comments of any board member, whether in executive session or public meeting, nor can they be compelled to support the decisions of the majority. Such action is a direct infringement on the First Amendment to the Constitution."

QUESTION: Do the passages in quotes[1] from United for Libraries of the library's new by-laws infringe on First Amendment rights?



[1] NOTE:  The quoted language in the question does not exactly track the language in the 2018 NY Trustee Handbook, nor the United for Libraries Public Library Trustee Ethics Statement.  This reply addresses the language as quoted in the question and does not address the Handbook nor the United for Libraries Public Library Trustee Ethics Statement.

WNYLRC ATTORNEY'S RESPONSE

OPENING NOTE: Before I answer this question, I must stress: while some of it is identical, the quoted language in the question does not exactly track the language in the “2018 Handbook for Library Trustees in New York State,” nor the “United for Libraries Public Library Trustee Ethics Statement.”  This reply addresses the language as quoted in the question and does not address the precise language of the Handbook or the Ethics Statement.

Here are the words of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

I have been thinking a lot about these words, lately.  Business restrictions, social distancing, mask-wearing, protesting…2020 has evoked them, again and again.[1]

For this question, these strong, simple words are contrasted against the laws, regulations, and documents setting the terms of service of a public library board member. 

Let’s review those terms of service:

  • In the State of New York, public and private libraries are chartered by the NY State Education Department, as authorized by Education Law Section 255.
  • Whatever “type”[2] a Regents-chartered library is, it is always considered an “education corporation,”[3] to be governed, in part, by the Not-for-Profit Corporation Law.[4]
  • Although they are “education corporations,” public libraries bear some hallmarks of government entities: trustees must take oaths of office, most employees are part of the Civil Service, and there are significant, government-aligned requirements for procurement, audit, and accounting.
  • And of course, public libraries are subject to the Freedom of Information Law, the Open Meetings Law, the laws of their host municipalities, and the requirements of their own charters, bylaws, and policies.

This elaborate grid of law, regulation, and governance creates not only a public library--it creates the conditions for service by the public library trustee. 

Overarching all of this is the First Amendment, with its shifting assurances of unfettered freedom of speech and association. These shifting assurances include (but are not limited to): the right to say something (“free speech”), the right to not say something (no “compelled speech”), the freedom to attend meetings and gatherings (“association”), and the right to protest and advocate for your point of view (to “peaceably petition the government for redress of grievances”).

I say “shifting assurances,” because as is widely known, the tests for violations of the First Amendment depend on the context of the speech.[5]  Depending on the government interest to be advanced, or the nature of the speech impacted, the Supreme Court has created various tests to assess the Constitutionality of governmental actions impacting expression.[6]  One of those “contexts” is the voluntary acceptance of public library trustee service, which means agreeing to serve in alignment with certain laws. 

Here are just a few examples of how, even though every person on a public library board has First Amendment rights, speech and association of a trustee may be “limited” by law:

  • Trustees must take an Oath of Office,[7] which is arguably “compelled speech” required by the Education Law and the Public Officers Law;
  • Trustees must agree to follow the library’s “Conflict of Interest” policy, which is arguably “compelled speech” required by both the Not-for-Profit Corporation Law and the mandated Oath of Office;
  • Trustees must meet at least quarterly and if individual members do not attend, they may be removed, which is arguably “compelled association” required by the Education Law;
  • Trustees must not divulge communications designated by statute as confidential (whether or not they were discussed at executive session)[8] which is arguably “restricted speech” but is a condition confirmed in a number of judicial and Education Commissioner decisions;
  • Board members must abide by a library board’s code of ethics or risk being removed for misconduct.

Each of these examples is an instance where library trustees must curb or engage in behavior due to their special status as a public library trustee.  Each is a well-established condition, limiting or prescribing actions and expression, voluntarily undertaken as part of a valuable public service.

So, it is clear that library trustees must accept some conditions impacting their First Amendment rights, as a condition of board service.  But what about the language cited by the member’s question?

Most of the language in the question, as presented, does not lend itself to any concerns about the First Amendment; in fact, most of it does just the opposite.  By requiring a board member who is expressing a personal opinion to clarify that they do not speak for the full board or the institution, the language allows a trustee to express their personal position without jeopardizing their duty as a fiduciary who must act solely in the best interests of the institution.  Further, citing “the best interests of the library” and “the cooperative nature of the Board” emphasizes how a board must collaborate in good faith to achieve board decisions based solely in the trustees’ role as fiduciaries, which is consistent with both the Not-for-Profit Corporation law, and the cases construing duties of boards. 

In short, most of the language allows a trustee to perform their duties while exercising their First Amendment rights.

All that said, I have First Amendment concerns about the following phrases:

“…supporting the formal position of the Board even if they disagree.”

“…if a trustee is actively working against the interest of the library or Board decisions …”

 

What are my concerns with these phrases?

I have concerns because the meaning of these phrases, while evocative of a trustee’s “duty of loyalty”[9] to the library they serve, is ambiguous.   Ambiguity—by which I mean uncertainty about what exactly is being required--does not work well when free speech is implicated; and the uncertainty caused by a term being vague or overbroad creates risk. 

Here is how that risk plays out:

The following are some examples [10] of behavior that could be characterized as a trustee “actively working against the interest of the library or Board decisions…” that would violate the trustee’s duty of loyalty, and thus if punished with removal or censure, would NOT create First Amendment concerns:

  • A trustee knows it is in the best interest of the library to fix the roof in 2020, but publicly advocates waiting until a roofer they personally like (a neighbor or a drinking buddy) is free to perform the work in 2021;
  • A trustee knows that Candidate #1 has the best qualifications for the job, and therefore hiring Candidate #1 is in the best interest of the library, but thinks Candidate #2 will make their friends happier, so publicly endorses and votes for #2;
  • After appropriate due diligence and discussion with legal counsel during executive session, the board votes to buy the lot next door and to roll out news of the decision in a particular way.  A trustee, by virtue of information learned during the process, knows that the decision complies with all applicable laws and regulations, but still organizes a petition asserting the purchase is “illegal.”

Any of these, if proved, could be grounds for removing a trustee for “misconduct” and removal with no First Amendment defense to fight the removal. 

HOWEVER, as I said, the ambiguity of the quoted phrases, and some of their possible implications, concerns me.  To flip my examples around, here are some examples of behavior that could be characterized as a “trustee is actively working against the interest of the library or Board decisions…” that would NOT violate the duty of loyalty, and if punished with removal or censure, COULD create concerns under the First Amendment:

  • A trustee knows it is in the best interest of the library to fix the roof in 2020, but the only roofer to bid on the contract as authorized by the board has an established track record of defective work which is not being considered in the procurement process. In the days before the scheduled vote on the contract, the trustee publicly—and clearly only speaking for themselves—advocates a new procurement process and project timing that will attract roofers with a better record of performance;
  • A trustee sees that the new director, while excellent in many ways, does not have experience organizing a move to a new building, so despite a previous decision by the board to not hire a consultant to assist with the move, re-introduces a resolution to hire a consultant, and publicly (but respectfully) shares their reasons for the procurement;
  • A trustee, by virtue of information learned at executive session, has a genuine concern that a planned land purchase will not comply with all applicable laws and regulations, and reaches out to a private attorney to confidentially share their concerns.  Once those concerns are confirmed, the trustee shares the concerns in another executive session.  The board ignores the concerns, so the trustee—taking care to state that they are speaking personally and not for the board--THEN (without divulging attorney-client privileged information from the sessions) writes to the state Comptroller and the Attorney General for guidance, and writes a letter to the town paper stating simply that they hope to have time to gather further information.

If this seems complicated: it is.[11]  This is why there is a 132-page Handbook for library trustees, why there is currently a state-wide discussion about mandated training for library trustees, and why libraries have lawyers. 

Serving as a public library trustee is truly a role like no other.  To support the people in that role, if I were to word-smith the phrasing I have expressed concerns with, it would read (shown here with tracked changes):

"Trustees must distinguish clearly in their actions and statements between their personal philosophies and attitudes of those of the library, acknowledging and supporting as legitimate the formal actions position of the Board even if they disagree."

"When any trustee acts in a manner that is not in the best interests of the library or is inconsistent with thein a cooperative nature of the Board, the Board Chair shall discuss the issue with the trustee in a direct and constructive manner. Specifically, if a trustee is negligent in attending meetings to an extent that affects the operation of the Board, if a trustee is  engaging in misconduct or neglect of dutyactively working against the interest of the library or Board decisions, if a trustee acts or speaks on behalf of the Board on any matter without prior approval of the Board, or if a trustee or his/her family benefits personally from any library matters, that trustee may be asked to resign from the Board by majority vote of the trustees. The trustee will be asked to resign from the Board by letter from the Board Chair, and the trustee will be asked to send a letter of resignation to the Board Chair."


I suggest adding the words “misconduct” and “neglect of duty” because they come straight from Education Law 226(8), and as such, they are less prone to mis-interpretation.  On the flip side, I suggest removing the phrase, “actively working against,” because that phrase has no basis in law, regulation, or case law;[12] therefore, it risks mis-interpretation.  Since First Amendment decisions often turn on a phrase’s precise meaning (through definition or usage), these are more reliable choices.

To put this plainly: I am concerned that the language, as presented by the member’s question, creates the possibility of a public library chair thinking it is appropriate to tell a public library trustee: “The majority of the board voted to fix the roof this year, it’s a done deal, and now you have to keep quiet about it, or be removed from the board.”  This might not only violate the First Amendment, but could result in a course of action where the trustees are not acting in the best interests of the library.  That is a result to avoid.

At the same time, boards MUST feel empowered to remove members who are disruptive, who refuse to engage in the processes of deliberation and voting, who are disrespectful if they don’t get their own way, who improperly disclose confidential information, who have inappropriate relations with patrons or staff, or who violate board policy...so language emphasizing trustees’ responsibilities should be retained, and should be revisited often. 

Clarity about trustee rights and obligations, board training, and procedures creating a high-functioning board are always in the best interests of a library.

Thank you for a great question.  I hope this answer is helpful. 

CLOSING NOTE: At this closing section of the answer, I would like to re-iterate what was established in the first footnote: Although similar, the quoted language in the question does not exactly track the language in the “2018 Handbook for Library Trustees in New York State” nor the “United for Libraries Public Library Trustee Ethics Statement”.  This reply addresses the language as quoted in the question and does not address the precise language in the Handbook nor the Ethics Statement.



[1] And the year is only half over.

[2] Indian, free association, special district, school district, municipal.

[3] This governance is established through a daisy chain of Education Law sections: 255, 260, 226, and 216-a.

[4] The Education Law carves out several areas where the NFP law does not apply, including provisions related to trustee removal.

[7] By taking the Oath, a public library trustee has made the sworn commitment to “support the constitution of the United States, and the constitution of the State of New York, and … faithfully discharge the duties of the office of” serving on the board. 

[8] This is a tricky one.  A good “Committee on Open Government” opinion discussing the nuances of this can be found at https://docs.dos.ny.gov/coog/otext/o4258.htm.  Another illustration of the shifting conditions of board service is the discussion in a 2017 NY Commissioner of Education’s decision to not overturn the removal of a school board member who admittedly shared confidential information from an executive session, found here: http://www.counsel.nysed.gov/Decisions/volume57/d17147.

[9] It is worth noting that the phrase “duty of loyalty” does not appear in the Not-for-Profit Corporation Law, but is a creature of case law.

[10] All of these examples were picked to not otherwise be covered by required policies such as Sexual Harassment, Conflict of Interest, Whistleblower, confidentiality of topics duly discussed during Executive Session.

[11] These distinctions may be counter-intuitive to some people used to the operations of not-for-profit boards, which come with a high expectation of service with confidentiality.  A key distinction between library board work and the work of other entities governed by the Not-for-Profit corporation law is that library board work, by law, takes place before the scrutiny of the public.  So, while the “duty of loyalty” held by a typical not-for-profit board member would include not divulging board discussions and board votes, for chartered libraries, this activity takes place with an expectation of disclosure.

[12] To make this assertion, I checked for the phrase “actively working against” in all laws and regulations of New York, and the decisions of the NYS Commissioner of education.  The phrase has no application in any of those contexts, and appears in only six judicial decisions in New York (state and federal), none of which deal with libraries or not-for-profit board service.

Tags: Public Libraries, Board of Trustees, COVID-19, Education Law Section 225, First Amendment, Public Officers Law

Topic: Requirements for public access to SUNY libraries - 7/27/2020
[Submitted from a SUNY Library] (1) What are the requirements for a SUNY library to provide acce...
Posted: Monday, July 27, 2020 Permalink

MEMBER QUESTION

[Submitted from a SUNY Library]

(1) What are the requirements for a SUNY library to provide access to the general non-campus community/public (those outside staff, faculty, students)?
(2) Are their specific requirements/repercussions academic libraries should be aware of in regards to public access or prohibiting public access?
(3) What are the Section 108 repercussions for not allowing public access, specifically related to the pandemic? Would libraries still be protected if they provide public 'access by appointment' only? Would "temporary" non-public access still allow for application of the 108 exceptions?
(4) Can a SUNY library deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety?

WNYLRC ATTORNEY'S RESPONSE

This is a deep array of questions, requiring a deep array of answers.

But let’s start with the basics.

There are 64 SUNY campuses, some with more than one library.

What’s cool about these libraries?  They aren’t just collections of books on a campus, but distinct entities within their institutions, governed by the body of laws that apply to all libraries in New York, as well as the law that is SUNY-library specific.

The “SUNY-library specific” law is Education Law 249-a, which states:

The state university trustees and the board of higher education of the city of New York are hereby authorized to establish such rules and regulations as may be necessary and appropriate to make provision for access and use by the residents of the state of the libraries and library facilities of the public institutions of higher education under their respective jurisdictions.

In other words: SUNY and CUNY have libraries, and the boards of SUNY and CUNY can set those libraries’ rules, including the rules governing access.

SUNY’s[1]  board has established “such rules” by, among other things, adopting a policy on “Public Access to SUNY Libraries[2]  which states:

It is the policy of the State University of New York (University) that the public is given access to University libraries insofar as possible. Since implementation of this policy has fiscal and administrative implications, campuses may extend the facilities of their libraries to the public whenever it can be done and in a manner that is both fiscally sound and consistent with their primary educational mission.

 

What does this mean for public access to those libraries?

State law gives SUNY broad authority “to establish such rules…for access and use by the residents of the state.” SUNY then uses that authority to develop a policy requiring “that the public is given access to University libraries insofar as possible.”  BUT, after asserting that broad goal, SUNY allows individual campuses to tailor that access based on the “fiscal” and “administrative” considerations of individual institutions.  So while access to the public is the stated goal, the conditions for access are really up to the individual libraries (and the academic leadership they report to).

I tooled around a few SUNY library web sites (I couldn’t resist the Charles B. Sears Law Library at SUNY Buffalo, my alma mater), and each have their own unique conditions for giving the public access.  Some make it easier to find that information than others.  I saw a range of conditions for access…anecdotal evidence that the libraries are using the latitude granted to them by SUNY policy.

And with that background established, I’ll answer the questions.

(1) What are the requirements for a SUNY library to provide access to the general non-campus community/public (those outside staff, faculty, students)?

While the law only goes so far as to “authorize” SUNY to provide for public access, SUNY-wide policy is that “the public is given access to University libraries insofar as possible… whenever it can be done and in a manner that is both fiscally sound and consistent with their primary educational mission.”

So my answer to the first question is: based on SUNY policy, public access to a SUNY library must be provided insofar as possible, provided the use by the public doesn’t interfere with the use of the students and faculty, and the burden of public use doesn’t throw off the budget.[3]

(2) Are there specific requirements/repercussions academic libraries should be aware of in regards to public access or prohibiting public access?

Absolutely, there are requirements and potential repercussions for access to libraries at state institutions.  I could write an entire book on them (and I bet someone has[4]), but here is my quick summary:

  • Requirement: develop budgets, staffing plans, and operational policies that ensure the public is given access to University libraries “insofar as possible.”
  • Requirement: in coordination with Campus Safety or Campus Police, develop a process to address the most serious public patron behavioral concerns. 
  • Requirement: develop a privacy policy regarding the rights students, employees, and public patrons have under CPLR 4509.
  • Repercussion: be ready to address civil rights concerns related to the library’s status as a public institution.

(3) What are the Section 108 repercussions for not allowing public access, specifically related to the pandemic? Would libraries still be protected if they provide public 'access by appointment' only? Would "temporary" non-public access still allow for application of the 108 exceptions?

For readers not familiar with it, “Section 108” is the portion of the Copyright Act, which gives special exemptions from infringement to libraries and archives that are open to the public.

Section 108 does not go into great lengths regarding what the requirement “open to the public” means, but some insight can be gained from how it handles access to special collections closed to the general public; such collections qualify for Section 108’s protection so long as they are open “to other persons doing research in [that] specialized field.”  So it is clear that “open to the public” is not intended to be a carte blanche free-for-all.

The current pandemic and SUNY’s efforts to combat it will certainly impact SUNY libraries’ ability to be “open to the public.”  However, I feel confident writing my conclusion that any institution that temporarily restricts all patron access will not be found to have not meet the requirements of section 108.  And I feel just as confident saying that scheduled visits by appointment—if that is what a SUNY library needs to do to ensure safety—would not cause a 108 concern, either.[5]

That said, I cannot feel the same confidence for any Safety Plan that completely and utterly removes all public access.  Public access, even if severely restricted, must still be a component in order to meet the requirements of 108.

(4) Can a SUNY library deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety?

Broadly and boldly speaking: yes.

BUT.

As discussed at the beginning of this answer, the law of the state of New York and the policies of SUNY give a great deal of latitude to libraries on a campus-by-campus basis.  Different campuses exercise this latitude in different ways.  This means that while the library in one SUNY location may be operating per a Safety Plan confirmed by a central coordinator, another library may be given a directive to develop their own. 

Or, as (former[6]) SUNY Chancellor Kristina M. Johnson put it:

We understand that…each of our campuses is a complex ecosystem with regular engagement with their respective surrounding communities.

Within those different plans will be different solutions for the safe operations of different sites.  Some of those plans will call for masks, because masks will be the only way the planned operations will be able to be conducted safely.  Other plans may only include modified operations that may be performed safely without masks.  And of course, any plan requiring a mask will include the proper ADA accommodations information for those who are not able to wear one.

While the country has watched as some people challenge the requirement to wear PPE on the basis of civil rights, a limited requirement to wear a certain type of protective gear for a narrowly tailored purpose with a general application is not likely to be found a violation of the First Amendment. But of course, when it comes to civil rights, the devil is often in the details.  If, for instance, only a certain type of facemask was required, and that facemask type did not work well with a certain body type, or the need to wear a hijab, it is possible that could trigger an ADA or First Amendment claim. The guidance being assembled by the Center for Disease Control and the Occupational Safety and Health Administration takes into account the diversity of bodies and identities that Safety Plans will need to serve. By using properly credentialed resources and thinking through Safety Plans from multiple perspectives, a SUNY library should be positioned to deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety.

Last note

In responding to these questions, I am mindful that general legal services are provided to SUNY institutions through the office of the NY State Attorney General, and many campuses have lawyers on staff. Therefore, to the greatest extent possible, any SUNY library, department, center, school, college or university finalizing a Safety Plan should take care that whenever possible, coordinated guidance from SUNY’s recognized legal advisers is incorporated. (Very often, this will have been done at the level where the institution is planning its emergency response.)  I am always gratified when a SUNY lawyer, or another lawyer, calls me to discuss my work for libraries, and I welcome those calls.[7]

As of this date (June 26, 2020) I have found no publicly accessible model safety plan or guidance from SUNY HQ with regard to the resumption of operations.  Rather, the SUNY page for COVID questions shows that the State University of New York is very much in an assessment and response mode, and the SUNY Library Consortium’s page shows that plans are still in development.[8] I am sure that will change as the situation evolves, and I encourage people to be attentive to that page, and their own administrations, for further specific guidance.   At the same time, since no one knows a library better than the librarians who works at it, I encourage pro-active assessment and formulation of access and safety plans by library leadership, informed by the people who work and study there.

This guidance was assembled directly from available materials, and while not legal advice, it is consistent with published SUNY materials and the law.  I hope it is helpful to SUNY libraries as you consider the continuation of your operations.

Thank you for a great array of thoughtful questions. I wish our SUNY libraries much health and strength for the days ahead.

    



[1] The rest of this answer will focus on SUNY, since that is the focus of the member’s questions.

[2] Found on June 8, 2020 at https://www.suny.edu/sunypp/documents.cfm?doc_id=330 and not to be confused with the “Open Access To State University Libraries” policy found that same day at https://www.suny.edu/sunypp/documents.cfm?doc_id=329.

[3] Having sat through budget meetings of all types as a student leader, journalist, academic administrator, and lawyer, I realize that the words “fiscal” and “mission” can be applied to many divergent ends.  Let’s not go there, this is about the law.

[4] I will ask my paralegal Jill to research this question and alert me if she finds one.  If she does, we’ll update this footnote.  Otherwise, you’ll know we didn’t find one.

[5] I am punting on the very practical consideration of the recent Supreme Court ruling regarding sovereign immunity, which arguably positions SUNY to not be very concerned about qualifying for protection under 108.  I am punting because, as the court put it, I am sure SUNY does not want to be seen as a “serial infringer.”  For more on that, see https://www.scotusblog.com/case-files/cases/allen-v-cooper/

[7] (716) 464-3386

[8] This is not a criticism. A good plan takes time. And no plan other than a good plan should be implemented.

Tags: Academic Libraries, COVID-19, Emergency Response, Reopening policies, Section 108, Public Access, SUNY

Topic: Employee Identity Theft - 7/27/2020
I was recently contacted by my employer stating that someone had applied for unemployment benefits...
Posted: Monday, July 27, 2020 Permalink

MEMBER QUESTION

I was recently contacted by my employer stating that someone had applied for unemployment benefits using my Social Security number name and Job title. My employer notified me by email to be aware of this but stated that they conducted a security audit and found that there was no breach on their end and that the matter was currently being investigated by the department of labor and FBI. What responsibilities does an employer have to the employee when this happens? What should the employee do?

WNYLRC ATTORNEY'S RESPONSE

For this answer, we are again joined by Jessica Keltz, associate attorney at the Law Office of Stephanie Adams, PLLC.

This question takes us back to the SHIELD Act. Last discussed by Ask The Lawyer at the end of 2019 (https://www.wnylrc.org/ask-the-lawyer/raqs/100). The SHIELD Act requires businesses (and other entities that conduct business, such as, yes, libraries) that collect personal data to institute compliance measures including assessing security risks, implementing new data security measures, and securely destroying private information when it is no longer needed for business purposes.

We will take the two questions separately.

First, what responsibilities does an employer have to the employee when this happens?

If your library is not part of a large institution such as a university or a hospital, its compliance responsibilities likely fall under the SHIELD Act requirements for “small businesses.”

The act’s definition of a “small business” is:

"Small business" shall mean any person or business with (i) fewer than fifty employees; (ii) less than three million dollars in gross annual revenue in each of the last three fiscal years; or (iii) less than five million dollars in year-end total assets, calculated in accordance with generally accepted accounting principles.

Compliance requirements for small businesses under the SHIELD Act are more generalized; they simply need to ensure that their data security safeguards are appropriate for their business’ size, complexity, scope of activities, and the sensitivity of the information the business handles.  Within those guidelines, libraries that fall under the “small business” requirements should have a data breach plan.

The event that the member described is certainly cause to be concerned that a data breach had occurred, and the library should have a plan to address it. What does addressing it look like? The most important elements are being able to evaluate whether a breach occurred (which it seems like the employer was able to do), and disclosing to the potential victim that a breach may have occurred (which the employer definitely did).

If the library had found that a data breach did occur, staff or a contract data security expert should re-evaluate the library’s security protocols to make sure to prevent the problem in the future; but in this case, as a breach did not occur, this may not be necessary.

In the case of a data breach or potential data breach (and this falls under “potential”), the employer is also required to disclose the concern to any resident of New York state whose private information was, or is reasonably believed to have been, accessed or acquired by a person without valid authorization. By notifying you this event occurred, the employer has complied with the requirement.

Meanwhile, what can an employee in this position do?

First: as soon as possible, the employee should consider involving their own attorney.  The risks posed by this situation are too critical.  For those who can’t afford an attorney, contact the local county bar association to learn about pro bono assistance in your region.

Second, assuming the employer has complied with their obligations under the SHIELD Act, since this involved a fraudulent claim for unemployment from the New York State Department of Labor (“NYSDOL”), the employee should work with the NYSDOL to learn all they can about the incident.

This starts with contacting NYSDOL’s fraud department at https://labor.ny.gov/agencyinfo/uifraud.shtm, to see what they can share about the abuse of your personal information.  Armed with whatever other information is gathered from NYSDOL, the employee (or their attorney) can then look at their own credit history and other uses of their identity for potential breaches (social media and e-mail accounts).

While this is going on, be extra-wary of any calls, emails, or other contact requesting any personal information.  Always require people to call back or write to you with any out-of-the-blue-seeming inquiry.  Make sure the people close to you know you are on heightened alert.  Consider changing all passwords (just make sure you keep a good record of the changes in a very secure place).

The Federal Trade Commission offers guidelines on when and how to place a “fraud alert” on your credit, to stop new accounts from being opened using your name and information.

https://www.consumer.ftc.gov/articles/0275-place-fraud-alert.  Any person who learns their information may have been illegally accessed should also request a free credit history from one of the three main credit bureaus, and review their credit report for any unexpected checks or accounts. Depending on what you find when you do so, consider freezing your credit and reporting the theft of your identity to the Federal Trade Commission.

And finally, if any employee has reason to believe their employer or a contract provider is at fault for a breach (even if the employer or contract provider denies it) it is even more critical that the employee consult their own attorney as soon as possible.  There are too many variables to give general guidance on this, but broadly speaking, the more you have at stake (employment-related information, direct deposit information, health and benefit-related information, and of course, a potential dispute with an employer) the more important it is to act quickly.

The scenario the member describes is nerve-wracking, and the member was right to reach out about it. Don’t go it alone!

Tags: COVID-19, Emergency Response, Security Breach, SHIELD Act, Employee Rights, Identity Theft

Topic: Digitizing legally owned choral music - 7/24/2020
Is it permissible to make digital copies of choral music that is legally owned by the institution ...
Posted: Friday, July 24, 2020 Permalink

MEMBER QUESTION

Is it permissible to make digital copies of choral music that is legally owned by the institution to students in choral and instrumental ensembles? Some students may be studying remotely and mailing physical copies may result in lost or non-returned copies.

WNYLRC ATTORNEY'S RESPONSE

There are four ways it can be permissible:

1.  Check the license[1] from the publisher and see if the purchase of the physical copies came with any digitization/duplication permission.  You'd be surprised how many rights you buy (or don't buy) when you make that hard copy purchase.  Publishers take a variety of approaches on this, and an individual publisher's permissions may change from work-to-work, so confirm (or rule out) this approach for each work.

2.  If the license does not allow making digital copies, contact the publisher, and see if it can be expanded.  Publishers are now getting many requests like this and may be ready with a simple (and affordable) solution.

3.  I am not a fan of them (they are as outdated and as risky as the Ford Pinto), but the "CONTU" guidelines speak to this issue.  I am including the relevant guidelines, as presented in Copyright Office Circular 21, under this answer.  If one of your precise needs fits one of the "permissible uses" listed in Circular 21, you are all set.

4.  Speaking of CONTU, the first "permissible use" listed in the guidelines may help you out here, with a slight twist on your scenario.  In the event that the physical copies listed in the question are mailed out and not returned as feared, the guidelines allow for emergency copying after the fact (of course, they also require that at some point, you purchase more physical copies, but at least you can get the copies to the students).

 

Those are my four solutions, based on conventional approaches and current case law.

I'll also throw out a "fifth option" based on a slightly different approach, which, depending on some precise facts, could work for faculty teaching choral classes:

 

The 110 Solution

Copyright Section 110 allows an academic choral group (if meeting as part of a class) to display "a work in an amount comparable to that which is typically displayed in the course of a live classroom session," during an online class/rehearsal.

How can that help with the member's scenario?

Let's say I am in a class that is working up an a capella performance of "36 Chambers,"[2] as arranged by the composers of the original work.[3]

If the class was still meeting physically, Copyright Section 110(a) would allow us to perform the song and to display the music on the in-class smart board.  In the online environment, the same performance and display could happen via the internet, as allowed by 110(b) (the "TEACH Act")—again, so long as only the amount "typically" displayed in class was shown. 

Whether in-person or online, the rehearsal would include review of the different parts for bass, tenor, alto and soprano,[4] with the relevant music displayed on the screen.  While an academic institution can't tell people to take screen shots of the music displayed for rehearsal purposes, students who want to snap screenshots of a class to take notes is a fact of modern-day academia.  If a student who was told to purchase a copy of their part uses this method to ensure they are practicing on an incremental basis, that's out of the school's control, and the student can make their own claim to fair use.

This type of solution should never be used as a deliberate alternative to the purchase of individual copies.  But so long as the display is incremental and truly a part of the in-class experience, it is a viable option.

I wish all music faculty approaching the Fall 2020 semester many good performances, whether virtual, or face-to-face.  These are tough days for people who love to sing, who enjoy the community of a choir, and who need to hone their vocal art in collaboration with others.  Hunting for music should not add to the burden, and with a few tricks and an awareness of the limits of the law, it doesn't have to.

------------------------

Guidelines for Educational Uses of Music

The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223.

The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future, and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines.

Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

Reproduction of Copyrighted Works

Permissible Uses

1 Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.

2 For academic purposes other than performance, single or multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section¹, movement or aria, but in no case more than 10 percent of the whole work. The number of copies shall not exceed one copy per pupil.

3 Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist.

4 A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.

5 A single copy of a sound recording (such as a tape, disc, or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)

Prohibitions

1 Copying to create or replace or substitute for anthologies, compilations or collective works.

2 Copying of or from works intended to be “consumable” in the course of study or of teaching such as workbooks, exercises, standardized tests and answer sheets and like material.

3 Copying for the purpose of performance, except as in A(1) above.

4 Copying for the purpose of substituting for the purchase of music, except as in A(1) and A(2) above.

5 Copying without inclusion of the copyright notice which appears on the printed copy. (iv)

Discussion of Guidelines

The Committee appreciates and commends the efforts and the cooperative and reasonable spirit of the parties who achieved the agreed guidelines on books and periodicals and on music. Representatives of the American Association of University Professors and of the Association of American Law Schools have written to the Committee strongly criticizing the guidelines, particularly with respect to multiple copying, as being too restrictive with respect to classroom situations at the university and graduate level. However, the Committee notes that the Ad Hoc group did include representatives of higher education, that the stated “purpose of the … guidelines is to state the minimum and not the maximum standards of educational fair use” and that the agreement acknowledges “there may be instances in which copying which does not fall within the guidelines … may nonetheless be permitted under the criteria of fair use.” The Committee believes the guidelines are a reasonable interpretation of the minimum standards of fair use. Teachers will know that copying within the guidelines is fair use. Thus, the guidelines serve the purpose of fulfilling the need for greater certainty and protection for teachers. The Committee expresses the hope that if there are areas where standards other than these guidelines may be appropriate, the parties will continue their efforts to provide additional specific guidelines in the same spirit of good will and give and take that has marked the discussion of this subject in recent months

 



[1] Checking a license is not an exact science.  Some publisher's use a catch-all that is included on their invoices.  Others put the information right on the music.  Others like to make you really hunt for it, but it is usually part of the sale transaction.  This is why, when making a purchase of music, it is good to take a screen shot or save the paperwork related to the purchase.

[2] Note: To my knowledge this work does not exist, but it is on my wish list of music to hear.  I love it when genres collide.

[3] This new version would be a "derivative work" based on the original, and have its own copyright protection as a musical composition.

[4] We have reached the limit of my choral knowledge.  Is there separate sheet music for mezzo-soprano and counter-tenor?  Probably.  I am sorry, I quit choir in 7th grade.

Tags: CONTU, Copyright, Digitization and Copyright, Licensing, Music, Section 110, COVID-19, Emergency Response

Topic: Fair Use in Uncertain Times - 7/17/2020
In the spring, it was clear academic libraries providing digital resources were in a state of emer...
Posted: Friday, July 17, 2020 Permalink

MEMBER QUESTION

In the spring, it was clear academic libraries providing digital resources were in a state of emergency and fair use restrictions were loosened.

This fall, we are asked to plan for face to face learning, but we may be asked to turn on a dime and provide digital resources overnight if a student or faculty member in a course is unable to attend class.

We are hearing mixed messages from other institutions. What is our situation today, emergency or status quo?

Thank you

WNYLRC ATTORNEY'S RESPONSE

Before I answer this question, I do have to emphasize: as I wrote here, fair use was not modified during the height of the initial pandemic closures.  Further, there is no case law or regulatory guidance indicating things will be any different if we have to return to the level of lockdown experienced this Spring. 

There is no "emergency use" exception to copyright law--even under fair use.  That said, this is an excellent question that captures the experience of working in higher education right now, and I do have a few helpful things to offer in response.

Higher education libraries trying to support another immediate conversion from in-person to online learning should consider doing the following:

1.  Work with their academic and IT colleagues to optimize their institution's rights under the TEACH Act, which under the right conditions, allows the digital transmission of copyright-protected material.

"Optimizing," in this case, means presenting otherwise inaccessible materials in class, so the TEACH Act's[1] exception infringement can be fully used, while making the most of the medium.  For example, if a history class would typically read a chapter of a book before class, then meet in person to discuss the chapter, perhaps now a part of the online class could consist of the faculty member or students reading the chapter aloud,[2] and the class using an asynchronous message board to discuss it.

This method requires faculty to be flexible, but it is one way to ensure access for all, when all else fails.

 

2.  Unite with other institutions to re-negotiate the terms of digital licenses from academic publishers.

I cannot stress this one enough.  Academic libraries must unite, must negotiate hard, and must threaten to boycott any publisher that refuses to offer a reasonable price for students to access content online.  This was critical before COVID, and it is even more critical now.[3]

 

3.  Much easier, and even cooler than #2: plan to collaborate with students' local libraries to ensure students can take full advantage of Copyright Section 108's support of access via inter-library loan.

What?

That's right.  Let's say I am a college student from Littleplace, NY.   Suddenly, it's October and I have to vacate my dorm room at ABC College, due to a local surge in COVID-19.  To be ready for the rest of my (now online) classes, I need 12 articles, a textbook that costs $500 (that I was previously sharing with two friends), and a course pak I forgot in my dorm.

So long as I have access to the list of materials, I can head over to the Littleplace Library (or call them) and work to find the materials I need.  Using its rights under Section 108 of the Copyright Code, the Littleplace Library can get me a copy of the articles...possibly even in collaboration with the ABC library, or another academic institution with the right subscription.

In my observation, this is a very under-discussed option.  Remember, your students have a right to work with their local library to get copies under a combination of 108 and (on the part of the student) fair use.  The key is having the course materials listed in such a way, that the local college or public library can easily (and quickly) help them.

This, by the way, is one of the many reasons it is critical to keep open every single one of our small and mid-size libraries in small towns and villages across the country.[4]

 

4.  Use your institution's compliance with NY's Textbook Access Act.

This is another "if you have time" one. 

In New York, all higher education institutions and publishers must follow this law[5]:

Textbooks shall be sold in the same manner as ordered by such faculty member or entity in charge of selecting textbooks for courses. In the event such product is unavailable as ordered, the bookstore, faculty, and relevant publisher shall work together to provide the best possible substitute that most closely matches the requested item or items, and the publisher shall make available the price of such substitute or substitutes readily available.

This clause has always been applied to combat predatory pricing for course materials, but lends itself to the current situation, too.  If the instructor was given a discount digital copy, the students should be able to buy one, too.

 

5.  Take some time to examine the latest ruling on academic e-reserves and fair use, so you feel comfortable making the call when you can post things on e-reserve without permission.[6]  Fair use has not been "loosened," but it still has lots of room.  The full document has been updated to "Ask the Lawyer" as "Becker Ruling 2020."  It's boring,[7] but very instructive.

My best wishes for a supported and supportive prep for the Fall semester.



[1]The full requirements of this law can be found at: https://www.law.cornell.edu/uscode/text/17/110

[2] This would also allow presentation through adaptive technology, for those who need it per ADA.

[3] I understand if you are too busy coming up with an "August Staffing Plan" and trying to figure out where to get 10 gallons of hand sanitizer to organize the revolution.  But this really is important.

[4] As if I have to sell most of you on the importance of funding libraries.

[6] Always use your institution's fair use form to record your conclusion.

[7] The helpful stuff starts on page 6.

Tags: COVID-19, Digital Access, E-Books and Audiobooks, Emergency Response, Academic Libraries

Topic: Alternative, fair use solutions for when you can't host a virtual read-aloud - 7/14/2020
For the past two years, our library hosted a 24-hour read-aloud; where people camped on the front ...
Posted: Tuesday, July 14, 2020 Permalink

MEMBER QUESTION

For the past two years, our library hosted a 24-hour read-aloud; where people camped on the front lawn and took turns reading 6-7 books. Due to COVID, we can't hold this event in person this year. Our thought it that we could do it virtually - and instead of reading an entire book, we would ask readers to read the first chapter from one of their favorite books. They would film themselves reading (or we would film them) and then we would post the clip on our YouTube channel. One clip a day would be posted - for a total of 24 clips.

Our questions center around copyright infringement and fair use. Could we host such an event? Would this qualify under educational fair use guidelines?
Could we leave the videos up indefinitely -- or would it be better to have a specific time period and then they disappear?

Any guidance - even if it's a "don't do it!" would be helpful!

Thank you!

WNYLRC ATTORNEY'S RESPONSE

Since the onset of pandemic restrictions, "Ask the Lawyer" has written a lot on different variations of this topic.[1]

Since I am tired of being the party pooper on this issue,[2] I am offering up something new.  Here it is:

Don't do it...unless you make it something new.

What do I mean by "something new"?  I mean a use that is so clever, so additive, that even though it uses a copyright-protected work, it creates a work with independent meaning.

Examples of this "something new" are:

  • Extensive[3] "color commentary" combined with the reading.
  • Replacing the characters in the books with people in your town to make a witty commentary about town life.[4]
  • Combining the reading with a special talent, such as reading each sentence of a travel book while traveling to a different yoga position, or reading a baking scene in a book while making a cake. 
  • Humorous juxtaposition, like reading the first scene of Moby Dick[5] while fishing, or reading a book about puppies to your cat.[6]

Despite all the wishful writing out there, the cloud of the pandemic did not bring us the silver lining of automatic expansion of fair use.  That said, it hasn't diminished fair use.  So, if your library:

  • Isn't using the event as a fund-raiser;
  • Is using the event to educate and engage the public;
  • Requires readers to not use the entire work; and
  • Requires a transformative use, like the examples given above...

...[7] there is a strong chance your event can go on as (virtually) planned. [8]

Good luck and happy reading!

 



[2] The answer is "Don't do it, unless you have permission or the work is in the public domain."

[3] "Extensive" means incisive comments at least every paragraph.

[4] Since I don't want to help you avoid a copyright claim only to wind up with a defamation law suit, if you do this, avoid using books that take deep and honest looks at human nature (No William Faulkner, no Maya Angelou, and certainly no Zadie Smith).  Use sunny books that make the best of things!

 

[5] This is a bad example because Moby Dick is in the public domain.  Which reminds me: you can also try using books in the public domain (published before 1924).

[6] Puppies and a cat?! 50% chance to go viral on day 1. 

[7] Which just happen to line up with the four factors of fair use.

[8] Just in case this suggestion appeals to readers, here is some suggested event recruitment text, based on the member's question:

It's time for our annual 24 hour read-aloud!  Usually, we have people camped on the front lawn but due to our work this year to keep everyone healthy, we can't hold this event in person.  Instead, we will do it virtually.

Here are the details for this year's readers: instead of reading an entire book, please work with us to film you reading from the first chapter from one of your favorite books, along with comments or a special related activity by you!  The final product will help us celebrate reading AND the personalities in our town.  Be as creative as you like, but the added content has to be related somehow to the book.

 

Tags: Copyright, COVID-19, Emergency Response, Fair Use, Library Programming and Events, Online Programming

Topic: Does a mask requirement policy violate the ADA? - 7/8/2020
Our library has taken the next step in re-opening and is welcoming the public back into our buildi...
Posted: Wednesday, July 8, 2020 Permalink

MEMBER QUESTION

Our library has taken the next step in re-opening and is welcoming the public back into our building.  We have a Safety Plan, and we have posted signage in key areas to help the public follow our safety practices, including staying at least six feet apart whenever possible, and every visitor using hand sanitizer upon entry and (if over the age of two) wearing face coverings at all times.

A patron who cannot wear a mask raised the possibility of our policy being a violation of the Americans With Disabilities Act (ADA).  They patron is concerned that this policy discriminates against those who cannot “medically tolerate” a mask.

Are we in the wrong to require masks?

WNYLRC ATTORNEY'S RESPONSE

It is not wrong to require patrons to wear masks.  As of this writing (July 7, 2020), qualified experts agree that masks remain one of the most effective ways to stop the transmission of COVID-19.[1]  In an environment storing circulating materials[2] and shared space, this is a critical step for reducing the risk to library employees, and the public.

That said, even the most well-intentioned efforts can step on the rights of others, including rights under the ADA.  How does a library promote safety, while abiding by the ADA?

The key is to implement and enforce the mask-wearing requirement in a way that doesn’t overstep or unnecessarily limit the access of those living with a disability.[3]

Here is a step-by-step process to help a library assess, draft and enforce a mask-wearing requirement so it is harmonized with the protections of the ADA.

NOTE: For this exercise you will need: a copy of your Safety Plan, the person or team who writes/updates the Safety Plan, a copy of your library’s floorplan, and the documents linked in the steps below. 

Estimated time of activity: 1.5 hours.

Step 1

Isolate the language in your Safety Plan requiring patrons to wearing masks. This is your “Patron Mask Enforcement Language” (“PMEL”).[4]

 

Step 2

Look at your PMEL. 

Is it a Uniform Use requirement, such as: “All patrons must wear masks upon entry, and the mask must remain in place at all times during your visit, in all areas.”

Or

Is it a Circumstantial Use requirement, such as: “All patrons must wear masks upon entry, and the mask must remain in place at all times during your visit, except when seated in our Wipe Down Reading Area,[5] where seating is at least 7 feet apart, and patrons must spray down the surfaces in their zone after use (limit 20 minutes).”

 

Step 3

Look at the floor plan.  Is there ANY place in the library where current CDC-advised safety practices can be used to create a place for “Circumstantial Use” of masks?  In other words, is there any place where, after considering all the risks to mitigate through measures other than a mask, can you offer an official mask-free zone to patrons?

For many small libraries, the answer will be a hard “NO.” The space will be just too small.  And for many libraries with more space, the answer will again be a hard “NO,” based on budget; they may have the space, but the extra resources spent to monitor and sanitize the area are just too costly.

When the Safety Plan team reaches a conclusion, document the analysis, and if any zone can be so converted, mark it on the floor plan (which you will attached to the Safety Plan).  For example: The Safety Plan Team met on DATE to review the floor plan and see if any area could be converted into a mask-free zone for patrons.  Based on space, available furniture, costs, and proximity to circulating materials, the team concluded [whatever you concluded].

 

Step 4

If your library does develop a mask-free zone for patrons, the rules and cleaning protocols for the area must be robustly detailed in your Safety Plan.  The supplies for patrons to do their own spray-down upon arising from the designated seating must be routinely re-stocked.  The rules must be well-posted and strictly enforced. 

 

Step 5

Now, back to the ADA.  Does your Safety Plan have a section on how a patron can request accommodations while the library is operating under the Plan?  If the answer is “no”, this is a good thing to consider adding.

Why?

I have written previously about libraries’ shifting obligations under the ADA.[6]  All of that previous material applies to this situation, but of course, now we have the extra layer of COVID-19. 

Always, with ADA, the goal of the library should be to find a way to ensure access.  That said, some access will not be as a patron envisions, and some requested accommodations are just not implementable.  Because of this, as I wrote at the top of this answer: “The key is to implement and enforce the mask-wearing requirement in a way that doesn’t overstep or unnecessarily limit the access of those living with a disability.”  When modifying operations to reduce transmission of COVID-19, that means posting information about accommodations and access right along with the other signage you’re developing and posting as part of the Safety Plan.

So with all that as background, “Step 5” is answering this question:

“Does our Safety Plan address access and accommodations as required[7] by the ADA?”  If the answer is “no,” continue to Step 6.

 

Step 6

If you have decided you must add some ADA-related language to your Safety Plan, you can do so by answering the following questions:

a.  How does a person contact the library to request reasonable accommodations during a time of adjusted operations?

b.  What reasonable accommodations can your library be ready to offer to the following common safety measure-related issues:

  • inability to wear a mask
  • allergy to hand sanitizer
  • chemical sensitivity (triggered by increased use of cleaning products)
  • requested assistance requires library employee to get closer than six feet (for instance, help with using computer)
  • patron is especially vulnerable to COVID-19 due to other risk factors

Some of the requested accommodations for the above issues will be simple.  Can’t use hand sanitizer?  We’ll provide water, a disposable towel, and soap.  Can’t wear a mask?  We don’t have a mask-free zone, but we’ll be happy to assist you over the phone and you can pick your books up curbside.  Need extra help at the computer?  We’ll figure it out, but our employees have been instructed to stay at least six feet apart unless behind a plexi window, and that is non-negotiable.

Some accommodations are harder.  You’re allergic to the spray-down solution we bought in bulk?  Sorry, we can’t buy a different gross of spray until next month; please let us know what ingredient bothers you and we’ll see if our procurement folks can find something different. Until then, we’ll be happy to assist you over the phone and you can pick your books up curbside.  You have pre-existing conditions that mean you can’t go in a public area, even if there is a Safety Plan being enforced?  We are so sorry to hear that. We miss you.  We wish this whole thing was over.  We are here for you by phone, e-mail, or the internet, and can work with a designated person who will pick up your books.

The key is to ensure that people know how to direct the requests, and that the library is ready to assess them promptly. 

A good way to organize this is to create a section of the Safety Plan providing for signage stating: “For patrons needing disability accommodations while the library is operating under conditions to reduce the transmission of COVID-19, please call NAME at NUMBER, or write to EMAIL or ADDRESS.  You will also find this information in our Safety Plan.  The library is committed to safe access for all.”

 

Step 7: Feeling Confident

Okay, you have followed the six steps for assessing your Safety Plan and building out its provisions with regard to ADA.  Do you feel confident in your approach?[8]  For teams that want a little extra “oomph” in their handling of COVID-19-related accommodations requests, here is some law:

First, here is the language from New York’s Executive Order 202.34, regarding the ability of businesses to require and enforce the use of masks:

Business operators and building owners, and those authorized on their behalf shall have the discretion to ensure compliance with the directive in Executive Order 202.17 (requiring any individual over age two, and able to medically tolerate a face-covering, be required to cover their nose and mouth with a mask or cloth face-covering when in a public place), including the discretion to deny admittance to individuals who fail to comply with the directive in Executive Order 202.17 or to require or compel their removal if they fail to adhere to such directive, and such owner or operator shall not be subject to a claim of violation of the covenant of quiet enjoyment, or frustration of purpose, solely due to their enforcement of such directive. Nothing in this directive shall prohibit or limit the right of State and local enforcement authorities from imposing fines or other penalties for any violation of the directive in Executive Order 202.17.  This directive shall be applied in a manner consistent with the American with Disabilities Act or any provision of either New York State or New York City Human Rights Law, or any other provision of law.

As reviewed in Step 6, “consistent with the Americans with Disabilities Act,” does not mean that those who cannot medically wear a mask are automatically allowed maskless entry as an ADA accommodation.  Rather, a place must see if the risk posed to the public by the maskless individual can be mitigated by a “reasonable” accommodation.  For libraries that can have a mask-free zone, they can be.  For a tiny library where any breath will land on circulating materials, it likely cannot. 

The key to doing this right is thoughtful assessment and documentation: replying to ADA requests should not be a gut-check exercise.  It should be considered, thoughtful, and documented as shown in steps 3 through 6.  Whenever possible, a library assessing accommodations request should consult a lawyer.

Second, here is a pep talk from the US Department of Justice, the body who enforces ADA:

The Department of Justice Warns of Inaccurate Flyers and Postings Regarding the Use of Face Masks and the Americans with Disabilities Act

Assistant Attorney General for the Civil Rights Division Eric Dreiband reiterated today that cards and other documents bearing the Department of Justice seal and claiming that individuals are exempt from face mask requirements are fraudulent.

Inaccurate flyers or other postings have been circulating on the web and via social media channels regarding the use of face masks and the Americans with Disabilities Act (ADA) due to the COVID-19 pandemic. Many of these notices included use of the Department of Justice seal and ADA phone number.

As the Department has stated in a previous alert, the Department did not issue and does not endorse them in any way. The public should not rely on the information contained in these postings.

The ADA does not provide a blanket exemption to people with disabilities from complying with legitimate safety requirements necessary for safe operations.
The public can visit ADA.gov or call the ADA Information Line at 800-514-0301 (voice) and 800-514-0383 (TTY) for more information.

[emphasis added]

So, while ADA, or the disability protections of the New York Human Rights law, most certainly could apply to a person denied access to a covered institution, as can be seen, it’s just not that simple.  If your library builds out the ADA provisions of its safety plan, listens to ADA-related requests carefully, and assesses them promptly, you can feel confident that you are doing your best to provide ADA access.  And if you have the slightest uncertainty about any of those steps, you should contact a lawyer.

However, having seen how these things go, here is a final thought: people who are making ADA requests can feel vulnerable.  It can be scary to admit a disability; it is an act of trust to request accommodations.  On the flip side, many people with disabilities have learned their rights, and fight for them as warriors.  Many parents of children with disabilities have learned to be ardent advocates. 

All of this can create tension (at any already tense time).  So any ADA request, no matter what the tone or context, should be met with a simple “I hear this request.  We will work on this as quickly as possible.  This is important to us.”  Then get the answer, and document it, taking care to not let too much time pass.

Thank you for an important question.



[4] I really tried to come up with a sassy acronym for this.  The best I could do, even after 2 cups of coffee, was “MAP” for “Masking All Patrons.”  That sounds AWFUL so “PMEL” it is.

[5] I won’t lie.  I didn’t try to come up with a better phrase than “Wipe Down Reading Area.”  But I am sure someone out there will.

[6]  https://www.wnylrc.org/ask-the-lawyer/raqs/65 Yes, this is one of the documents to have in the work packet.

[7] Bearing in mind that different libraries will have different requirements.

[8] NOTE: While this Executive Order does not mention the other requirements a business can make a condition of entry, since a library can make adherence to its Safety Plan a condition of the standing Patron Code of Conduct, if a library so chooses, it has more than just the Order to address concerns (this also assures all appropriate due process).  See https://www.wnylrc.org/ask-the-lawyer/raqs/138 for a discussion of how to enfold your Safety Plan into your Code of Conduct.

Tags: Accessibility, ADA, COVID-19, Emergency Response, Reopening policies

Topic: Optional removal of materials from personnel records - 6/29/2020
The library is using NYS Archives and Civil Service references to set personnel and payroll files ...
Posted: Monday, June 29, 2020 Permalink

MEMBER QUESTION

The library is using NYS Archives and Civil Service references to set personnel and payroll files records retention and disposition.

A question arose regarding employee rights to request removal of materials from personnel records.

The committee’s question was specifically about removal of a negative matter after the minimum required retention time had elapsed.

In this instance there was no question about the accuracy of the record nor was there litigation involved or anticipated.

WNYLRC ATTORNEY'S RESPONSE

There are a lot of little details to address in considering this question, but first, there is one big principle I must emphasize. When it comes to records retention—and especially when it comes to employee-related records—nothing should be discretionary.

In other words, if an employer wants to create a process where every corrective action plan,[1] performance evaluation, employment-related investigation, or incident report is removed after its minimum retention period has elapsed, that is fine. However, unless it is a benefit that has been carefully negotiated and confirmed in a contract,[2] there should be no process for an employee to initiate optional removal of materials, and by no means should that process require the employer to make a “yes” or “no” decision.

The moment personnel records that could be interpreted as “negative” become subject to an employee-initiated, optional procedure, the employer, simply by having such a procedure, has: 1) admitted that possibility that the materials could have a negative impact on the employee; 2) created a system where such material could be retained inadvertently; and 3) set up a scenario where such a request could accidentally or deliberately be denied or perceived as somehow subject for debate, potentially triggering the possibility of a complaint, litigation, or a damage claim.[3]

Unless retention is being considered for historic/archival purposes, record retention or destruction should never be discretionary (and of course, the decision to retain certain records for historic/archival purposes should be based on objective criteria).  The best approach for management of employee performance-related records is simply that they be retained as required, or be purged when no longer needed, based purely on the category (not the substance) of the records’ content.[4]

So, my answer to this question is: there should be no process for an employee to request optional removal of negative materials from a personnel file. Rather, the removal of material from personnel files should only happen per uniformly and routinely applied policy.[5]  If a negative review or incident report has served its purpose and is no longer needed,[6] it may be removed as part of the routine purging policy and process. If it is still needed, it should be retained.  There should be no middle ground; it creates risk.  If your library is part of a collective bargaining agreement or uses contracts that include this approach, employees should all be notified and trained on how to exercise these rights.

Thank you for an insightful question.



[1] Just in case you are new to the Human Resources world, a “corrective action plan” is a time-limited plan with a clearly articulated goal and measurable steps to address a performance concern.  Here is an example of a properly formulated Corrective Action Plan, taken from my domestic life: “To ensure optimal vegetable growth and family cohesion, for the next eight weeks, every family member will spend no less than ten minutes weeding per day.  To enable verification, family members will place uprooted weeds on the Stick Pile.”  Now, here is an improperly formulated version: “If you Ingrates don’t help me in the garden today, I will put a dead thistle by your pillow tonight.”  Both techniques can, of course, yield results, but only one wins the “Happiest Workplace” award.

[2] Of course, a collective bargaining agreement could create the right to request removal of accurate information from a personnel file.  Again, however, because such a discretionary approach might not be exercised or even known by all employees, I don't see this as a fair or helpful clause (to either employees, or the employer).  A better option would be a simple records purge, or a purge tied to an objective performance metric (“after three years of ‘satisfactory’ reviews, this Corrective Action Plan will be removed from the employee’s record”).

[3] These are all the “little details” I mention in the opening sentence, but as you can see, they aren’t so little.

[4] With all due consideration of privacy.

[5] This could include, by the way, a Corrective Action Plan process with a “self-destruct” measure for the guts of the “negative” issue.  In other words, the CAP policy itself could say “Upon satisfactory completion of a Corrective Action Plan, after # years, the only record retained will be the summary note confirming successful completion of a Plan of Improvement.”  But again, this should be per a uniformly applied policy, not a discretionary request.

[6] By “needed,” I mean, among other things, that proof of the remedial action taken by the employer is no longer required to protect the employer.  While many policies base this on statutes of limitations, most only start the clock after the employee’s period of employment is over, and that, in my view, is generally the most prudent choice.

Tags: Employee Rights, Management, Policy, Retention, Personnel Records

Topic: Does a library need a disclaimer stating it is not responsible for COVID-19 cases? - 6/25/2020
I understand that the libraries need a disclaimer stating that the library is not responsible shou...
Posted: Thursday, June 25, 2020 Permalink

MEMBER QUESTION

I understand that the libraries need a disclaimer stating that the library is not responsible should a visitor or patron become ill with COVID-19. Is this true, and if so, do you have suggestions on wording for this disclaimer?
 

Thank you

WNYLRC ATTORNEY'S RESPONSE

I appreciate this question, because it gives me a chance to make an important clarification:

As they prepare to re-open and re-welcome the public for summer 2020, libraries and other chartered entities DO NOT need “disclaimers”[1] to combat alleged responsibility for employee and patron cases of COVID-19. Instead, they need:

  • a WRITTEN SAFETY PLAN (customized to their own operations);
  • SIGNAGE and other documentation to enforce the Plan; and
  • Clear and consistent ENFORCEMENT.

Why is that?  Because limiting liability for the transmission of disease is not the same as limiting liability for riding a roller coaster.

Liability based on infection/illness is based on either 1) the intentional act of deliberately spreading infection (for instance, someone with COVID-19 deliberately spitting on someone); or 2) the negligent act of not doing what you were reasonably supposed to do, and thus causing a heightened risk of harm (for instance, someone mistakenly using the wrong product to clean a high-traffic surface).

When it comes to a person allegedly getting COVID at a library, no disclaimer will reduce liability for either type of action. What is needed, instead, is to show that the library has taken all reasonable steps to protect the safety of employees and the public.  That is the key to limiting liability.

This can only be done via a Safety Plan based on guidance from NYSDOH, OSHA and the CDC.   Since a Plan is only good if the planners follow it, signage[2] promoting adherence to the Plan, through consistent and well-documented enforcement, is also critical.

I am emphasizing a written Safety Plan not only because the State is requiring them, but because in New York, disclaimers, waivers, and “At Your Own Risk” notices are only effective under precise circumstances. 

For instance, an insurance carrier can refuse coverage based on a properly worded disclaimer.  A sky-diving company can avoid liability for a customer’s heart attack with a waiver.  But the insurance disclaimer still won’t void the liability of the insured, and the waiver won’t work if the damage is caused by a sky-diving instructor’s willful action.   The enforceability of such documents depends on the circumstances.

What DOES guard against liability for transmission of disease is showing that a library 1) identified appropriate safety practices confirmed by a recognized authority; 2) uniformly and consistently enforced those practices.  In that approach, signage alerting people to the risk of transmission (and requiring adherence to rules to minimize it), is part of that “uniform and consistent” enforcement.

Which brings me to the hard truth I have to emphasize:

If your library can’t 1) identify appropriate safety practices confirmed by a recognized authority as reducing transmission of COVID-19; and can’t 2) uniformly and consistently enforce those practices, your library should not operate.  No waiver or legal document will protect it if basic safety practices are not identified and enforced.

Now, all that said, as part of its “consistent and uniform enforcement” of safety practices, a library could decide to ask each patron to review and sign a document like this:

The ABC library is now open for [insert limited services].  To ensure consistent use of appropriate safety practices, please review and agree to the following practices before entering, which will apply until the board determines otherwise:

I agree to wear a mask at all times in the library; if I am medically unable to wear a mask, I will call the library at [##########] to arrange reasonable accommodations.

I will sanitize my hands prior to entry at the station provided by the library.

I will avoid touching my face and mask while in the library's premises.

I will abide by any other safety-related requests by library staff.

I will [insert your library’s specific requirements, as stated in the Safety Plan].

I understand that these practices are currently the rules of the library and they are being enforced both for my safety and that of the public as currently advised by the Center for Disease Control.

Signed: ________________________

 

This type of signed “acknowledgement” is one way to show that people have been notified that these are unusual times in the library, and that entering the premises may bring more than the usual risk.  That said, this approach is not an “acceptance of risk” document, disclaimer, or liability waiver.  For the reasons stated above, those approaches really aren’t what’s needed for the simple resumption of library activity.  What is needed is a Safety Plan.

Of course, if your library decides that aside from resuming some modified operations, it would like to host some inherently hazardous activities (riding a mechanical bull,[3] digging a community garden with heavy equipment, printing Jarts on the 3-D printer) a waiver is a good idea.  But for resumption of activities while the country is still fighting COVID-19, your Safety Plan is the key.

Thanks for a great question.

 



[1] In New York, a “disclaimer” is a formal written document or policy clause used by an insurance company to deny coverage for liability.  As an example, see §3420 of the New York Insurance Law.

[2] By “signage,” I mean any documentation in the library, or on the Internet, that encourages Safety Plan compliance.

[3] I had to draft a waiver for a mechanical bull once.  Sometimes being a lawyer is fun!

Tags: COVID-19, Disclaimers, Emergency Response

Topic: Rights for music during graduation ceremonies - 6/15/2020
We have received several questions about setting graduation ceremonies to music and stre...
Posted: Monday, June 15, 2020 Permalink

MEMBER QUESTION

We have received several questions about setting graduation ceremonies to music and streaming them or recording them and sharing them with students. What are the laws surrounding this? There seems to be a lot of misinformation out there. Below is a question I received:

The slideshow for the [public] high school graduation is complete. [T]he students would like to have songs from “High School Musical” added to the slideshow. Is this possible? If copyright comes into play and we can't there will be no music added to the show. Please advise, We have viewed many other shows from various high schools and at the end of the show it simply states "we do not have rights to this music."

WNYLRC ATTORNEY'S RESPONSE

The need to migrate ceremonies online has created a tsunami of copyright concerns.  What is a ceremony without the right music?  But this question pertains specifically to high school graduations for public schools, so we’ll confine it to those institutions.

Readers, I have to be real with you: a newly minted Supreme Court Case, Allen v. Cooper[1], means public high schools (which are arms of the state) are arguably immune from liability for copyright infringement.  In that case, the court invalidated the “Copyright Remedy Clarification Act (“CRCA”), which had expressly removed state’s “sovereign immunity” to a copyright suit. So on a very pragmatic level, some public schools, colleges, and universities may be adding that to their risk assessment of questions like this.

But professional educators likely don’t want to do the wrong thing simply because they are arguably immune from being punished for it.  As Justice Kagan, writing in Allen and quoting an expert witness put it: “what State, after all, would “want [] to get a reputation as a copyright pirate?”   So we’ll proceed just as the member’s question suggests: that they want to do the right thing.

With that in mind, here is my answer to the question: “[T]he students would like to have songs from “High School Musical” added to the slideshow. Is this possible?

My first bit of guidance is to check the school district’s license with either ASCAP or BMI (this is the license that covers permission to play music at a high school dance). It may be that some streaming rights got thrown into your public performance license. This isn't typical, but you never know, and if you have the right clause in your contract your problem could be solved right away (and in fact, your problem never existed).

If there isn't a contract that already gives your school permission to use the song(s) as the member describes, your school needs permission. This can be done through any number of licensing agencies.

As but one example, the music to “High School Musical” is available for licensed streaming through the Harry Fox Agency:

Permissions from the website Songfile for "High School Musical"
 

(As can be seen, your school could even decide to use the karaoke version.)

The bad news is that it’s sort of a pain to obtain the license; you have to register and there is a fee.  Further information can be found at the link here: https://secure.harryfox.com/songfile/faq.jsp#faq2.

[NOTE: since a school district is one legal entity, it is also good to check and see if the district itself has an account already.  Signing up for a service like this does not need to be done on a school-by-school basis. Of course, this brings us to school policy and procurement issues, and for that, I refer to the attorneys serving the BOCES that serves your school!]

I hope the red tape doesn’t get in the way of the students having a good ceremony.  They have been through enough this semester.



[1] You can find the full text of the case and some commentary here: https://www.scotusblog.com/case-files/cases/allen-v-cooper/

 

Tags: Copyright, COVID-19, Emergency Response, Music, Streaming

Topic: Contact tracing and privacy in libraries - 5/28/2020
Given libraries are preparing plans to reopen, I am looking for a follow up to the 3/19/2020 quest...
Posted: Thursday, May 28, 2020 Permalink

MEMBER QUESTION

Given libraries are preparing plans to reopen, I am looking for a follow up to the 3/19/2020 question posted to Ask The Lawyer pertaining to being informed that an individual who has been confirmed to have COVID visited one of our libraries. (participated in a program).

With the new tracing protocols (COVID-19) required by Re-Open New York, what, if any, impact will there be on CPLR 4509? Will libraries be required to provide information and if so, to what extent? Currently we require a judicial subpoena in order to provide any information regarding a patron - including identifying if a patron has been in the library.

Your guidance is much appreciated.


 

WNYLRC ATTORNEY'S RESPONSE

The short answer

This answer is being written on May 28th, 2020.

At this time, in addition to Executive Order 202 issued on March 7, 2020 and declaring a state of emergency in New York through September 7th, 2020, there are 30 Executive Orders.

These Executive Orders create temporary modifications to a wide and ever-increasing array of state law and regulations. They have impacted elections, public health practices, landlord tenant relations, and countless operations of the New York State justice system.

However, as of this date, there has been no modification of section 4509 of the state Civil Procedure Law and Rules (“CPLR”), which, with only very limited exceptions, bars third-party access to a user’s library records.

Therefore, at this time, any library receiving a request from a third party for confidential library records, even if in relation to contract tracing efforts, should follow the same procedure they do for all other third-party requests: require a subpoena or judicial order.

 

The same answer, but with more information and analysis

I am grateful to the member for posing this question, because not only is it important to have clarity on this precise issue, it is important for information management professionals across the state of New York, including some of New York's most trusted information professionals — librarians — to be thinking about the impact and finer points of contact tracing.

So what is “contact tracing”?

The Centers for Disease Control describes contract tracing this way on their current COVID-19 response page[1]:

In contact tracing, public health staff work with a patient to help them recall everyone with whom they have had close contact during the timeframe while they may have been infectious.  Public health staff then warn these exposed individuals (contacts) of their potential exposure as rapidly and sensitively as possible.

After declaring COVID-19 a “communicable disease” as defined by the state’s Public Health Law, New York began using contact tracing to combat COVID-19.[2]  Local health departments led the way, organizing information and coordinating warnings within their jurisdiction, an initiative that inspired the previous question referenced by the member.

With the adoption of “New York Forward,” 30 contact tracers for every 100,000 residents is one of the express metrics[3] being used to establish when one of the state’s ten regions is ready to begin a phased reopening.  So, every region will be recruiting and deploying “tracers” to gather information and issue warnings to individuals who testing has confirmed have been exposed to COVID-19.

While emphasizing that such warnings must be issued “rapidly,” the CDC’s guidelines for contact tracing also emphasize privacy:

To protect patient privacy, contacts are only informed that they may have been exposed to a patient with the infection. They are not told the identity of the patient who may have exposed them.”

The State of New York, however, does not require this level of confidentiality in its laws regarding quarantine, notification of infection, and contact tracing related to most communicable diseases.  While the precise regulations governing the use of contact tracing to fight the spread of HIV require the consent of the patient, the regulations applying to COVID-19 do not have similar requirements.[4] Nor is such information regarded as protected health information (“PHI”) under HIPAA.

I am highlighting these considerations not to denigrate contact tracing, which has been documented as effective in combating pandemics. However, as of this writing, as reported by The New York Times, many in authority, or with credibility in the arenas of privacy and data security, have expressed serious concerns regarding the procurement and arrangement of the software and personnel that will be used in this massive public health initiative.

Caution about privacy, even during times of emergency, is a good thing.

With all that, the collaborative, community health-focused approach I outlined on March 19, 2020, in https://www.wnylrc.org/ask-the-lawyer/raqs/122 is one I continue to endorse.

In addition to that approach, here is a suggested reply in the event your library is contacted by a state-employed contact tracer, designed to work with your standard protocol for complying with 4509:

[After verifying credentials]

We know your work is critical to public health.  Please send us a written list of what you need, and we will work to obtain consent from our users, as required by CPLR 4509.  In the alternative, please ensure what you need is very thoroughly set forth in a duly issued subpoena or judicial order.  Our library will work to expedite your request as soon as we know we are authorized to do so.

 

One final point

After conducting the research set forth in this answer, it is my opinion that CPLR 4509’s assurance of the confidentiality of library records is not at odds with the current emergency measures our state is taking to protect lives and get our world back on track. 

First, it is critical to remember that under 4509, a person may give their written consent to disclosure.  Many people, upon learning they might pose a danger, will give their express and voluntary consent, if they have the capacity at the time.  That is their right, and there is no concern with your library contacting them to ask the question.

Second, if the need for confidential library records is truly critical, local board of health officials—and the tracers who will be helping their localities—can invoke the authority created by the public health law[5] to obtain duly authorized subpoenas. 

Unlike many other laws and regulations, CPLR 4509 can remain as written, while New York undertakes an unprecedented, massive effort to conduct contact tracing, and protect public health.  

Thank you for an important question.

 



[2] Since reporting new or unusual communicable diseases is also required, cases were probably also reported before March 7.

[3] These metrics are laid out in a graph found at https://www.governor.ny.gov/programs/new-york-forward.

[4] That section is 10 NYCRR 2.10, which states: “It shall be the duty of every physician to report to the city, county or district health officer, within whose jurisdiction such patient resides, the full name, age and address of every person with a suspected or confirmed case of a communicable disease, any outbreak of communicable disease, any unusual disease or unusual disease outbreak and as otherwise authorized in section 2.1 of this Part, together with the name of the disease if known, and any additional information requested by the health officer in the course of an investigation pursuant to this Part, within 24 hours from the time the case is first seen by him, and such report shall be by telephone, facsimile transmission or other electronic communication if indicated, and shall also be made in writing, except that the written notice may be omitted with the approval of the State Commissioner of Health.

[5] New York Public Health Law, Section 309.

Tags: COVID-19, CPLR 4509, Emergency Response, Privacy, Contact tracing

Topic: Ripping DVDs using DVDSmith - 5/27/2020
I've recently come across a situation where people are ripping DVDs they own to a di...
Posted: Wednesday, May 27, 2020 Permalink

MEMBER QUESTION

I've recently come across a situation where people are ripping DVDs they own to a digitized format in Roku. I'm providing the link at the end of this question. My concern is how is this possible? Primarily intended for personal use but I can see where this could expand out to a slippery slope where it is then more individuals get copies, etc. I'd would like the lawyer to weigh in on this: https://www.dvdsmith.com/rip-dvd/stream-dvd-movie-to-tv-with-roku-3.html

WNYLRC ATTORNEY'S RESPONSE

“Slippery slope,” indeed.  The member has identified a battleground in the “1201 wars.”

“1201” is a Section of the Copyright Act.[1]  It bars working around the anti-duplication protections built into certain types of copyrighted works (software, digital entertainment).  It also bars “trafficking” in the technology that can perform those work-arounds.  DVDSmith appears to sell this technology.

For those of you who don’t want to follow the link in the question, I checked out the DVDSmith,[2] and here is their “About” description:

DVDSmith Inc. (www.dvdsmith.com) is a multimedia software company that develops and markets DVD copy, DVD ripper programs for both Windows and Mac platforms. DVDSmith products will circumvent the copy-protection schemes used on commercial DVDs and enable you to make copies of store-bought DVDs.”

I puttered around the site a bit, not just taking their word for what they are.  And while I didn’t delve too deep,[3] as the member points out, the particular product linked to the question does boast the ability to enable streaming of non-supported formats to HDTV via the Roku 3.  It claims to do so by enabling the conversion of those files from other formats, a process that can require getting around (“circumventing”) access control technology.[4]

Is such conversion and duplication always wrong?  No.  While 1201 can bar the type of copyright “circumvention”[5] described by DVDSmith, and can also bar anti-circumvention tech,

1201 also creates permanent and temporary[6] exemptions to one or more of the statute’s prohibitions, including exemptions for educators and libraries

Here is the text of the permanent exemption for libraries:

(d) Exemption for nonprofit libraries, archives, and educational institutions.

(1) A nonprofit library, archives, or educational institution which gains access to a commercially exploited copyrighted work solely in order to make a good faith determination of whether to acquire a copy of that work for the sole purpose of engaging in conduct permitted under this title shall not be in violation of subsection (a)(1)(A). A copy of a work to which access has been gained under this paragraph—

(A) may not be retained longer than necessary to make such good faith determination; and

(B) may not be used for any other purpose.

(2) The exemption made available under paragraph (1) shall only apply with respect to a work when an identical copy of that work is not reasonably available in another form.

Is your head starting to hurt?  You’re not alone.

This combination of strong prohibitions and well-defined exceptions creates the “1201 contradiction,” where some circumventions of copyright controls are expressly allowed—but selling to enable them may be illegal. 

There is a ton of thorough analysis out there on “1201,” and this “contradiction.”  It comes from a range of perspectives: the entertainment and software industries (whose general position is that the rules aren’t strict enough), the innovation, information, and academic sectors (whose general position is that the rules are too strict) and government (whose general approach is to try and please everybody, and as usual, makes nobody happy).  

To sample the variety of 1201 analysis, try reviewing the materials at:

https://www.copyright.gov/1201/

…and then reading the materials at:

https://www.eff.org/deeplinks/2018/10/new-exemptions-dmca-section-1201-are-welcome-dont-go-far-enough

Once you recover from the whiplash of these diverging priorities and opinions, you’ll realize anew that just like the Marvel Universe, the Copyright Universe has numerous alternate realities.

To answer the member’s question: what is my take on this?

The member is right to feel cautious about the products offered by DVDSmith, since under 1201, the capability described could violate the law.  But there ARE exceptions to what 1201 bars, and libraries should be ready to exercise them, advocate for them, and make sure they are meeting their needs.

My deepest feeling is that like Section 108, the basics of Section 1201 should be taught in library school, and each librarian ready to advocate for the position they feel serves the public.

Thanks for a great question!

 



[2] How about a question about copyright protections for the mountain vistas of the Adirondacks, or a trademark on the culture of Martha’s Vineyard? 

[3] It had the same vibe as a site for dubious herbal remedies.

[4] Hello, FBI. No, I did not download the software and do a test run with my “13th Warrior” DVD.

[5] As defined in the statute, to “circumvent” generally refers to acts such as avoiding, bypassing, removing, deactivating, or impairing tech that prevents copying. See 17 U.S.C. § 1201(a)(3)(A), (b)(2)(A).

Tags: Copyright, Digitization and Copyright, Ripping/burning, Section 1201

Topic: Local organizations meeting using library's Zoom account - 5/27/2020
My Director has asked me to ask you the following question. In normal circumstances the library wo...
Posted: Wednesday, May 27, 2020 Permalink

MEMBER QUESTION

My Director has asked me to ask you the following question. In normal circumstances the library would host the meetings of local organizations that do not have a building of their own. The library hosts the meetings of organizations like "Concerned Citizens", "Race Unity Circle", the "Bahá'í society", etc. All nonprofits that do not have large budgets and utilize the library for their meetings. Is the library legally allowed to use the library's Zoom subscription to host meetings for these groups as an Outreach Program? In the same way the librarian would be there to book the meeting, set up tables/chairs, and greet the group, the Zoom meeting would be booked, the link distributed to members, and the librarian there to open the meeting up at the specified time. I would be interested if your answer is different depending on whether the library is in an emergency closure situation or not.

WNYLRC ATTORNEY'S RESPONSE

Life is full of surprises.  When I was in third grade, I was surprised to learn that this strange country called “Canada” occupied the upper half of North America.  When I was in fifteen, I was surprised to learn that “brooch” rhymes with “roach.”[1]  And upon researching the answer to this question, I was surprised to learn that Zoom doesn’t have an “exclusive use” clause in their service agreement.[2]

Now, let me be clear, the Zoom “Terms of Use,” most certainly bar simply enabling a “third” party to use a library’s account.  Here is the clause that does that:

You may not offer or enable any third parties to use the Services purchased by You, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by You) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.

In other words, Zoom doesn’t want you to “offer” your account out to another party (even if that party is a legit not-for-profit). 

But the member has asked if they can serve as the “host” of the meeting, mirroring the way their library opens its doors for certain groups and gatherings.  Both functionally and grammatically—and thus legally—this means the library is the one using the service.  It’s like my law firm using our Zoom to host a board meeting for a client, since I need to be there anyway.  Or, perhaps more closely, an educational institution letting a student group use its Zoom, so the student newspaper can soldier on. 

So the stark, simple answer to the member’s question (“Is the library legally allowed to use the library's Zoom subscription to host meetings for these groups as an Outreach Program?”) is “YES.”

That said, being a detail-oriented, pro-risk-management, and liability-averse kind of attorney, I can’t just leave it there.

Physical meetings at your library all must follow some rules.  Some libraries set these rules by policy, others confirm them with both a written policy and a facility use contract. 

These documents ensure that the particular rules at that library will be followed.[3] The same should apply when the library is hosting a Zoom meeting for your community. 

In addition, since the Zoom “Terms of Use”[4] and related agreements impose certain rules, and hold the licensee (your library) responsible for any violations, the conditions for library-hosted meetings should not only require adherence to your rules, but also to Zoom’s.

Zoom’s “Acceptable Use” Policy expressly bars numerous types of activity, including but not limited to:

  • Promoting violence.
  • Harming children.
  • Displays of nudity, violence, pornography, sexually explicit material, or criminal activity.
  • Human trafficking.
  • Supporting or facilitating terrorism or terrorist organizations
  • Any activity that is defamatory, harassing, threatening or abusive.[5]
  • Copyright infringement.

I imagine most libraries can endorse these conditions, but some may be (rightly) wary to impose content restrictions on meetings.  While the limits your library has agreed to with Zoom is a contract the library has voluntarily accepted, I can see a (very) few instances where perhaps a first amendment concern could loom.  So any library considering hosting Zoom meetings for users should think that aspect through thoroughly, and be ready to address it just as you address such concerns for physical meetings.

To help a library navigate these straightforward but choppy legal waters—especially the Zoom Terms’ bar on letting a third party use your account—here is a template “Virtual Meeting” Agreement. 

NOTE: As always, template agreements should be reviewed by your library’s legal counsel to ensure they conform with your library’s charter, bylaws, unique identity, and other policies.

Videoconference Meeting Agreement—TEMPLATE ONLY

Person filling out this form [must be cardholder]

 

Group

 

Meeting date, time, duration

 

Target date to send out the invitation

 

Please note: for the orderly operation of the meeting, pre-registration should be required, OR attendees should be given only limited participation ability.

 

 

Purpose of meeting (must be a purpose consistent with library operations)

 

Estimated number of attendees

 

Record meeting?

 

Live stream meeting?  Please list where the livestream will be accessible

 

Please list your group’s Meeting Facilitator

[see Meeting Facilitator Responsibilities below]

Name:

Title:

E-mail:

Phone number:

Address:

[To be filled in by library]

Library Staff serving as “host” on the videoconference.

Name:

Title:

E-mail:

Phone Number:

Facility Use Policy

[attach]

Additional terms of use

https://zoom.us/reasonableusepolicy

 

 

On the above date and time, the [NAME] library will host a meeting of the above-listed group for the above listed purpose.

It is understood that every attendee of the meaning will be expected to abide by both all the applicable rules of the library for meetings at our facility, and to observe any and all above-listed additional conditions. 

The above-listed “Meeting Facilitator” should be logged in to the meeting at least 10 minutes before so they can discuss the orderly conduct of the meeting with Library Staff. 

The Meeting Facilitator must discuss the functional aspects of the meeting with library staff before the start of the meeting; they should be prepared to discuss how attendees will be able to interact and how the relevant functions of the meeting will be used to meet the meeting's stated purpose.

The Meeting Facilitator should also be comfortable with using Zoom's capabilities to assist the Library Staff in hosting the meeting (monitoring the chat, moderating the discussion, muting or removing participants if needed).

When it is time for the meeting to begin, the library staff hosting the meeting will state:

“Welcome to [MEETING NAME].  Hosting an online meeting with your group is a service the library provides to our community groups without charge.  Just as with hosting meetings in our physical space, the library must enforce rules regarding respect, non-discrimination, and accessibility.  If you have concerns in that regard, please let me know by sending me a private message during the meeting.  And now I’ll turn it over to [NAME] to start the meeting.”

It is expressly understood on behalf of the group that:

  • The library is hosting the meeting;
  • An employee of the library will initiate the videocall;
  • An employee of the library will co-facilitate the technical aspects of the meeting;
  • An employee of the library will participate in the meeting as set forth above to ensure the applicable rules and the conditions of this Agreement are fulfilled;
  • Participants who do not abide by the library’s rules will be muted or removed from the meeting, in the library’s sole discretion;
  • The library can cancel or terminate the meeting, in its sole discretion, at any time.

Please alert the library to any ADA considerations for hosting this meeting.  For meetings with more than 50 participants, the Meeting Facilitator should be ready to discuss accessibility objectives with the Library Staff member.

We welcome your ideas for making our co-hosted meetings better.  Constructive feedback may be sent to [e-mail].

 

Signed: ___________________________________

                        [library representative]

 

Acknowledged: __________________________________ on DATE: ______________.

                                    [cardholder]

 

Unless there is a bylaw, policy, or contract barring staff serving as the meeting host, this is most definitely a service that can be offered even when your library cannot be physically open to the public.  However, at all times, it must be clear that this is the library’s meeting.  Account ID’s, passwords, and hosting capabilities should not be given away.  Co-hosting should never be converted into changing the host.  The meeting “intro-text” should be read every time; it is there to make sure that the library’s primary role is documented in every single meeting you host.  Just like a meeting room should never be used when the library is not staffed, the virtual meeting room must remain in the control of your institution—otherwise, there could be concerns with the license. 

And with that, I wish whoever at your library becomes the “virtual meeting staffer,” a stout heart, a quick finger on the mute button, and lots of community-oriented fun.



[1] I have since been informed that either pronunciation is acceptable.  Fortunately, with my spare fashion sense, it is not a word I use often.

[2] As found May 23, 2020 at https://zoom.us/reasonableusepolicy.

[3] The conditions in these documents will change from library to library.  Some libraries have to enforce the rules of a landlord.  Others will decide to charge a nominal fee (DO NOT do that for a Zoom meeting), or restrict use to a charitable use.

[4] As found on May 23, 2020 at https://zoom.us/terms.

[5] By the time I got to this part of the list, I was thinking “Jeez, it’s an ugly world out there, and Zoom has a front-row seat to it.”

Tags: COVID-19, Emergency Response, Meeting Room Policy, Library Programming and Events, Local Organizations, Online Programming, Policy, Zoom

Topic: Pomp & Circumstance public domain use - 5/27/2020
The song “Pomp & Circumstance” is in the public domain. Is it permissi...
Posted: Wednesday, May 27, 2020 Permalink

MEMBER QUESTION

The song “Pomp & Circumstance” is in the public domain.

Is it permissible for students to play this music while being recorded and for the district to stream it live as well as distribute a link to the recording later?
 

WNYLRC ATTORNEY'S RESPONSE

Not only can the students play, record, and stream “Pomp & Circumstance,” but they can also create an original musical based on it, rap over it, score an original movie with it, and in short: do anything they want with it.[1]

While anyone graduating in 2020 deserves this kind of red-carpet legal treatment, not only can the students do it, but everyone else can, too.  That is the beauty of a work being in “the public domain.”[2]

Thanks, and may all your virtual ceremonies be joyous.



[1] That said, any publisher that has created and distributed its own version of “Pomp and Circumstance” with a specific arrangement, illustrations, instructions, etc. may own the copyright to that particular text, and it shouldn’t be duplicated via hard copy or scanning.  In a similar vein, any publisher that has issued a specific recording may own the rights to that specific recording, and that should not be streamed or used without permission, either.  But the composition of “Pomp and Circumstance” is in the public domain, so generating a student-created version of it is fine, and if the district is the one recording it, they (and the performers) own the copyright (see Copyright Office Circular 56)!

[2] “In the public domain” means “no longer protected by copyright.”  Edward Elgar, composer of “Pomp & Circumstance,” died in 1934, so even under the most rigorous scheme of ownership, the copyright to P&C has expired.

Tags: COVID-19, Emergency Response, Online Programming, Public Domain, Streaming

Topic: Ed Law 2-d Compliance and Vendor Products - 5/21/2020
Many districts have had COVID-19 access for SORA Ebooks. I am not sure if it is ED Law 2-d complia...
Posted: Thursday, May 21, 2020 Permalink

MEMBER QUESTION

Many districts have had COVID-19 access for SORA Ebooks. I am not sure if it is ED Law 2-d compliant. We do not want to support or suggest products to our membership that do not meet that compliance. Can you let us know? Thank you!

WNYLRC ATTORNEY'S RESPONSE

New York school libraries[1] operate in a complex web of regulations governing student privacy.  Laws such as FERPA, CPLR 4509, and “ED 2-d” all restrict what can be done (and can’t be done) with library records related to students.

At “Ask the Lawyer,” we’ve spent a fair amount of time on FERPA[2] and CLPLR 4509[3], so if you need some background on those, check the footnotes for this sentence.

That said, I have never written an “Ask the Lawyer” on ED 2-d, the new law protects “personally identifiable information” (“PII”)” held by a school district.  I’ll weave the relevant parts of the law into this answer.

And I have never written about (or used) SORA.  Since SORA is at the heart of this question, here is a little background on that:

SORA is a service provided by Rakuten/Overdrive.  In its own words, it provides “Millions of ebooks and audiobooks for your students. Thousands of publishers. Comes loaded with hundreds of premium titles at no cost. Infinite reading possibilities on practically any device.”[4]  Participating school districts enable student access to SORA through their own log-in points (the mechanics of which vary from school to school).

How does the service work?  As one reviewer put it[5]: “SORA can be downloaded for free by all students and teachers. If their school or district is an OverDrive partner, they can then use SORA to access their school's digital collection and also connect with the local public library's digital collection.”[6]

And finally, it is worth noting that SORA has a very cute logo: a puffy-silver astronaut, soaring wide-eyed into an eye-relaxing sky of silver-blue.  The astronaut is a combination of a Pokémon, Sailor Moon, and Big Hero Six.[7]  He is ready to read, and all set to escort your students to a universe of reading, too!  The logo is so cute, I don’t know how the member could think this company could do any wrong.

But savvy librarians are not distracted by cute logos.  And in this case, our savvy librarian-member asks: is use of SORA by a district compliant with the privacy protections of New York State Education Law 2-d?

We’ll start this analysis with a term defined by the law: “third party contractor,” which ED 2-d defines as:

 … any person or entity, other than an educational agency, that receives student data or teacher or principal data from an educational agency pursuant to a contract or other written agreement for purposes of providing services to such educational agency, including but not limited to data management or storage services, conducting studies for or on behalf of such educational agency, or audit or evaluation of publicly funded programs.

If SORA (or another service), meets this definition, then the district/school using it must implement the requirements of Ed 2-d, which are in the regulations found here:

http://www.nysed.gov/common/nysed/files/programs/data-privacy-security/part-121.pdf

I would set the full requirements out in this answer, but they are lengthy, and the regulations are about as plainly worded as can be.

In addition, for a library at a specific school in New York, there is a more institution-specific way to find these requirements.  To comply with Ed 2-d, every school district must have their own “District Privacy Officer” (“DPO”)[8] and that DPO must ensure that their institution develops and publishes a document called the “Parents Bill of Rights for Data Privacy and Security.”[9]

The parents’ “Bill of Rights” must list the district/school’s obligations vis-à-vis third-party contractors, including precise requirements for the protection of student information accessed by a specific contractor.  In other words, for each “third party contractor” (like, potentially, SORA), a district/school must publish the unique “supplemental” contract terms they’ve created to ensure the service meets Ed 2-d requirements. 

Readers who want to see the Ed 2-d criteria of their own particular district or school should be able to find it by searching for that district’s “Bill of Rights.”[10]  For any district using Overdrive and/or SORA, the “Bill of Rights” will either contain supplemental terms applicable to SORA, or they will have determined that their use of SORA does not disclose any PII.

So here is the question at the heart of the member’s question: does use of SORA, as arranged by a district, disclose PII to Overdrive?  While each district needs to make that determination on its own, in my opinion, any third party contractor that students must log into using a school-issued ID, after which the student will access content that supplements their school library’s collection (and be able annotate and leave notes about[11]), has a high likelihood of collecting PII.   

But as I say, it will be up to the district’s DPO to make the call.  If that call is: “Heck, yeah, they’ll be getting PII,” the district will then need to follow the law and regulations[12] to ensure the use complies. This means verifying that the contract has the right Ed 2-d requirements, and supplementing its “Bill of Rights” by disclosing the precise requirements the contract imposes on the contractor.  But if that call is: “We checked it out, and nope, no PII heading out the door here,” then nothing further is needed (insofar as ED 2-d is concerned).

While it may seem like I am punting on this answer (“Go see your DPO!”[13]) I can say that the SORA Privacy Policy[14], as published on May 20, 2020, does contain the elements that are consistent with the requirements of ED 2-d.  As but one example, Overdrive has a process for correcting records, which provides:

If you are a teacher or administrator at an educational institution using the school Services, please email privacy@overdrive.com to request the review, correction, and/or removal of a student’s Personal Information, and we will facilitate your access to and correction of such Personal Information promptly upon your request.

The ability to “challenge the records” of a contractor is a requirement of Ed 2-d.[15]  This suggests to me that Overdrive knows SORA will be gathering protected information, and the service is ready to enter into contracts that give the required assurances.  But only a look at the school’s contract for SORA, and its precise definition of PII, can ensure that.

The bottom line?  No matter what the published “Privacy Policy” of SORA says, there is no way to fully confirm a school library’s use of SORA complies with Ed 2-d law and regulations until the district’s designated DPO[16]:

1) Assesses what information will be accessed by or transferred to Rakutan/Overdrive as a result of their district contracting for SORA;

2) Determines if that information is PII as defined by Ed 2-d[17];

3) If it is PII, ensures the contract complies with Ed2-d; and

4)  Takes the steps to publish the “Bill of Rights” supplement as required.[18]

In other words: in Ed 2-d compliance, there should be no guesswork.  By working with the school’s DPO, the guesswork should be entirely removed.

Thanks for a great question!



[1] Not to be confused with New York’s “school district public libraries,” which are chartered libraries operating separately from their associated district.

[6] If you want to read some harsh, some glowing, and some occasionally amusing reviews, check out the SORA review content here: https://play.google.com/store/apps/details?id=com.overdrive.mobile.android.sora&hl=en_US  I particularly enjoyed the brief but scathing review by a person who thought the service was supposed to be a game.

[7] I am not one myself, but I have anime fans in the family.  It rubs off.

[8] Per Regulation 121.8(a), “Each educational agency shall designate a Data Protection Officer to be responsible for the implementation of the policies and procedures required in Education Law §2-d and this Part, and to serve as the point of contact for data security and privacy for the educational agency.”  That’s the “DPO.”

[9] No, that is not a typo in “parents.”  The law left out either possessive apostrophe (“parent’s” or, for the plural possessive “parents’”).  Grammar matters, NY Assembly…grammar matters.

[10] I tried this on several different districts/schools across the state; a few institutions that shall remain nameless seem to have flunked, but admittedly, I didn’t look much harder than a cursory google search—which worked for many of the other institutions searched.

[11] Yes, I watched the SORA demo and paid attention to the additional features, which includes highlighting content and typing in comments.  I guess it beats writing in a book, which, to my husband’s great chagrin, I have been known to do (only to my own books).

[13] This is also critical because the definition of PII may vary slightly from institution from institution.  This is because student PII is based on the definition of “education records” in FERPA, which does allow some variance in “directory information” and other nuances this footnote is too small to cover.

[15] Regulation 121.3(c)(4)

[16] Or designee, of course.

[17]Personally Identifiable Information, as applied to student data, means personally identifiable information as defined in section 99.3 of Title 34 of the Code of 3 Federal Regulations implementing the Family Educational Rights and Privacy Act, 20 U.S.C 1232g, and as applied to teacher and principal data, means personally identifiable information as such term is defined in Education Law §3012-c (10).”

[18] I realize this answer may give DPO’s out there extra work.  I am afraid I can’t apologize, since vigilance about privacy is a beautiful thing.  And hey—job security!

Tags: COVID-19, Emergency Response, School Libraries, Ed Law 2-d, Overdrive, SORA

Topic: Policies for employees returning to work during COVID-19 - 5/21/2020
Public and Association libraries have questions about making policies creating conditions that mus...
Posted: Thursday, May 21, 2020 Permalink

MEMBER QUESTION

Public and Association libraries have questions about making policies creating conditions that must be met for library staff to return to work. Can they set policies that exclude vulnerable employees from being able to return to work? Can they set policies requiring non-vulnerable employees to return to work?

WNYLRC ATTORNEY'S RESPONSE

I had initially considered bundling this question with another submission about temporary actions or policies during COVID-19.  After all, both questions relate to policy, and a big goal of “Ask the Lawyer” is to provide legal information efficiently.

But after drafting that answer, and considering this question further, I did away with that notion.  The member has isolated an incredibly critical concern about employee/employer safety and authority.  It is a question that demands—and deserves—its own consideration.

But before we dive into the legalities, let's consider the practical implications of the member’s question.  Why would an employer want to “exclude vulnerable employees” from the work site? On the flip side, why would an employer want to set policies “requiring” a class of employee termed “non-vulnerable” to return to work?

Near as I can figure, the employer would want to do this to promote safety; a laudable goal.

However, that is not precisely the approach an employer in New York State is empowered to take.

Under both the Americans with Disabilities Act (“ADA”) and the New York Human Rights Law (“HRL”), employers are barred from discriminating against employees on the basis of real or perceived disability. This means that a NY employer who knows—or suspects—an employee might be particularly “vulnerable” (in this case, to COVID-19, but in other cases, due to pregnancy, or other medical conditions), is barred from simply labeling that employee “vulnerable” and taking steps to limit or change the terms of their employment on the basis of that conclusion. 

Rather, disability law is set up to empower employees to identify their needs, and then—under the most confidential circumstances possible—work with their employer to receive reasonable accommodations in consideration of those needs.

For example, a person whose medical history means that they might be more vulnerable to COVID-19 would work with their medical provider to provide documentation setting forth the risks and requesting a reasonable accommodation on the basis of those risks.

Employers are always welcome to let employees know the ways in which they may request accommodations. For instance, as libraries, museums, and archives consider limited or full reopening, employers can transmit those plans to their employees, and invite them to submit any request for accommodations based on the anticipated additional exposure to on-site visitors.

Think of it in the same way your institution might think of planning a large event that would invite the maximum number of people possible to your library or a rented venue. When planning for an event that will attract a large number of people, almost every institution will consider the need to accommodate people who use mobility devices. They might not contact those people in advance, even if they know they're coming…rather, the event will be planned with those accommodations in mind.

A good example of this, of relevance to the current COVID-19 crisis, is an employee with a respiratory disability.  As we know, people who have had respiratory illnesses in the past may be especially vulnerable to COVID-19 now.  These are people who may request accommodations—potentially including the ability to work off-site—based on a disability (a good list of accommodations for respiratory issues can be found here, on the Job Accommodation Network).

So, with all that being said, the answer to the member’s questions (Can they set policies that exclude vulnerable employees from being able to return to work? Can they set policies requiring non-vulnerable employees to return to work?) is: NOT AS SUCH.

However.

Employers can most certainly, when otherwise allowed by law, policy, contract, and Executive Order, require employees to return to work.  After that…

Once an employer is able/decides to re-open, in addition to any re-opening conditions, the employer must consider any requests for reasonable accommodations.  This could absolutely include modifications for those whose disabilities render them vulnerable to COVID-19.  The employer can even generally pre-plan to offer those modifications.  Or they can make working from home, or working on-site, optional (if the work can, in the sole determination of the employer, still be done).  But what they can’t do is pre-sort their employees by “vulnerability.”

There is one final critical point to make here, at this time (May 19, 2020).

Institutions re-opening as part of “NY Forward,” may be required to monitor the health of their employees in a way that typically would seem intrusive, and in some contexts, would even be illegal.

For example, here is a sample of the monitoring required under NY Forward, taken from a sample safety plan.  NOTE: this is taken from the NYForward’s Phase One Retail Summary, and is provided as an example, only:

Employees who are sick should stay home or return home, if they become ill at work.

[Employers must] [i]mplement mandatory health screening assessment (e.g. questionnaire, temperature check) before employees begin work each day and for essential visitors (but not customers), asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and/or (3) close contact with confirmed or suspected COVID-19 case in past 14 days.

Assessment responses must be reviewed every day and such review must be documented.

Employees who present with COVID-19 symptoms should be sent home to contact their health care provider for medical assessment and COVID-19 testing. If tested positive, employee may only return completing a 14-day quarantine. Employees who present with no symptoms but have tested positive in past 14 days may only return to work after completing a 14-day quarantine.

As stated, this is the procedure for Phase 1 re-opening of limited retail operations.  When will libraries subject to closure in NY be able to re-open under NY Forward, and under what terms?  As I write this, the New York Library Association, NYLA, has this on their COVID-19 page, which states[1]:

With input from our partners from the Public Library System Directors Organization (PULISDO), NYLA has been advocating for libraries to be permissively included in phase two.  This would allow libraries to be a phased re-opening processed, to be determined at the local level, as early as when their region enters Phase Two.  The decision on when, as well as the steps and procedures for re-opening, are best determined locally, and in conjunction with the local library system and county Department of Health.

This is a critical service to association and public libraries by NYLA, and every board and director should be monitoring this site for updates.

Of course, some libraries may have determined that the current workforce restrictions don’t apply to them at all (that they are exempt right along with school districts and local governments).  And it is possible some libraries and museums, affiliated with larger institutions, will not be able to open until their region hits “Phase Four” (covering educational institutions).  And it may be that by the point libraries are given the go-ahead, the emergency has abated to the point where monitoring of employees won’t be required. 

But any library contemplating opening, in addition to being ready to consider ADA accommodations for those more vulnerable to COVID-19, needs to be considering these possible employee monitoring requirements, as well as the need to adopt any NY Forward-required Safety Plan, or similar documentation showing they are taking defined, affirmative steps to protect employee and public safety.

Public and association libraries developing the policies they need to re-open have a large, complex task before them.  Thank you for a question that explores a critical consideration of that work.



[1] Just to emphasize: NYLA is a critical resource at this time and all libraries should be monitoring this page daily for updates.

Tags: COVID-19, Emergency Response, Employee Rights, Public Libraries, Reopening policies, Safety, ADA, HRL

Topic: Oral history transcriptions and the ADA - 5/19/2020
When publishing Oral Histories to a Digital Exhibit, such as Omeka, are we required by A...
Posted: Tuesday, May 19, 2020 Permalink

MEMBER QUESTION

When publishing Oral Histories to a Digital Exhibit, such as Omeka, are we required by ADA to include a full transcription of the interview in the metadata? Is a Time Summary sufficient?

WNYLRC ATTORNEY'S RESPONSE

Ugh.

Not only is the answer to this “maybe,” but I am afraid the answer is actually “maybe maybe.”  And it might even have to be “Maybe maybe maybe, maybe.”  But hang in there, because I think I can still give you some solid information in reply! (Maybe.)

Oral history projects—exhibits and collections using audio and video recordings to tell a story in participants’ own words--provide invaluable access into the culture and experience of particular people, at a particular place, during a particular time.  Using direct representation, with only the mediation of the recording, they can show emotion, capture dialect, and put a subject in control of their own story.[1]

Hosting such stories online is a great way to bring unique perspectives and individual experiences to a broad audience who might not be able to access a physical museum.  But as the member’s question points out, not everyone has equal access to audio or audio-visual online content.  So what are the precise ADA obligations pertaining to an oral history exhibit’s audio components?

As the word “maybe” implies, there is no bright-line answer.

Libraries, museums and archives collecting and curating oral histories all have different obligations under the Americans with Disabilities Act.  Some institutions will fall under the obligations governing government entities. Others will fall under the law and regulations governing places of public accommodation. Still others will have accessibility considerations arising from acceptance of federal grant money, or operation as an educational institution or health facility.

And finally, some institutions may develop an oral history exhibit along with a community partner, splitting duties regarding collection of stories, arrangement of information, construction of the on-line exhibit’s functionality and web presence, and ongoing hosting.  And any one of those split or shared duties, regarding audio, could have implications for access under the ADA.

But while there is no bright-line answer, there is some great guidance out there on this topic, and if that guidance is followed as closely as possible, it will not only reduce the risk of an ADA violation, but perhaps also enhance an oral history exhibit.

To design an oral history project that will have a high likelihood of complying with the ADA, the project developers have to be thinking about access from the start.  This means, before the project budget is fully allocated, before the contracts are awarded, before the online platform for a project is selected, or before any contributor terms are settled, access for those with a disability has to be considered up-front.

Fortunately, pre-planning and clear methodology are the hallmarks of all serious oral history projects.  This is due to the great professionalism of those who are committed to this medium, who have developed an array of ethics, legal considerations, and guidelines for such projects.

Any member considering an oral history project should check out the excellent guidance at https://www.oralhistory.org/?s=ethical+guidelines (the statement of ethics developed by the Oral History Association) as well as their institution’s own ethics policies and guidelines.  Any agreement with a collaborator or contributor should also reference the ethics/access criteria for both parties, as well as for a particular project.

For compliance with the ADA, what are those guidelines?  There are any number of them, but I’ll go with what I consider the Gold Standard: The US Department of Justice, which investigates alleged violations of the ADA, guides web developers to the World Wide Web Consortium’s (“W3W”) Web Accessibility Initiative (WAI), which sets forth clearly developed standards for web content accessibility.

What does WAI say about the issue of audio content?  A lot.  Further, what the WAI has to say is so well-developed and nuanced—addressing just about every permutation you can think of (speaker reading from script, spontaneous speech with one person, spontaneous conversation, both audio-only, and audio-visual)—that the best thing I can do is send you to their guidelines:

https://www.w3.org/WAI/WCAG21/Understanding/audio-only-and-video-only-prerecorded

As you’ll see in the “Standards,” just as the member suggests, sometimes a textual timeline might be sufficient.  Other times, a transcript of the complete audio content should be available.  And while this information can be part of the metadata, the manner in which the exhibit interacts with the user’s browser will be just as critical (for oral history exhibit developers who are actually developing the front end of an exhibit, here is what the USDOJ looks for : https://www.justice.gov/crt/web-page-accessibility-checklist1).

To use the member’s specific example, there may be times when simply a timeline of the information is sufficient.  If, however, the way the person is describing the events, or the particular language or dialect they are using is part of the value of the exhibit, the content should be fully transcribed.  The standards used to make that call should be part of the design of the project.  For contributors sending an exhibit in to larger work, the host should be the one to set the criteria. 

Now: I appreciate that not every oral history project, or every institution undertaking one, will have the budget or professional support to create W3W-informed access content.  And while transcription gets easier and faster every day, not every project will have the capacity or need to use that, either.

Some oral history projects are very small.  Some projects involve simply wanting to record different experiences of the people in a town, enjoying their Public Library, and put them on the library website.[2] For those projects, the more modest resources and needs of the Town will govern the ADA obligations (unless there are strict conditions under grant money).  But for larger projects connected to institutions that can be seen as having an obligation to provide such transcripts as part of a large oral project, particularly if public funding is involved, it is best to design the project to conform to agreed upon ethics, and W3W’s standards for Accessibility.

Again, this requires consideration at the front end of the project, and needs to be built into the budget and the procurement.  It also needs to be built into any agreements for outside contributors (which the question hints at). 

As the W3W guidelines point out, this will not only ensure the accessibility of your project, but will help people and institutions who do not speak the language of the person in the audio or audiovisual content to use your oral history project in their own research. The fact that this will also give you a better project is an incidental benefit of designing for inclusion!

Thanks for a great question.



[1] Through the magic of editing selective footage, an oral history project can also directly subvert these goals, but let’s assume anyone reading this is using their powers for good.

[2] Some would debate if this would be called an “oral history” project.  Out in the field, I have encountered many uses of that term, and some of them are very informal, or minimally funded, so I am including that as an example.

Tags: Accessibility, ADA, Digital Exhibits, Omeka, Oral Histories, W3W, WAI

Topic: Phone recordings of stories and copyright - 5/12/2020
If staff record themselves through our phone system reading published short stories and poems that...
Posted: Tuesday, May 12, 2020 Permalink

MEMBER QUESTION

If staff record themselves through our phone system reading published short stories and poems that are then made accessible to the public through the same phone system, are there issues with copyright? Various public libraries nationwide offer dial a story services, and my school district public library is looking to offer this too. Some of our patrons do not have access to technology and internet, so we want to offer this no frills service during our COVID-19 closure, and beyond. The recordings would likely be 3 to 7 minutes in length and offered a couple of times a week.

WNYLRC ATTORNEY'S RESPONSE

For this answer, we are again joined by Jessica Keltz, associate attorney at the Law Office of Stephanie Adams, PLLC.

As we noted in our March 24 Ask The Lawyer answer (https://www.wnylrc.org/ask-the-lawyer/raqs/123), copyright law does still apply despite the pandemic and the many needs it has created for alternative outlets, resources and programming.

For a public library, unless the service is an adaptation under the Americans with Disabilities Act, any recording of a copyrighted work needs to be made with the permission of the rights holder. Under fair use doctrine, limited excerpts can be read, interspersed with commentary. But a full work presented alone in its entirety or in substantial excerpts, without the permission of the rights holder, may not be. This doctrine remains in effect.

One solution to consider is reading either works that are in the public domain, and/or works whose rights holders have given permission for this type of use during the pandemic or otherwise. Readers may have heard about LeVar Burton Reads, a pandemic podcast from the iconic Reading Rainbow host, in which Burton encountered this exact struggle and was given permission by noted authors including Neil Gaiman and Jason Reynolds. While most local libraries will not have Burton’s star-studded cast of Twitter followers from which to draw partnerships, they may find folks in their own communities who are happy to freely share their own works.

A list of ideas for children’s books in the public domain is here: https://concretecomputing.com/thoughts/list-of-public-domain-free-books-for-kids-by-grade-level/

Project Gutenberg is also often recommended for searching for works in the public domain: http://www.gutenberg.org/

Tags: Copyright, COVID-19, Emergency Response, Story time

Topic: Emergency Policy Manual - 5/11/2020
As we look to re-opening our public libraries with abridged services, we want to limit the chances...
Posted: Monday, May 11, 2020 Permalink

MEMBER QUESTION

As we look to re-opening our public libraries with abridged services, we want to limit the chances of legal challenge from organizations who seek to make a statement about government response to COVID-19 and social distancing measures. We are considering a recommendation to have a brief policy manual addendum with policy adjustments that supersede the policy manual, have a short review and renew period (aligned with the library board meeting schedule), and are triggered by an objective, external to the library, event. What elements would we need to include in this addendum to make it legally enforceable, while not re-writing the entire policy manual?

Take, for instance, a library's meeting room policy. For a library with a 2,000 sq ft community room, with a normal occupancy of 250 persons and a seated occupancy of 150 persons (fake numbers), in which the board meets every other month.
- Initial addendum policy would have a line which said "Meeting Room: The meeting room is closed to all groups. Policy approved April 27, 2020. Will expire June 26, 2020."
- At the June board meeting the board passed "Meeting Room: The meeting room will open for library sponsored programming July 1st. Registration will be required and limited to 20 persons to follow current social distancing guidelines. Policy approved June 26, 2020. Will expire August 27, 2020."

And so on.

What are recommendations for the pre-amble of such an addendum? What should we make sure to include in the board motion to enact the emergency policy addendum such that it supersedes the standard manual?

WNYLRC ATTORNEY'S RESPONSE

This answer is being composed on May 9, 2020.  New York is still fully on PAUSE, but the Governor has divided the State into ten districts who must hit seven defined metrics to begin rolling back various restrictions.[1]  Careful prognosticators are cautioning that what is rolled back can also be re-implemented, so caution and flexibility are the watchwords of the times.

In this context, many libraries are considering a phased resumption or extension of operations, and to do so, may need to adjust many of their standing policies.

As the member’s question highlights, the stakes for such adjustments can be high.  The greatest risk in taking emergency and temporary measures are that: 1) they are not legal; 2) they create legal but mission-averse collateral consequences[2]; 3) they are legal and perfectly mission-aligned, but still just make people mad.

Right now, libraries don’t have the luxury of time to fully mitigate these risks.  But collecting, assessing, and documenting some steps, a library can do its best to avoid them.

Here is how to do that:

Step 1: Inventory your board’s authority and obligations

Library leadership seeking to temporarily adjust library policy to address COVID-19 must first assemble the following:

  • The library’s charter
  • The library’s bylaws
  • The library’s policies
  • Any collective bargaining agreement (“CBA”)
  • Any employment contracts
  • Any judicial orders, settlement terms binding your library[3]
  • Any COVID-19-related resolutions
  • Current budget
  • The 202-series Executive Orders posted at https://www.governor.ny.gov/executiveorders

Many libraries will already have these assembled from previous such exercises.

 

Step 2: Inventory the specific policies your library needs to adjust

This “inventory” should include a citation to each policy your library needs to adjust, the basis of the need, any legal compliance considerations, what the precise terms of the proposed temporary change are, and, as the member writes, the reversion trigger of duration of the change.

This sounds painstaking and arduous, and it will be.  Fortunately, when it comes to the painstaking and arduous act of organizing information, libraries have a home team advantage. 

And don’t worry, in the next step I give you a chart to sort it all out.

 

Step 3: Identify what’s needed: alteration of the policy, or complete suspension?

In some cases, a policy will just need some small, temporary alterations to continue serving the requirements of the law and the needs of the library and its community.  However, some policies are so complex, or so rife with temporarily unsafe practices, they will simply need to be suspended.[4]

Here is a chart template that sets the “inventory” categories of Step 2, with examples the two types of adjustments:

1. Policy or obligation to adjust

2.  Basis of need to adjust

3.  Law or policy governing change

4.  Proposed

Adjusted provision

5.  Reversion trigger or duration

 

Example: Policy temporarily altered

 

Policy B-2: Board Meetings

 

Limits on large gatherings and social distancing requirements requires limiting in-person contact

 

Board meetings are controlled by the Education Law Section 260 and Article 7 of the Public Officers’ Law (“Open Meetings Law”), but are temporarily governed by Executive Order 202.12.

 

As allowed by the EO 202.12, the Board shall meet via teleconference, and the audio shall be simultaneously available at a link on the library’s website, as well as recorded and transcribed.

This adjustment shall be in effect until the expiration of the terms of EO 202.12.

 

Example: Policy temporarily suspended

 

Meeting Room Policy allowing use on a reservation basis.

 

The Library wants to use the Meeting Room but must suspend community use to observe current social distancing requirements and health-oriented practices.

 

 

Executive Order # and #, as well as the usual laws governing use of library property.

 

To ensure observance of [cite EOs] the Meeting Room policy is suspended until two weeks after the last remaining restriction is lifted.

 

 

To allow time for cleaning and operational adjustment, the regular policy will go back into effect two weeks after the last remaining restriction is lifted.

 

Step 4: Contrast the adjustments with your library’s obligations

This is really a second look at the third column- “Law or policy governing change.” 

It encourages your leadership—and ideally, your lawyer—to take a deep look at any standing legal obligations, and make sure your temporary adjustment doesn’t run afoul of them.

For instance, in the Meeting Room Policy example, let’s say that, per the policy, the library had a standing, written agreement for the room to be used by a writer’s group on a weekly basis.  This might require an extra step in your adjustment to the policy, with some targeted outreach to cancel what might be regarded by the group as a written contract.[5]

SPECIAL NOTE FOR LIBRARIES WITH UNIONS: Step 4 is especially critical if there is a union contract involved.  Throughout this time of COVID-19 response, I have seen many examples of situations where a library’s prospective plans have been impacted by CBA provisions for emergency closure or other obligations. I have written about that at length elsewhere,[6] so for now, will simply say: in all of this a library’s union should be an ally and critical stakeholder promoting employee well-being, and hopefully the need for any changes to routine policy and procedure can be approached in that spirit. 

 

Step 5:  Diplomacy Check

Technically, this is not a “legal” step, but I can say that in many ways this step is the most important part of avoiding needless legal threats and hostility.

Step 5 involves taking yet another look at the chart, and adding other two columns, covering: “Who will be impacted by this policy change?” and “How can we roll out the change to lessen any negative impact?”[7]

Here is what these columns look like in my imaginary examples:

6.  Who will be impacted by this policy change?

7.  How can we roll out the change to lessen any negative effects?

Board Meeting Policy Example:

 

 

Everyone who relies on library board meetings as a chance to scour the budget and yell at the treasurer about how much was spent on new shelving, even though the purchase followed every bidding step required by state procurement rules.[8]

 

The library will put up a sign on the front door, and in the usual places where the library sends formal notices about the meetings, saying: 

 

As you know, our board is meeting via telephone and working to keep our library ready to serve the community!  You can hear our meetings at [link] or get a recording at [way].  We’ll have transcripts ready a month after the meeting.  Please keep in touch by sending your comments to [NAME] at [ADDRESS].”

 

Meeting Room Policy Example:

 

People who really, really just want to see their writing group.

 

 

The director will ask [STAFF] to outreach to the regular groups, to see if they need assistance finding alternate resources while we wait to welcome them back.

 

 

And with all that legwork done, we can now answer the member’s core questions:

Question 1: What elements would we need to include in this addendum to make it legally enforceable, while not re-writing the entire policy manual?
The elements would be 1) a preamble setting forth the board’s authority, goal and process for the temporary changes; 2) a list identifying the policies that are temporarily suspended or temporarily altered; and 3) an articulation of the replacement policy or temporary changes.

 

Question 2: What are recommendations for the preamble of such an addendum?

Here is a template for the preamble:

The [NAME] Library was chartered in [YEAR] by the New York Board of Regents, and operates under the authority of that Charter, the New York Education and Not-for-Profit corporation law.  In accordance with that authority and in compliance with the Library’s bylaws [OPTIONAL IF UNION AGREEMENT OR OTHER CONTRACTS ALSO GOVERN: and all other applicable obligating documents], to promote the mission of the library, the safety of all it serves and employs, and the needs of the community at this time, the following temporary changes to the following policies are made:

And here is how you link it to the other elements:

[INSERT chart with only columns 1, 4, and 5].

 

Question 3: What should we make sure to include in the board motion to enact the emergency policy addendum such that it supersedes the standard manual?

Here is template language for a board motion:

WHEREAS the State of New York is currently subject to Executive Orders governing the State’s response to the COVID-19 pandemic; and

WHEREAS the [NAME] Library’s mission is to [INSERT]; and

WHEREAS some of the Executive Orders impact the ability of the Library to fulfill its mission while abiding by its usual policies and procedures; and

[INSERT ONLY IF APPLICABLE] WHEREAS the Library is also subject to the terms of a collective bargaining agreement signed on DATE: and

[INSERT ONLY IF APPLICABLE] WHEREAS the Library is also subject to [variable]; and

WHEREAS the Library has developed temporary adjustments to its usual policies and procedures, with all due consideration of its standing obligations, to aid itself in operating safely and in compliance with the orders, and in period of recovery to follow;

BE IT RESOLVED that the following temporary changes, for the corresponding durations sets forth below, are enacted, effective immediately:

[insert chart with columns 1, 4, and 5]

AND BE IT FURTHER RESOLVED that the full chart setting forth these temporary adjustments shall be posted on the Library’s usual place for posting policies no later than [DATE]; and

AND BE IT FURTHER RESOLVED that the following measures to positively communicate these temporary adjustments shall be taken:

[INSERT measures identified in column 7].

 

Final thoughts

When using these steps, it will be important to remember that an individual library’s response will be informed by not only their unique documents and priorities, but which of New York’s ten regions[9] they are in.  This means that what works for one library won’t necessarily work for a similar library in the next county over.  Nor should one library be judged by what is being done at another.

And finally—and I have mentioned this in several columns lately, but I will mention it again—attorneys throughout New York State are stepping up to the pro bono plate these days.  Now is the time to see if your library can enlist an attorney familiar with municipal, education, employment law, even if it is just to take a fresh, hard look at your final product.  If you can’t find that attorney, you can ask for a referral from your local bar association.

By assembling the documents listed in this answer, and identifying your priorities and concerns in the chart, you’ll help that attorney help your library.  In addition, I welcome questions from local attorneys who are helping their local libraries pro bono; they can reach me at adams@losapllc.com, or my library paralegal Jill at libraryspecialist@losapllc.com.

As the member’s excellent question suggests, the more unified and well-developed the response of libraries can be, the more we can avoid challenges, and focus libraries’ energy on the business of serving the public.  Sadly, the need for that energy will be great.

Thank you for giving me the opportunity to answer this very important question. 



[2] Like a writers’ group saying: “Forget it.  We’ll just meet at Starbuck’s.”

[3] For instance, if a patron brought a legal action under ADA, and the library reached a compromise it is legally bound to follow.  Most libraries will not be subject to any such restrictions, but I want to ensure they aren’t forgotten.

[4] In my experience, unless the law mandates that you have one (for instance, certain libraries must, under the Education law, have an internet access policy) suspending a policy is also the way to avoid inviting arguments with people who will try and word-smith your temporary adjustments.  As a lawyer, I do enjoy a good quibble, but there’s a time and place for it, and debating when a writer’s group can get back in the community room might not be the best use of energy right now.

[5] It really sounds like I am picking on this writer’s group!  I’m not, we’re a fan of writer’s groups in my law firm (they produce writers, who are part of our client base).  I think it’s just that in my mind everyone is, at this mid-May point, is very eager to resume normal social activity.  I know I am.  Meeting on Zoom is like eating low-fat olive oil.

[7] This is not a legal tactic tested on the bar exam.  I learned this from my mentors at Niagara University, where I served as General Counsel for ten years.  When legal strategy was proposed, their first thoughts were always about how it would hit the very real people involved. 

[8] One of my favorite quotes about this phenomenon is from Parks and Recreation: “So what I hear when I am being yelled at is people caring loudly at me.”

[9] My poor staff.  They just got used to New York being divided into nine library council districts, and 23 public library system districts.   Val, our keeper of the “library map,” should be getting danger pay.

Tags: COVID-19, Emergency Response, Meeting Room Policy, Policy

Topic: New Governor Proclamation and Elections - 5/7/2020
The Gov has put out his new proclamation in regards to votes. At [our school district public libra...
Posted: Thursday, May 7, 2020 Permalink

MEMBER QUESTION

The Gov has put out his new proclamation in regards to votes. At [our school district public library] our vote has always been separate from the school vote but the gov's doc reads that our only option is to have the vote with the school or have it in Sept. Sept would not work since our fiscal year is July to June.

Also, a couple of us are not sure about the trustee election. Do we not hold trustee election since we do not currently have any petitions filed for the open seat, if that is the case can the board appoint until the next election[?]

WNYLRC ATTORNEY'S RESPONSE

As a prelude, readers may want to take a look at an earlier COVID-19-era “Ask the Lawyer” about library elections postposed per Executive Order 202.12, which ends with this promise:

If and when we get an update or “further directives,” we’ll post any update to this answer.”

As you can see, it took a few weeks, but we got those “further directives” on Friday, May 1, 2020,[1] in Executive Order 202.26.

Libraries don’t miss much.  On Monday[2] May 4th, we also got the above follow-up question.

So here is the promised update, and my answer to a conundrum like the one this “further direction” creates for the asking library.

But first…

If there is one thing providing this service to hundreds of libraries has taught me, it’s that running a library is hard.  And running a public library comes with an overlay of regulations and community politics that makes a hard job harder.

So for those libraries out there finding that this issue of rescheduled budgets and elections is making a hard job harder, I say: yes, it is.  The strain on your communities, staff, and leadership is growing every day, and it’s important to acknowledge that. 

Sometime, in the pressure of the moment, it can be hard to say that.  So, for libraries seeking a default way to unite and raise the spirits of your staff, leadership, and allies in information and community service, I suggest the following “2020 NY Libraries Chanty.”[3] Gather your board,[4] staff, and/or supporters on a Zoom call, or a teleconference, have them all face the direction of the library (this is important, even if you can’t see each other!), and recite:

It’s 2020. 

The books are still here. 

People still need us. 

These challenges are hard,

but we got this.

 

You can also add your own custom lyrics, like:

Located in a sunny glen

New Hartford Library faces ahead

Times are hard, the Town is strong

We’ll do yoga[5] here again ere long.

 

The importance of simple, affirmative, repeated affirmations like a chanty--or simply repeating a mission statement at the beginning and end of a meeting--can’t be over-stated--especially at this time. 

Further, since the notion of “normal” is starting to shift, it is vital that the slowly materializing “new normal” be infused with a united vision of a strong, community-focused, mission-forward library. 

This can be easy to overlook in the midst of emergency budget meetings and communicating about emergency closure.  A simple song or phrase, regularly repeated, can be a key component in buoying spirits and plotting a course for the future.

(And if you do craft a custom message, have a contest, because I bet your local youth can come up with better verses than I can.)

Okay, with the light verse out of the way, here is the hard stuff:

 

Timing of a School District Library Election

As you may recall, Executive Order 202.12 stated:

Any school board, library board, or village election scheduled to take place in April or May of 2020 is hereby postponed until at least June 1, 2020, and subject to further directive as to the timing, location or manner of voting for such elections.

So what does 202.26’s “further directive” do?  First, it expands on the impacted elections (seemingly including ALL of them, not just those set for May or June, as in 202.12), and as the member writes, seems to give only two timing options for conducting your votes.

This timing is found near the end of the Order, which states through May 31, 2020:

Any district or special district, including, but not limited to fire, library, sewer, or water, that conducts an election and/or budget vote shall be rescheduled to September 15, 2020 and collection of signatures for nominating petitions is hereby suspended until further notice, subject to a process determined by a future Executive Order; provided however, a library district may conduct an election on June 9, 2020 pursuant to this Executive Order if such election is managed by a school district.

However, a careful reading of the context of above-excerpted language[6] shows that those particular bullet of 202.26 only applies to “through May 31,” and that it pertains to “any district or special district” library.

In the meantime, earlier in this voluminous Executive Order (nine bullets deep), it states:

[P]ublic libraries established and supported by a school district [may] re-notice an election noticed pursuant to this section. Such election and/or budget vote shall be conducted via absentee ballot in conjunction with the school district’s rescheduled absentee ballot process or independently using the guidelines created for the school district’s absentee ballot process. Such a vote may be managed by the school district or the library, at the library’s request.

If you had eight cups of coffee the day you read it, you may recall that in the answer discussing EO 202.12, we discussed that the EO did not impact all school district library elections, since by law, those have to happen before July 1, and 202.12 only covered elections through May.

This detail now comes roaring back into relief as we dissect EO 202.26.  Upon a close analysis, it can be seen that this Order gives school district public libraries more latitude than district and special district libraries, in paragraphs such as:

Sections 259 and 260 of the Education Law are hereby modified for any library election held on or before July 1, 2020, to eliminate any requirement for an application to access an absentee ballot, and each such eligible voter shall be mailed an absentee ballot with a postage paid return envelope.

If school district public library votes limited to the June 9/September 15 options open to district and special district libraries, this bullet about “any” election before July 1 would be unnecessary.

What does this mean?  Well, as the Order says:

Such election and/or budget vote shall be conducted via absentee ballot in conjunction with the school district’s rescheduled absentee ballot process or independently using the guidelines created for the school district’s absentee ballot process.

Remember, both EO 202.12 and 202.26 modify Section 260 of the Education law, which (among other things) creates special rules for election and votes pertaining to school district public libraries. 

Section 260 provides:

7. The board of trustees of a public library established and supported by a school district shall, in addition to powers conferred by this or any other chapter, be authorized in its discretion to call, give notice of and conduct a special district meeting for the purpose of electing library trustees and of submitting initially a resolution in accordance with the provisions of subdivision one of section two hundred fifty-nine of this chapter. Such meeting shall be held prior to the first day of July but subsequent to the first day of April. Should the board of trustees of the library determine, in its discretion, not to notice and conduct such a meeting, then the election and budget vote will be noticed and conducted by the board of education of the school district as part of its annual meeting.

EO 202.12 did postpone any elections set for April or May (not June!), but left many details about petitions, notice, and voting for “further directive.” 

EO 202.26 now gives those further directions, and modifies Section 206 further to require a vote to happen either

…in conjunction with the school district’s rescheduled absentee ballot process or independently using the guidelines created for the school district’s absentee ballot process.

Further, the EO honors the autonomy of a school district public library by providing:

Such a vote may be managed by the school district or the library, at the library’s request.

What does this mean for a school district public library? 

First, they must work with their sponsoring district to obtain a copy of the guidelines developed for the absentee vote.

Second, they must decide if they have the capacity to manage the vote, or should request the district to manage it.

Third, if the library can manage it independently, they must abide by Education Law 206 and properly notice (or, as authorized, re-notice) and conduct the election and budget vote, per the guidelines adopted by their district, before July 1.

I see no provisions in Executive Order 202.26 limiting school district public library elections and budget votes to the June 9 or 15th dates. 

This might seem to be in contrast to the plain language of EO 202.26’s fourth-from-last bullet, which states: “provided however, a library district may conduct an election on June 9, 2020 pursuant to this Executive Order if such election is managed by a school district.”

However, that fourth-from-last bullet does not apply to school district public libraries—it applies to “library districts.”  Any other interpretation goes expressly against language in the ninth bullet stating that school district public libraries are expressly confirmed as having the authority to run their own election.

So unless we get an even further directive, or the state realizes they created an unintentional hole in the process here, it is clear that school district public libraries still have the authority to conduct their elections before July 1st…so long as they abide by the guidelines developed by their district for absentee voting.

I take this position on May 5, 2020, with a great deal of confidence, but must still acknowledge that I am out on a limb. These Executive Orders are constantly being revised and clarified by subsequent Executive Orders (202.26 “clarifies” 202.23’s provision about absentee ballots in its final bullet).  So while I believe this interpretation makes sense both under the law and within the borders of the document itself, school district public libraries scheduling, noticing and conducting their elections should conduct a clear, explicit, documented discussion with their sponsoring districts to make sure they agree that this is the way to proceed.

And we should all keep our eyes open for further clarification!

 

Trustee Election

Executive Order 202.26 also contemplates that getting candidates’ petitions over the finish line might be a little tough this year, so in that same “ninth bullet” devoted to school district public libraries, it provides:

Furthermore, the same provisions that are made for a school board trustee’s petition shall apply to a library board trustee’s petition.

These “provisions” for trustees’ petitions are in bullets[7] seven and eight:

  • Sections 2018, 2032, and 2608 of the Education Law to the extent necessary to allow candidates be listed on ballots alphabetically, and that ballots for small city school districts shall be set 30 days before the election;
  • Sections 2018 and 2608 of the Education Law to the extent necessary to eliminate any minimum threshold of signatures required, provided, however, an individual must meet any other requirements necessary to be placed on the ballot, including any applicable residency and age requirements;

The member asks “since we do not currently have any petitions filed for the open seat” should they simply appoint trustees, per their bylaws, until the next election?

These are incredibly unique (and hopefully rare!) circumstances, but remember, even at this unusual time, Section 206 (7), except as modified by Executive Order, governs school district public library elections.

That law specifically states:

Should the board of trustees of the library determine, in its discretion, not to notice and conduct such a meeting, then the election and budget vote will be noticed and conducted by the board of education of the school district as part of its annual meeting. [emphasis added]

This does not appear to be an “optional” process, and no active EO has changed it.  Therefore, if a school district public library does not conduct required election, the district must. 

Resorting to a bylaws appointment or deciding not to conduct the election is not an option.

Given all that, and considering the unique circumstances for 2020—incuding the newly relaxed requirements regarding trustee petitions—I advise that before not proceeding with an election process (and thus triggering mandated school district management of one), the board coordinate the quest for trustees with its overall response to the current situation. 

In other words, just like with all trustee recruiting, this is an opportunity to promote the mission of the library, and to recruit qualified people to help in the times ahead.

Here is a template recruitment notice for such an effort, referencing the current relevant Executive Orders, which could be modified for your library, and pushed out in both local media and on social media as well as the library's website:

Greetings from the [NAME] Library. 2020 has been an extraordinary year. In addition to changing our life in many ways, it has impacted the ability of potential trustees to petition to serve on the library's board of trustees (see Governor’s Executive Order 202.12).

Trustees play a vital role in our library: defining library policy, overseeing the budget, and deciding the library’s strategic directions.

The [NAME] Library’s current election, which due to emergency circumstances and per Executive Order 202.26 will be conducted via mail-in ballot, is scheduled for a [DATE]. If you are interested in serving as a library trustee, executive order 202.26 has changed the requirements, and now no signatures are required to put your name on the ballot.

If you are interested in submitting your name for election to this position , please [INSERT LOCAL GUIDELINES].

Service on the [NAME[] Library will be essential as our community recovers from the restrictions caused by COVID-19, and the years ahead. To help us serve that need, we seek candidates who know the community, who [INSERT BYLAWS’ TRUSTEE CRITERIA] and who believe that access to information and shared services will be a vital part of our recovery and the years ahead.

A final word: just like in the last answer regarding postponed elections, I must emphasize: if you can, now is the time for your school district public library to find a local lawyer to assist with your process, just to have back-up during uncertain times. 

I am always happy to get calls from local attorneys to strategize on these issues; sometimes local circumstances can throw a curve ball at an otherwise straightforward situation…and this situation is anything but straightforward!

School district public libraries: I wish you good luck in your recruitment, your elections, and your budget votes. 



[1] A day when many of us learned our children would not be return to school for the 2020 Spring semester.  So…not quite a “day that will live in infamy,” but definitely the day my law office receptionist got a new “duty as assigned”: remote kindergarten substitute teacher.

[2] May the fourth be with you.  Especially now.

[3] A “chanty” is a song sung (usually at sea) by people doing hard work together. Don’t worry, first amendment fans, this one is completely secular!

[4] If you gather the board this way, send a notice, since the notice provisions of the Education Law and the Open Meetings Law are still in effect.

[5] My Mom’s gentle yoga class at New Hartford Town Library has been on hold.

[6] Which, if you’re reading along with the Order, is four bullets from the end…jeez, I wish they’d number these things…

[7] “Bullet” sounds so punchy.

Tags: COVID-19, Elections, Emergency Response, Executive Order

Topic: Mask and PPE library policies - 5/5/2020
Can a library prevent someone from coming into the library if they refuse to wear a mask? I know t...
Posted: Tuesday, May 5, 2020 Permalink

MEMBER QUESTION

Can a library prevent someone from coming into the library if they refuse to wear a mask? I know that library behavior policies would need to be broadened to include mask-wearing. Are libraries required to provide a mask for the public - and what if a person wears the mask improperly - can they be asked to leave?

WNYLRC ATTORNEY'S RESPONSE

New York has numerous “types” of libraries, serving a diverse array of locations.  All of them are empowered to take the steps needed to serve their communities safely.

For libraries who want to do just that—knowing it will be a vital part of their community’s response and recovery—here is how to enact and enforce the use of appropriate personal protective equipment (PPE).

Step 1

Assess your library’s status under the current Executive Orders.  Does your library regard itself as exempt from the Orders due to status as a governmental entity (like a school)?[1]  Or has your library been operating under compliance with the 100% workforce reduction…and thus, subject to further such restrictions (or them being eased)?

If your library is subject to the Executive Orders, linking your policy to future Orders is a good idea.  That’s why you’ll see that as a variable in the template, below.  And if your library concluded it didn’t need to follow them, well, that part doesn’t apply to you.  

 

Step 2

Assess what operations your library will resume.  Will you resume lending books, but restrict reading rooms?  Will you encourage curbside pickup, or perhaps lower your building capacity to ensure social distancing?

This step assumes that the return to full services might be incremental—but with the resumption of services tailored to the needs of your community.  It is where the customization kicks in.

 

Step 3

Once your library has confirmed which activities will resume, select the appropriate safety protocols for those operations.

This is why this will not be an exercise in one-size fits all.  Some libraries may decide to expand reading rooms or acquire additional electronic devices to loan.  Some will need masks, some may need gloves, and others might adopt different safety measures.  What’s important is that the measures be tailored to the activity.

As a starting place[2] for that selection, I really like this function-centered guidance from OSHA:

https://www.osha.gov/SLTC/covid-19/controlprevention.html#interim

NOTE on this guidance from OSHA: While the common thinking might be that libraries are primarily “customer service” environments (as the term is used by OSHA), many libraries have back end and programming operations that are even more interactive and tactile than retail.  That’s why I like OSHA’s approach for this—it sorts COVID-19-related safety practices by function (of course, ALA and other library-specific resources will further distill and assess these resources for libraries[3]).

 

Step 4

If the option is available to your library, I strongly recommend confirming your library’s operational choices and related safety practices with your county health department.  Your local health officials may even have some thoughts about unique considerations for your locality (after all, that is their job).  This is also a great way to show the public that your library has thought these measures through thoroughly, that your choices are rationally related to your activities, and that they have credentialed back-up.

 

Step 5

As the member writes, once you have selected your operations and confirmed your safety measures, add the measures (temporarily) to your library’s Code of Conduct.

Here is a template policy for doing that (variables are in yellow, including whether or not your library must abide by the current Executive Orders):

The [Insert] Library is committed to serving its community during hard times and good.

The year 2020 has brought unprecedented challenges to our nation, state, and area of service.

To continue serving our patrons during this difficult time, while placing the health and safety of our community at the forefront, the Library Board of Trustees has adopted the below Temporary Safety Practices Policy. 

The safety measures in this policy have been confirmed with the [Insert] County Health Department.

The board’s authority to adopt these measures is found in our charter, bylaws, New York Education Law Sections 255, 260, 226, 8 NYCRR 90.2, and Article 2 of the Not-for-profit corporation law.  We also consider it our duty to develop these measures to keep our services accessible at this time. 

Staff at the [Insert] Library have the authority to enforce these measures like any other of the Library’s Rules.  Concerns about this policy should be directed to [Insert name]. Thank you for honoring these measures, which are designed to keep our community safe, while allowing access to the library.

[Insert Library] Temporary Safety Practices

Scope of Temporary Safety Measures

The [Insert] Library operates per relevant law and Executive Orders, including those pertaining to mandatory workforce reductions.  Therefore, the temporary practices in this Policy may be further modified as needed to conform with relevant Orders.

Activities

Until the board votes to revoke this temporary policy, only the following routine activities may be performed on site at the library:

[list activities]

Safety Practices

Until the board votes to revoke this temporary policy, the library will require all people on the premises to abide by the following safety practices:

[based on activities and confirmed safety practices, including but not limited to use of particular PPE, insert]

ADA

In the event any safety requirement is not practicable on the basis of a disability, please contact [Insert name] to explore a reasonable accommodation.

Communication

To aid the community in honoring these requirements, the Library will transmit this policy through social media, and use a variety of health authority-approved, age-appropriate, multi-lingual and visual means to transmit this message in a manner consistent with our mission and our identity as a welcoming and accessible resource to the community.

Code of Conduct

Adherence to these practices shall be enforced as a requirement of the Library’s Code of Conduct until such time as this temporary policy is revoked.

 

In developing this guidance, I have considered the long line of federal cases related to the library access (starting with Kreimer v Bur. of Police).[4]

New York has a vivid array of people devoted to civil liberties, and there is a chance a community member could feel that conditioning library access on temporary protective measures adopted in the interest of public health could violate First Amendment or other rights.  This is why careful consideration of what operations your library will resume, and enforcement of only those safety measures related to those operations (steps 1 and 2), are so critical.

The First Amendment tests of such measures will vary based on the circumstances,[5] but the goal of combining a clear policy with well-documented, informed decision-making, good communication, and the backup of health authorities, is to avoid the need for such legal testing in the first place!

As with all things template, the suggested language above should be modified to fit your unique library.  If there is a local attorney versed in First Amendment and municipal law, this is a good time to bring them in to review your final product.[6]  The town attorney for your municipality will have had to address similar First Amendment/safety concerns (and is probably doing a lot of that right now), so they might be a good pick.

And now, with all that as background,[7] to address the members’ specific questions:

Can a library prevent someone from coming into the library if they refuse to wear a mask?

Yes (but follow the steps above).

Are libraries required to provide a mask for the public?

No (but hey, it would be nice, especially if you can get them donated).

And what if a person wears the mask improperly - can they be asked to leave?

Yes (but take care to consider any implications under ADA[8]; some people might need to use alternate PPE).

Thank you for a great question.  I wish you safe operations as you serve your community.

 



[1] Whatever your library decides should be consistent with its analysis in any decision to apply for the Paycheck Protection Program, or other aid.

[2] Of course—especially as the mother of a Type1 diabetic and Gen Xer with parents almost 80[2]— as a finishing place, I like a world where we no longer need to socially distance, maniacally sterilize, and use PPE…but we don’t know when we’ll get that world.

[3] I like writing guidance for libraries because at a certain point, you can assume they know how to find the type of resources one is describing.  It’s like telling a lawyer that something is in the penal law—I assume they can just find what I’m talking about.

[4] Citation: 958 F2d 1242 [3d Cir 1992]

[5] A recent good example of how First Amendment tests can turn on precise circumstances can be seen in Wagner v Harpstead, 2019 US Dist LEXIS 220357 [D Minn Nov. 12, 2019, No. 18-cv-3429].

[6] This First Amendment concern is less critical for association libraries, but since such libraries also have a vested interest in maximizing access to their areas of service, it’s a good exercise for them, too.

[7] I do run on, I know.  Occupational hazard.

Tags: ADA, COVID-19, Emergency Response, Policy

Topic: Using tax levy or donated funds to purchase food for community - 4/30/2020
Could we use any of our budgetary funds as collected through our tax levy and/or funds received fr...
Posted: Thursday, April 30, 2020 Permalink

MEMBER QUESTION

Could we use any of our budgetary funds as collected through our tax levy and/or funds received from donations (restricted and unrestricted) to pay for food (dry goods, fresh produce and/or fruit) and PPE's which would be given freely to the public/patrons some of which may not be from our community (we would not ask them for a library card or ID)?

If so, could it be considered a program or if not what other budgetary designation would you suggest it be given?


 

WNYLRC ATTORNEY'S RESPONSE

Before I answer this, I am going to share a story.  Trust me, it’s relevant.

When the workforce restrictions and ban on large gatherings due to COVID-19 started impacting libraries, the first wave of questions to “Ask the Lawyer” were about continuity of operations.  Specifically, they were about continuing payroll and still offering programs, even though staff would need to work from home.

Because Executive Orders and public health restrictions were happening at a rapid pace, answers needed to be developed quickly. 

If there is one thing the lawyers hate, it is quick decision-making.  We like precedent, we like time for research, and we like ample time to reflect on the implications of our client’s decisions.   In a world moving ever-faster, this is one of the things I cherish about my profession: it demands reflection.

But with libraries waiting for input, I didn’t have the luxury of time.  My research indicated that—barring a union contract provision or other express intervening factor—job expectations could be temporarily altered and library programs could continue, re-tooled to meet social distancing requirements (a/k/a “online”) while ensuring legal compliance and limiting liability.  But I couldn’t take a week or two to decide.

So I did what lawyers do when we don’t have time to let advice ferment—I turned to another lawyer.

I called an attorney I knew would appreciate the nuances of a question involving municipal law, Education law, taxpayer money, and the all-seeing eye of the NYS Comptroller.  I laid out the thinking that would eventually form my answers, and asked him to poke any holes he could see (I think I said “Pretend you’re the attorney for an angry taxpayer”). 

He asked a few well-informed, testing questions, and when my legal analysis held up, I felt good. 

But then he asked:

“Cole, do you actually think when this thing is all over, the Comptroller is going to organize a posse and hunt down libraries for trying to help their communities? I mean come on…people are in real need here.  Who would do that?”

I laughed, and it felt good.[1]  I thanked him and said I owed him one (in my world that means he gets to ask me a similar favor, any time, night or day, and I have to deliver).

Here’s the truth, though: although I laughed, my secret answer to his question was: Yes.  Yes, I do think that when this is all over, the Comptroller could audit and expose fiscal mis-steps by well-meaning libraries.  And I am also concerned that frightened tax payers and municipalities, searching for a way to “solve” fiscal panic, could use any small lapses in compliance or transparency to try and reduce budgets next fiscal year (just when they’ll be needing their libraries to assist with ongoing community recovery).  That is why the member’s question is so important.

That said, I got into this business because I believe that law, when well-developed and thoughtfully applied, can ensure justice and create the conditions for a happy society.  And I think the law—even as construed by the Comptroller—will allow for the actions proposed by the member, without the concern that a prohibited gift[2] or shady transaction was engaged in.

How?

I’ll give you three solutions.

But first…

Some Necessary Background

As a primer to each solution, just in case you haven’t checked in on fiscal controls for public libraries, every reader should visit NYLA’s excellent “Handbook for Library Trustees” (2018 edition), pages 50-58.[3]  This section sets forth all the routine requirements for properly accepting, retaining, spending, and accounting for both public and privately sourced funding. 

The solutions below, and the steps to set them in motion, build off the assumption that a library is following the fiscal practices laid out in those pages.

And just one more thing…

 

Safety First

Okay.  Let’s say your board is ready to assess and approve budget adjustments to initiate the acquisition and distribution of food and PPE.  Your staff and some volunteers are rarin’ to go.[4]   All you need to do is sort out the legal stuff.

But before worrying about how to fund it, or how to characterize the initiative in the budget, the first thing to consider is safety.

No matter what situation the library is in, a written safety plan, informed by OSHA and CDC guidelines, and ideally, confirmed with the local County Health Department, is the first priority for any such initiative.  Before approving funds, a board should review the plan for safety, and be assured that it is as well-developed as it can be (and again, if at all possible, confirmed by experts).[5]

So with that “safety first” caveat, here are the three solutions:

 

Solution 1: Acquisition and Distribution Only (No programming)

Objective: The library will acquire and distribute food and PPE, without any educational programming component or further conditions for participation (people can just stop by and pick up what they need).

Action Steps:

Step 1: Organizers (who could be board members, or staff, or volunteers…any combination is fine) develop and, with a county health official, affirm a safety plan for the distribution of the resources.  This plan should include how the items will be acquired, transported, and picked up, and what staff and volunteer resources will be used. 

NOTE: to ensure the safety of employees and protect the library from any liability, changes to routine job duties should be confirmed in a short letter referencing the safety plan.

Step 2:  Considering the need they hope to fill, and safety parameters, organizers develop a procurement plan, consistent with library policy and pages 50-58 of the Trustee Handbook, for the supplies to be acquired.  This plan should consider the appropriate sourcing and selection of supplies (PPE meeting CDC guidelines, food suited to re-distribution), and the need to follow relevant procurement laws.

NOTE:  On March 27, the Governor issued Executive Order 202.11, which suspends the public bid opening requirements of General Municipal Law Section 103(2) (of course, 103 only applies to purchases exceeding $20k…that would be a lot of PPE!).

Step 3: The Treasurer develops a budget recommendation for a budget change that will fund the procurement plan, and confirms to the board that any private funds to be used are not barred by donor terms (if all of the steps in this solution are followed, it will be a legal use of tax levy funds).

Step 4:  The board looks through its mission and plan of service and selects the language in those guiding resources consistent with a distribution for the goods to promote the health or general well-being of the community.

Step 5:  The board verifies the above steps, verifies consistency with bylaws and library policies, and sets a meeting under the modified procedures of the Open Meetings Law to adopt a customized version of the following resolution:

WHEREAS it is the mission of the [NAME] Library to [insert] and the plan of service for the library includes [insert];and

WHEREAS the state is currently in a state of emergency as a result of the ongoing COVID-19 pandemic; and

WHEREAS owing to the pandemic and state of emergency, the library’s area of service is in an unprecedented state of need with regard to fundamentals and supplies for personal safety; and

WHEREAS, owing to travel restrictions and the need of essential workers to serve our community, some people within our area of service may not be card-holding members of the community, but still be in need of supplies that will protect the their well-being, as therefore the general health of our area of service; and

WHEREAS the board finds it consistent with the mission and plan of service to adjust the current budget of the library to allocate resources to assist those within our community by supplying fundamental resources to enable the promotion of health and safety during a time of emergency; and

WHEREAS because the library is uniquely situated and widely regarded as a trustworthy and centrally located institution whose resources are freely accessible to all, and regards it as mission-critical to continue that role at this time; and

WHEREAS the library staff has identified a written plan for the safe allocation of such fundamental resources, and such plan has been reviewed by appropriate health officials; and

WHEREAS the library staff has identified and the board has duly reviewed a proposed plan for the responsible and compliant procurement of such resources, which is attached to this resolution and included in the minutes of this meeting; and

WHEREAS the Treasurer has verified that any private sources of funding do not bar the proposed procurement;

BE IT RESOLVED that the current budget be amended to direct [$amount] from [insert] to the acquisition and free distribution of food and personal protective equipment during the state of emergency, and during any period of recovery (the “Community Health Initiative Plan”); and

BE IT FURTHER RESOLVED that the acquisition of such resources listed in the Procurement Plan shall be conducted and accounted for per all the required provisions for procurement; and

BE IT FURTHER RESOLVED that the library shall effect the distribution of the resources only as set forth in the attached Safety Plan.

 

Solution 2: A Public Health Program

Objective: the library develops a program, consistent with its plan of service, to educate participants on PPE and the importance of good nutrition during a pandemic, and after a short educational program, makes supplies available.  This could even include innovative and fun ideas, like a recipe from a local chef, or instructions for canning food.

Action Steps:

Step 1: Organizers develop and, with a county health official, affirm the content of a short educational program, as well as the safety plan for distribution of the resources. 

Step 2:  Follow all the steps in “Solution 1,” but add this “whereas” clause to your resolution:

WHEREAS the library staff has [developed/identified] a short informational program on personal protective equipment and the important of good nutrition, and such program has been [reviewed by/endorsed by] appropriate health officials;

And add this further action to the resolution:

BE IT FURTHER RESOLVED that in conjunction with the distribution of fundamental resources the library shall promote the short informational program identified in the Safety Plan.

And finally…

 

Solution 3: The Partnered Program

Objective: together with another entity, and per a written agreement, the library allocates financial, and perhaps other, resources to a joint public health initiative to acquire and distribute supplies.

This one I can’t provide a template for: the permutations are just too diverse.  I can only say, when working with another entity, the library will need to consider every element listed in the above solutions: safety (first, always), mission alignment, employee needs, budget, and proper vetting of the plan by appropriate health officials.

Because of the risks related to compliance, a collaborative approach (unless it is just a donation to one of the above efforts…with that, take the money and get it done!) should be only through a written agreement that has been reviewed by the library's lawyer.  For this reason, it could be more cumbersome than other approaches, but in the event of a worst-case scenario, confirming all those details will be worth it.

 

For All Solutions

For any of the solutions I have outlined above, a critical contributor may be the library's insurance carrier. Right after the organizers start developing the plan for safety, someone should give your carrier a call, just to make sure there are no “exclusions” from the policy or conditions for your library to consider.

How do you check in with a carrier on this?  Just tell them: “Some lawyer who writes about library legal issues said we should check in with you before we do this.”

While your insurance carrier is probably used to the library developing innovative programming and serving a wide swathe of the population, the distribution of food and PPE during a pandemic is something they might want to weigh in on.  That said, in my experience, most carriers will encourage your initiative.  They might ask questions about where the distribution will take place, who is offering the programming, and how you are sourcing the supplies. 

Since the answers might impact your planning, it is better to call them early in the process, rather than just before the board meets (telephonically, as allowed by Executive Order 202.6[6]) to vote.

And who knows?  They might even have some helpful hints for you as you undertake to support your community.   This whole thing is keeping agents and adjusters awake at night, just like the rest of us.

 

Thank you

Okay, once I start waxing on about insurance, it’s time to pack it in.  I hope this was helpful, and I hope it can contribute to your library meeting the needs of your community.

Thank you for a great question, for your determination, and your dauntless innovation.

 



[1] This image his rhetoric inspired in my head--an army of GAGAS-wielding accountants, riding horses across libraryland, handing out fiscal frontier justice—makes me laugh now, too (but also cringe).

[2] In violation of Article VIII, Section 8 of the NY Constitution.

[3] One cardinal rule at “Ask the Lawyer” is “don’t reinvent the wheel.”  If library resources have already been used to develop solid guidance on a topic, we simply refer the member to that answer.  Lucky for me, librarians are innovators, so there are always new topics to address.

[4] Some libraries and library systems may have determined that, because they are regarded as a subdivision of government, the current workforce reduction orders do not apply to them.  Others will be organizing a program with the restriction that employees must (as of April 28, 2020) 100% work from home.  Still others will be coordinating terms of employment with a union.  This answer presumes your library is working within its own, unique parameters.

[5] By stressing this, I don’t mean to imply that the member is not thinking about safety (in fact, the care the member is taking about legal compliance suggests to me that they place a high priority on safety).  I just want to make sure that in any initiative to assist during this time of emergency, safety is the first consideration on the table.  At all times.

Tags: COVID-19, Donations, Emergency Response, Municipal Libraries, Taxes

Topic: Patron account debt collections - 4/30/2020
What laws or limits should libraries consider when storing and collecting patron account debts? ...
Posted: Thursday, April 30, 2020 Permalink

MEMBER QUESTION

What laws or limits should libraries consider when storing and collecting patron account debts?

Who is responsible for compliance: the library where a patron is registered (they set their own blocking policies), or the system maintaining the records?

Similarly, does the library system (who manages an ILS on behalf of its member libraries) have the authority over library records, including that of purging library patron accounts, according to local policy?

WNYLRC ATTORNEY'S RESPONSE

On the surface, these questions are very simple, since they boil down to: what are the laws impacting the flow of data comprising patron debt records (bills, fines, referral to collections), and who needs to follow those laws?

Of course, underneath that simplicity, the questions are mission-critical.  Libraries and library systems need to follow the relevant laws without error, and to ensure that while doing so, they reinforce the mission of their institutions.[1]

For this question, we’ll assume “patron account debts” as referred to by the member, are the four most typical “cost” records that a library maintains about patrons:

  • Late fee records
  • Replacement/damage fee records
  • Hold fee records, and
  • Ancillary costs records (duplication fees, etc.). 

Expressly excluded from this list of “patron account debts,” and from consideration in this answer, is debt related to deliberate property damage, personal injury, or express[2] contractual liability.  

And with those specifications in mind, here we go.

What laws or limits should libraries consider when storing and collecting patron account debts? 

To get to the important details in this question, we have to start with the fundamentals.

The first legal consideration when storing and collecting patron account debts is the nature of your library or library system, which is governed by a combination of the New York State Education Law (“Ed Law”), and the New York Not-For-Profit Corporations Law (“NFPC Law”), your charter, and bylaws.[3]

These laws and documents impact how your library or system 1) owns property; 2) sets the terms for that property to be borrowed; 3) maintains records regarding such activity; and 4) (if relevant) contracts with third parties (such as collection agencies or data repositories) to manage them.

The second legal consideration is the nature of the patron debts: are they set by law or regulation (like a tax or permit fee), or are they the by-product of a policy or agreement (like a service contract)?

The Ed Law and the NYPC Law, and related regulations, do not prescribe late fees, replacement fees, hold fees, or ancillary fees for patrons.  Rather, the Ed Law emphasizes that use of a library should be without costs to its community, as can be seen in this excerpt from Ed Law Section 253:

The term “public” library as used in this chapter shall be construed to mean a library, other than professional, technical or public school library, established for free public purposes by official action of a municipality or district or the legislature, where the whole interests belong to the public; the term “association” library shall be construed to mean a library established and controlled, in whole or in part, by a group of private individuals operating as an association, close corporation or as trustees under the provisions of a will or deed of trust; and the term “free” as applied to a library shall be construed to mean a library maintained for the benefit and free use on equal terms of all the people of the community in which the library is located. [emphasis added]

This “free” access within the area of service is also emphasized in Ed Law Section 262, which states:

Every library established under section two hundred fifty-five of this chapter shall be forever free to the inhabitants of the municipality or district or Indian reservation, which establishes it, subject always to rules of the library trustees who shall have authority to exclude any person who wilfully [sic] violates such rules; and the trustees may, under such conditions as they think expedient, extend the privileges of the library to persons living outside such municipality or district or Indian reservation.

That said, state law does contemplate the need for libraries to incentivize the return of books, and in solving that problem, it does not mess around.  As provided in Ed Law Section 265:

Whoever wilfully [sic] detains any book, newspaper, magazine, pamphlet, manuscript or other property belonging to any public or incorporated library, reading-room, museum or other educational institution, for thirty days after notice in writing to return the same, given after the expiration of the time which by the rules of such institution, such article or other property may be kept, 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, and the said notice shall bear on its face a copy of this section.

Forgive me if you find this boring, but I find it fascinating: New York State law’s only mention of fines in the context of accessing library services is a section that authorizes libraries to work with local law enforcement to impose fines and enforce the return of books through criminal prosecution.  Meanwhile, the law makes NO mention of collection of late fees or penalties per policy or through civil debt collection.[4]

Although Ed Law 265 is the only legislation to prescribe a remedy for failure to timely return library materials, I am not aware of any public or association library that actively uses it, although this ability has been on the books in its current form since 1950.[5]

So if the debt a library patron owes a library isn’t a “fine” under Ed Law Section 265 (or up to six months in jail!), what is it?

Rather than pursue the “265” option, most libraries have elected to use the  authority of their boards under Ed Law 226, and the NFPC Law, to simply condition the acquisition of a library card (and thus, access to core library services) on the patron’s knowing consent to a voluntary system of fines and penalties.   In other words, patrons agree to pay money in return for the ongoing privilege of borrowing books.   

While recent developments under consumer protection laws characterize it otherwise,[6] this voluntary, quid-pro-quo condition of otherwise free library access is viewed by the law as “contractual.”

Library boards, empowered by the law to set policy for the proper functioning of the library, use this contractual system to:

  • Incentivize return of assets (late fees);
  • Replace items that are not returned (replacement costs), and
  • Offset extras that are not part of a library’s core services (access to on-site photocopiers; hold fees for out-of-system interlibrary loans).[7]

This was a long answer to this second consideration, but it is critical.  What is the nature of patron debt?  It’s contractual.  This is what enables library debt to be farmed out for collections, or certain patron debt to be discharged in bankruptcy.  This will become relevant further into our analysis.

The third legal consideration is that every record related to patron debt is subject to the requirements of New York’s CPLR 4509, which means that—other than as needed for the proper functioning of the library—the records must be kept confidential.  They are just as private as circulation records and internet searches.

The fourth legal consideration is the medium of the record: hard copy, or electronic (or both)? In the event the record is electronic, the SHIELD ACT, which went into effect this March, may govern the keeper’s security and data breach requirements.

And finally, the fifth legal consideration is: what are the parameters for enforcing or collecting on the debt, anyway?  A combination of state and federal law, together with the library/system’s policy.  We’ll tackle this factor in-depth in the “diagnostic” section, below.

Which brings us to the member’s next two questions:

Who is responsible for compliance: the library where a patron is registered (they set their own blocking policies), or the system maintaining the records?

Similarly, does the library system (who manages an ILS on behalf of its member libraries) have the authority over library records, including that of purging library patron accounts, according to local policy? 

As you can probably tell by the remaining length of this “Ask the Lawyer”, there is not one, simple answer to either of these questions.  In fact, there are multiple answers, controlled by multiple factors.

Here is a process for sorting those factors out, and ensuring your library or system is enforcing fines and fees within the boundaries of the law.

Does the library or library system avail itself of Ed Law 265?

Are you one of the rare institutions actually using (not just threatening to use) law enforcement to assist with returns?  If “yes,” there should be a written policy for sending out notices and coordinating with local law enforcement. 

Also, if you do this, please write me at adams@stephaniecoleadams.com, because it would be really interesting to hear about your experience, you bibliophilic unicorn.

If the answer is “no” …

What document shows the patron has expressly agreed to pay the debt your library is charging as a condition of having a library card?

This would be the policies or terms the patron consented to follow when they signed up for their card.  It should be a clear statement of fines and fees that patrons expressly agree to, and the patron’s express consent to that agreement (signified by a signature or authenticable electronic signature) should be demonstrable at any later date the library or system needs to enforce the debt.  In some systems, this might even be covered in the member agreement (or a policy).

If the conditions showing a clear consent to fees aren’t clearly set forth in one document, or present at the time they are incurred (in a way that will show the patron knowingly incurred the cost), that should be corrected.

Many boards and staff inherited fee structures from previous administrations.  It is wise to revisit the compliance and function of fine policies and the systems for enforcing them no less than every five years.  This is particularly true since in the last five years, there have been changes to how fines may be collected, and changes to laws regarding maintenance of electronic records. 

Is that “debt agreement” with a single library, or an entire system serving that library? Whoever the agreement is with (the “creditor”) is the entity directly responsible for how the debt is enforced and related legal compliance.

This is important to clarify.  If the debt agreement is with a system, that system is the “creditor” and the system should be the entity maintaining the information, not the patron’s main library.  On the flip side, if the debt agreement is solely with a library (and the system has separate terms, or there is no system involved) that library is the creditor, and is the party responsible for the information’s use and maintenance.  The documentation related to fees, and the enabling policies, should leave no room for ambiguity in this.

This does not mean that any library within a system needs to conform its fine policy to all the others in that system.  Rather, within the bounds of the law, it means that a system enforcing multiple member library policies must ensure that patrons have notice of the different fee structures they might be agreeing to, before the imposition of a fee.

Wait! What about library systems that maintain overdue records and enforce collections on behalf of member libraries?  Or libraries and systems that contract those services out.

This is where terminology becomes important.  In a policy to charge fees for late books and replacements, a patron becomes a “debtor” (an entity who owes money to another entity).  The entity they owe it to (the library or system) is the “creditor.”  Meanwhile, any third party hired to track the information related to the debt on behalf of the creditor is a “contractor.”

It is the creditor—the entity situated to assert a debt in a court of law—who is responsible for the proper management of debt-related information. While they can retain a contractor to manage the database, and even perform related functions (sending out notices, making calls to encourage returns), they remain the party ultimately responsible for use and maintenance of the information.  They are also the sole party empowered to sign over the authority to collect the debt to an agent (a “collection agency”).[8]

In New York, some library systems are the creditors, but some (if its founding documents, the membership agreement, and policies provide for it) are just the contractors for their member libraries. The ability to set this relationship up, and to effect the resulting responsibility and authority, starts with the entity type and its contractual affiliations, which will vary from system to system, and will change based on charter, bylaws, and strategic decisions. 

This is why founding documents are always the “first legal consideration.”

What policy at the entity required to maintain the information (the creditor library or system) clearly sets out how debt-related information is generated, maintained, used, and purged?

It can have any number of names, but this policy should reference the terms the patrons have agreed to, all relevant laws, and be tied into the institution’s policy for data breach.  If the creditor uses a third party to store the data, or a collection agency, baseline criteria for those contracts is also part of this answer.  Further, the policy should specifically address how long fee records are maintained after they are incurred, and under what terms patrons might be forever barred from borrowing privileges based on such fees.

For libraries and systems that use fees, below is a sample policy that covers the different considerations of charging fees.  Variable items are in yellow, critical items (meaning a library/system should have a clear policy and provision regarding this) are in red:

TEMPLATE Policy Regarding Terms, Records, and Payment of Patron Fees

Terms of Borrowing

As a condition of borrowing privileges, patrons agree to fees as set forth in [all documents listing a fee].

Education Law 265

The [XXX library/system] [does/does not] use the remedies allowed by Education Law 265 for the return of late items.

Threshold for Suspension of Borrowing

Patrons with over [$amount] of unpaid fees will have their borrowing privileged suspended.

Fee Records

Information regarding fees is housed on [place/entity housing information].

The security provision for [place] are [insert].

[Place] is only accessible to trained employees of [institution and any affiliates who must access it].

Notice of fees owed will only be sent out via sealed envelope sent via USPS, to the email of record of the patron, or provided on a printed paper upon the patron’s request in person. 

Information related to fines shall not be conveyed over the phone unless as an ADA accommodation.

Collections

Once outstanding fees reach [$threshold amount], a third-party collection agency may be used.

The contract for any collection agency shall include a commitment to follow all relevant consumer protection laws and [insert priorities of the library regarding contact with patrons].

To ensure confidentiality of patron records as required by CPLR 4509, no such agency shall be authorized to contact patrons at their residence in person or via the telephone. 

The [library/system] shall cease collection efforts as to any patron who informs the library that they have filed bankruptcy.  To re-institute borrowing privileges during bankruptcy, the patron should send a copy of the bankruptcy filing to the library. In the event new charges after the bankruptcy filing again reach the threshold for suspending borrowing privileges, privileges will be suspended.

Other than trained employees, and any third-party collection agency, only the patron and those duly authorized per CPLR 4509 may access records related to patron fees.  Collection notices may only be sent via USPS, and to the email of record to the patron; contact may only be via phone if initiated by the patron.

In the event a patron fee record is authorized or accessed in violation of this policy, the library/system will take all appropriate corrective action, and if required, will follow the notification procedures in the library/system’s policy regarding data breach.

Payment of fees

Fees will only be accepted by the [library/system] per the relevant fiscal controls, as set out in [reference fiscal control policy/ies, or the terms in a collection agency contract].

Accounting

Unpaid fees are listed as “receivables” and accounted for in book-keeping as required by GAGAS.

Unpaid fees are no longer collectible in a court of law six (6) years after they are incurred, and thus are written off the books after six (6) years.

Record Purge

After unpaid fees are written off the books, the library will purge all print and electronic records of such fees, except for preserving de-identified data for purposes of assessing library operations.

Permanent Loss of Privileges

Patrons responsible for [$amount] of unpaid fees (based on any combination of late fees, replacement costs, or other unpaid fees), unless the debt is discharged in bankruptcy, will be permanently barred from applying for another card from the [library/system], and such record shall be maintained in perpetuity.

 

Template language, of course, is only provided so it can be conformed to the unique position, practices, and goals of your library/system.  Within the scope set out above, there is a lot of latitude to do things in a way that reflects the unique needs of your institution. What is important is that there be clarity about the use of fees, and how they are managed.  Further, institutions placing a high priority on collectability of fines should have the full suite of language reviewed by their lawyer annually.

What policy or standard operating procedure at an entity NOT required to maintain the information, but accessing it for customer service, clearly sets out how debt-related information is accessed and not improperly shared?

For collaborating entities with access but not responsibility for fee records (for instance, a member library within a system, or a system who must follow a member’s policy) compliance with a clear policy or SOP should be part of routine training for employees and volunteers.

Standard Operating Procedure Regarding Confidentiality of Patron Fees

The [XXX library/system] maintains confidential data regarding patron fees, including late fees and hold fees, on a password-protected database only available to trained employees. 

The [adopting institution] accesses and adds to this information to assist patrons in accessing and addressing issues related to fees.

Other than trained employees, only the patron and those duly authorized per CPLR 4509 may access records related to a patron’s fees.

Notice of fees owed will only be sent out via sealed envelope sent via USPS, to the email of record to the patron, or provided on a printed paper upon the patron’s request in person.  Information related to fines shall not be conveyed over the phone unless as an ADA accommodation.

In the event a patron fee record is authorized or accessed in violation of this procedure, the [adopting institution] will take all appropriate corrective action, and if required, will let [XXX library system] know, so it can follow the notification procedures in the [XXXlibrary/system]’s policy regarding data breach.

Fees will only be collected per the attached [relevant fiscal controls/policy/member agreement].

Employees are trained on this standard operating procedure prior to doing any work related to fees, and not less than annually. 

This template language, is only provided to inspire a standard operating procedure that addresses critical details; any final SOP should be conformed to the unique practices of your library and system.

If a collection agency is used to encourage returns and enforce late fees, who retains the agency and monitors its performance?

This should only be the entity expressly authorized by the patron agreement to collect the debt (the “creditor”).

Is there a written policy for how the library or system accounts for patron debt in its books?  When, if ever, is that debt written off?

Patron debt is a “receivable,” meaning it is on the books as money owed to the library, until the debt is forgiven or written off.[9]

How long is a patron’s debt enforceable?

In New York, a debt owed per a contract is enforceable for six years, unless otherwise provided.[10]  Unless reduced to a judgment, efforts to collect debts that are enforceable run the risk of being considered unfair debt collection practices.[11]  However, a library can continue to condition borrowing privileges on truing up past accounts and returning/replacing lost items, even if they are not collectible in a court of law.

Does the record-keeping policy of the library or system tracking the patron debt continue the consequences for the debt after it is written off?  Or does the policy not write off the debt, ever? 

There is no “right” answer here, but there should be mission-sensitive harmony between policies and how the library is accounting for the debt.  If a 1995 debt was written off the books in 2005, it might not make sense to enforce the debt’s consequences past 2015.  Figuring this out is a great excuse for a library’s treasurer, accountant, and director to go out for lunch.

The final, final answers to the member’s question are therefore:

1) Every library and library system will have a different array of answers to the member’s questions. 

2) The key take-away is that to ensure legal compliance about managing patron debt, an institution must address the above-listed considerations.

Coda

OK. I said I wasn't going to say anything, but I have to.

Anyone who reads the law can see that use of late fees is not a practice baked into the legal roots of public and association libraries.  Rather, libraries in New York State are expressly created as free institutions—institutions assured the collaboration of law enforcement when there is an abuse of their free resources.

I appreciate that viewing the problem of unreturned books as a “criminal” matter can pose some concern for libraries.  However, as a former criminal defense attorney, and now a business attorney, I can tell you that in many ways, a system that caps fines at $25 and holds the threat of jail time for anyone—even those who can easily afford larger library fees than some—is actually comparatively egalitarian. 

That said, the fact that Education Law 265 is not more utilized shows that at some point, critical connections within communities (libraries and municipal prosecuting attorneys) were not forged to empower this approach. Rather, it seems that many libraries resorted to fines and collection operations, monetizing the human tendency to forget to return library books. 

Over time, these fees were regarded as a revenue stream.  In some places, it might even supplement budgets that should be fully supplied by sponsoring municipalities.[12]

I see this failure to use 265 as a failing of the law.  And as someone who has devoted their adult life to the law, that is disappointing to see. 

That said, I take heart that in 2015, 30 states’ Attorneys General took action to ensure library fees could no longer impact people’s credit, limiting the toolbox of collection agencies enforcing library fees.[13]  And I am glad many libraries are taking fresh, critical looks at how to encourage responsible library use and good stewardship of library assets, without resorting to financial fees.  

The plain and repeated language in New York’s Education Law states that public and association libraries are “free” to their communities.  Compliance with that language should be the aim of every public and association library, even as they exercise their authority, also created by law, to protect their assets and serve their unique areas of service.

 



[1] Much data-driven, well-researched, and passionate content has been generated about libraries’ use of fines and penalties.  This answer just sticks to using them with an eye to legal compliance.

[2] Meaning the debt is based on a specific, written contract with the precise amount owed set forth and signed by the patron.

[3] This structure is more fully set forth in answer like this one: https://www.wnylrc.org/ask-the-lawyer/raqs/103.

[4] Since the maximum imprisonment term of six months makes the detention of a library book a misdemeanor, this remedy is “criminal”.

[5] Further, when one looks at the centralized guidance for operating a public or free association library in New York, the issue of fines and fees is not substantively addressed.  While the excellent guidance here: http://www.nysl.nysed.gov/libdev/helpful/helpful.pdf states that policies, including those about fines, should be well-thought out, there is no background or guidance on fines. 

[6] Without turning this into a law review article, I’ll simply say that since 2015, credit reporting agencies have not been allowed to add library fines to credit reports, because they are not viewed as “contractual” (see the settlement terms found at https://ag.ny.gov/pdfs/CRA%20Agreement%20Fully%20Executed%203.8.15.pdf).  That said, in the legal biz, the conditioning of access upon the agreement to pay fines is “contractual,” and based on that construct, some libraries do use collection agencies to sue for unpaid fees.

[7]It has been my conclusion that hold fees within cooperative library systems are contrary to relevant law and regulations.  But that’s a column for another day.

[8] Of course, collection agency contracts should have protections and assurances requiring the agent to follow the law. That is partially to protect the creditor in the event their agent violates the law (and can also function to protect the library-patron relationship).

[9] An illustration of how such receivables are viewed under accounting procedures for public libraries can be found in this 2014 NYS Comptroller’s audit of Oswego Public Library: https://www.osc.state.ny.us/localgov/audits/libraries/2014/oswego_sd.pdf

[10] See Section 213 of New York’s Civil Procedure Laws and Rules.  The limitation period to use Ed Law 265 is two years, but since 265 doesn’t seem like a popular option, we’ll just stick that fact in a footnote.

[11] The Fair Debt Collection Practices Act (“FDCPA”) prohibits the use of any false, deceptive, or misleading representation or means in connection with the collection of any debt (see 15 U.S.C.S. § 1692e).

[12] In many ways, it is akin to the addiction municipalities have to municipal court fees.  If you ever need to hear a good rant, ask me about that one.

[13] The legal action discussed in footnote 7.

Tags: Fees and Fines

Topic: Fiction Writing Activity as Library Program, Fan Fiction, and Copyright - 4/27/2020
I am in the stages of planning a library one-time-only event aimed at getting college students int...
Posted: Monday, April 27, 2020 Permalink

MEMBER QUESTION

I am in the stages of planning a library one-time-only event aimed at getting college students interested in writing their own works of fiction. There are no class credits involved. My premise is “Where do ideas come from?”

Some now-published authors first writing attempts were in writing fan fiction (fanfic). I may suggest that as a possibility while advising the students that they cannot legally make any money from such works. I was also planning on mentioning pastiche works, where they could have similar characters, situations, etc. Now I wonder if that is an improvement?

I recall a Sherlock Holmes inspired character called Solar Pons. The Solar Pons stories basically consisted of all the Holmes characters with different names, though mentioning Sherlock in the stories. These works were published by August Derleth and later by Basil Copper. [see the attached newspaper article from the 2015 issue of the independent]

I hoped to suggest either of these options as a way to spark some interest, but wonder I’d be opening a can of worms that is best kept shut.

WNYLRC ATTORNEY'S RESPONSE

For this question, the Law Office of Stephanie Adams, PLLC used a ringer--experienced publishing law and published author Sallie Randolph, who works in our office, advising authors on publishing contracts.  We asked Sallie for her take--as both a copyright attorney and an author--on this intriguing question. Here is her reply:

A library program aimed at sparking the interest of college students in writing fiction is a great idea!  Encouraging them to try their hands at fan fiction is good way to give them a jump start. Fan fiction writing can build skills related to such fiction elements as plot and character, and writing fan fiction is widely acknowledged as an effective way to build writing skills, but it is also highly controversial.

I share your concern about the legal risks involved with writing fan fiction. Most college students don’t understand enough about the nuances of copyright law to truly “get” the reasons why they probably shouldn’t share their work online. Absent the consent of the copyright owner, there is no right to create fan fiction. It’s that simple. But the reasons why are complex.

Under copyright law, a work that is “based on” another work is defined as a “derivative work.” The  right to create a derivative work is reserved by law to the author of the original work. In the process, a derivative work becomes an independently copyrightable new work. However, the right to write a derivative work requires permission of the original author. Fan fiction is a derivative work, and, therefore, if unauthorized, is infringing.

Writers who want to create fan fiction should do so with extreme caution. Swirling around in cyberspace are myriad justifications for copyright infringement. Many copyright myths also circulate in cyberspace. People may think it’s OK to post their fan fiction on the web because they’re generating  publicity for the original author, or because they don’t make money, or because  writing fanfic is paying a compliment to the author, or because the original work is out of print. There are dozens of excuses.

Copyright is literally the right to copy. Copyright infringement is what lawyers call a “strict liability tort.” If you copy without permission you are infringing. Assumptions, excuses, and myths are dangerous. Only the copyright owner has the right to decide what others can or cannot do with her work. Copyright owners have no obligation to explain their motives for granting or withholding permission. They have no obligation to even reply to permission requests. There is no such thing as default consent. The obligation to get permission falls squarely on the shoulders of the writer fan.

There are authors who don’t mind fan fiction, a few who actually encourage it, and many others who are solidly against it. Sometimes infringers get away with it because of what I call “author exhaustion.” Such authors are against fan fiction and other forms of infringement, but they’re tired of trying to assert their rights against the infringers. Trying to get infringing material taken down from YouTube, for example, has been compared to playing whack-a-mole.

We’ve all heard stories about how authors feel – about how Fifty Shades of Gray started out as fan fiction, or how a sequel to Catcher in the Rye resulted in the “fan” losing big time in a major lawsuit. The fan author is almost always the party at legal risk, and the misunderstood defense of fair use almost never applies to fan fiction. There was a rare case in which a retelling of Gone with the Wind from a black character’s point of view was held not to be infringing because of the important historical point that it made.

I have read online that J.K. Rowling reads and enjoys speculative fiction about Harry Potter and his fellow characters. I have also read that J.K. Rowling is highly protective of the Harry Potter brand and has threatened to sue fans for including Harry in their writing. I have seen her name on lists of authors who encourage fans to write about Harry and on other lists of authors who do not allow such use.

I know a number of authors who hate the idea of fan fic but have decided not to engage in this particular copyright war. I know of more than one author who have asked fans for plot suggestions from their readers, only to be threatened with lawsuits when they published a story vaguely similar to a reader suggestion. Well intentioned people can argue in circles about the legal and ethical risk. Fan fiction has become a volatile topic.

But what if the all that volatility and copyright debate can be avoided? Many  people seem to think that lawyers are impractical, and I acknowledge that we can often get distracted into theoretical debates. In this case, however, I am happy to offer a piece of  practical advice. It’s simple: focus your event on encouraging students to base their fan fiction on public domain works.

Literature of the past has often inspired new works. Classic stories could similarly spark the interests of the students attending your event. A famous example is West Side Story – a retelling of the Shakespeare classic Romeo and JulietKiss me Kate is based on Taming of the Shrew. Fairy tales (the original ones, not the Disney versions), fables, and folk tales are interesting to adapt. Bible stories are fair game. Even some of the Sherlock Holmes stories are now in the public domain. Classic novels such as Pride and Prejudice, A Tale of Two Cities, Little Women, Kidnapped, or Huckleberry Finn, are just a few examples of fanfiction possibilities. One word of caution: New fan fiction should be based on the original public domain work, not on another fan’s adaptation of that work.

Using public domain works to encourage fan fiction will let you meet the goal of your event by kicking that can of worms on down the road.

Many thanks to Sallie for lending us her insights and experience!
 

Tags: Copyright, Library Programming and Events, Public Domain, Fan Fiction

Topic: Usage of personal devices at risk of legal discoverability - 4/27/2020
When working from a remote location, and you do not have time or the technology to take work devic...
Posted: Monday, April 27, 2020 Permalink

MEMBER QUESTION

When working from a remote location, and you do not have time or the technology to take work devices with you, can using your private devices (cell phones, personal laptops,etc.) open your devices up to discoverability for any legal actions by the district or organization you are working for? An example would be using your personal phone for Zoom (if your laptop does not have the capability) for a CSE meeting or other business that may or may not contain sensitive information.

WNYLRC ATTORNEY'S RESPONSE

This is a great question.  An important question. And unfortunately, an all-too-infrequently asked question…

Because the answer is “YES.”

The risks and cautions and caveats related to use of employee-owned technology are endless, but here are the top five in my world:

  • Educators working with FERPA-protected information should not store it on their personal devices. 
  • Health professionals working with HIPAA-protected information should not store it on their personal devices. 
  • Librarians working with patron information should not store it on their personal devices. 
  • Any employee working with content restricted by contract should not store it on their personal devices.
  • Any employee handling sensitive data (HR, fiscal, trade secrets, business plans) should not store it on their personal devices.[1]

This is my education/not-for-profit/library top five, but I could go on and on.  And while the first layer of risk posed by this issue relates to legal compliance, privacy, and security, underlying those primary concerns is the risk that in the event of alleged non-compliance, or another legal concern, the employee-owned device the information is hosted on could be subject to discovery—even if it is personal property.

What is “discovery?”  Fancy lawyer talk for being subpoenaed or otherwise brought in as evidence.[2]

How does a library, museum, educational institution or archive—especially one operating ad hoc from home as a result of pandemic concerns--avoid these concerns?

Here is a 3-pronged solution:

Prong 1: know your data.

Every institution should know the information it stores, and sort it by sensitivity. From there, policy (or at least, “standard operation procedures”) should inform how such information is stored, and when/how it might get transmitted and stored (if ever) on a non-proprietary device.

Here’s an example based on the different types of information stored and transmitted by libraries:  The templates for the brochures about a library’s story hour will generally be regarded as much less sensitive than the files regarding employees or patrons.  So, while transmitting the story hour templates from an institutionally-owned computer to a personal machine might be okay, you would never transmit the payroll or employment history records that way.  Policy and training should support awareness of the distinctions, and while the brochure templates might occasionally need to be accessed on employee-owned tech, the more sensitive types never should be.

Prong 2: know your tech.

Every institution should ensure employees who must access and store information regarded as sensitive have a work-issued account and device(s).  An inventory of that technology should be maintained, so the institution is aware of precisely where the information stored on it will be.

Barring that (whether due to time or budget), networks and resources should be set up to filter out the security risk of content going to and from machines with less robust security.

Knowing your technology is set up to meet the demands of your institution’s more sensitive data is key.

But there’s one more thing…

Prong 3: Work to minimize risk, even if you can’t eliminate it.

Don’t let “perfect” be the enemy of “good.”

Stuff happens:

  • A presentation where suddenly you can’t access a work file, but engineer a work-around using a Gmail address;
  • An emergency situation where a sensitive file has to be opened on a home computer;
  • A jump drive with both your photos from a family trip, and proprietary information, is uploaded onto a personal laptop.

 

Everyone[3] has had an instance where convenience triumphed over security.  But that should be the exception, not the rule.

Even during times of emergency response and sudden adjustment (read: pandemic, or a crisis at the location of your organization), awareness of an institution’s data and technology can be used to minimize the exposure of more sensitive information to risky situations—even if sometimes, the end result is less than ideal.  Admitting your institution is not perfect just means that in less reactive times, it must use the budget process and long-range planning to further reduce the risk, as time goes by.

And that is how to reduce the risk of employee tech getting subpoenaed in the event there is a content-related legal claim.[4]

I am grateful the member asked this question, because particularly right now,[5] this is a really common issue (although it remains a serious issue in less panicky times). So common, in fact, that I call it the “chocolate in the peanut butter” question.[6]

Why is this legal concern named after such a delicious combo?  Because the imagery really isolates the problem.  When it comes to using employee tech, the convenience can be all too seductive.  It can be, in fact, deliciously easy.

One reason to avoid this, among many, is because that technology could be subject to discovery.

But good risk practices can minimize this risk (even if you indulge on occasion). When working from a remote location, if you do not have time or the technology to take work devices with you, use of private devices, if necessary, should only be for only the lowest-risk content.  Further, to minimize the risk of data loss, non-compliance, and security, such use should only be after a qualified professional has determined it can be done with no risk, and employees are trained to keep things confidential, and remove proprietary content after it is needed.[7]



[1] By “personal devices” I also mean personal email accounts, Zoom accounts, cell phones, tablets, laptops, DropBox folders, etc.  All content handled by employees for institutional purposes should be on institutional resources.

[2] How does “discovery” play out?  Lots of ways.  For instance, once I was defending a person whose personal laptop was subject to “discovery” in a civil case.  We didn’t surrender the laptop.  Normally, that might have posed a problem, but in this case, the laptop had been destroyed during a fight at a concert many years before.  We had to produce the old police report to show that the property really had been destroyed, and we weren’t just resisting discovery.

[3] Okay, this is hyperbole.  Hopefully it’s not “everyone” (I’m looking at you, hospitals, therapists, and the IRS).

[4] This answer does not contemplate the related but distinct issue of employer resources being use for personal purposes, or to harass others…which is the dark mirror of this issue.  But good practices in one regard will lead to good practices in the other!

[5] Largely unforeseen, 100% order to work from home impacting most businesses.

[6] …although when I am feeling dramatic, I call it “data bleed.”

[7] Bearing in mind the deleted content is often never truly deleted…and thus could still be subject to discovery!

 

Tags: COVID-19, Emergency Response, Employee Rights, Privacy

Topic: Elections and Executive Order 202.13 - 4/22/2020
[Note; the text of this question was edited to remove the precise dates of scheduled election and ...
Posted: Wednesday, April 22, 2020 Permalink

MEMBER QUESTION

[Note; the text of this question was edited to remove the precise dates of scheduled election and notice.]

Executive Order 202.13 states:

"Circulation, filing, and collection of any designating petitions, or independent nominating petitions for any office that would otherwise be circulated or filed pursuant to the Election Law, Education Law or any other consolidated law for any office commencing March 31, 2020 are hereby postponed.

Any school board, library board, or village election scheduled to take place in April or May of 2020 is hereby postponed until at least June 1, 2020, and subject to further directive as to the timing, location or manner of voting for such elections."


My question is: our legal notices had been published indicating an open trustee position and petition deadlines were due March XX (none were filed) and the budget vote is April XX. The question is do we have to do a legal notice that the vote is postponed and do new legal notices once we have a date? At the same time can we reopen the opportunity for people to file a petition to run for the board?

WNYLRC ATTORNEY'S RESPONSE

This question is from a school district public library.  Before answering it, I called the library director who sent it in.

Why?  Well, first, I wanted to introduce myself.  When a question has a lot of nuance and potential long-term ramifications, I like the member to know the answer comes from a real human being, not just a faceless attorney in Buffalo, NY.

Second, I wanted to check in on some details.  As other school district public libraries can attest to, the minutia of elections and budget votes can get very technical—as well as personal (and sometimes passionate). Getting those details right is both an art and a science.

And finally...I'm not gonna lie. Sitting alone in my office, with my treasured staff working from home, cut off from our normal busy but generally cheery atmosphere, I might have been a tad lonely.  Although anyone who works with me will tell you that half the time I am working in an introverted and ADD-infused cloud, four weeks of pandemic isolation have taken their toll. It was nice to call the member and connect at a human level.

How did the conversation go? I'll keep that part confidential.

Let’s take a brief aside to review the “Ask the Lawyer” model.

For members who use “Ask the Lawyer,” there are often two concrete results from the submission of the question:

The most common result is a post to the “Recently Asked Questions” (“RAQ”) site, which will contain generic guidance with no identifying details, so a general assessment of the legal issue can be shared with the largest possible impacted library community.

The second result, which doesn't occur for every question (but it's still pretty frequent) is a “confidential memo” just for the member and their council.  This “confidential memo” supplements the general input with confidential legal advice, and lets us address any unique details that pertain to only that member.

This is how the 3R’s maximize the resources (legal fees) used to get the legal guidance and advice, while also enabling timely services to their members.  And as I’ve reviewed, it is also how lonely attorneys can occasionally arrange a phone call to socialize about a legal need during pandemic-imposed isolation.

So, again…how did the conversation with the member go?  As I said, it’s confidential. But let's just say, when I call a librarian, I expect some good conversation, and this member did not disappoint.

And with that, here is my generic “Recently Asked Questions” input on this situation:

The first priority in assessing any matter related to an election or budget vote is to consider any past extraordinary details—such as a previous controversy or contested procedures.  As they say in the “Music Man”: You gotta know the territory.[1]  If there has been any past issue or hostility, planning to navigate a postponed election with those sensitivities in mind is wise.

Next (and this is essential), is setting up to ensure consistent and well-communicated support about the election from leaders and stakeholders: in this case, the board, the staff, the library’s system, the local school district, and (even if the election is not in their purview) the county Board of Elections.  This includes communication about the postponement, and the re-set proceedings.

Why is this a critical step? When you're sailing into uncharted waters, it's good to sail with a fleet, and to cross-check each other’s navigation.

And finally (but critically), before making any announcements or plans, check your charter, bylaws, and date of formation.  Some libraries will have provisions in them relevant to this situation, and per sub-section 8 of Section 260 of the NY Education Law (controlling school district public library elections), a library chartered before April 30, 1971 may have a bit more leeway in these matters, as a matter of law.  Further, your library may have its own notice requirements or procedures, on top of the base-line legal requirements.

Now, as to the present circumstances, let’s parse the relevant content of Executive Order 202.12:

Circulation, filing, and collection of any designating petitions, or independent nominating petitions for any office that would otherwise be circulated or filed pursuant to the Election Law, Education Law or any other consolidated law for any office commencing March 31, 2020 are hereby postponed.

Any school board, library board, or village election scheduled to take place in April or May of 2020 is hereby postponed until at least June 1, 2020, and subject to further directive as to the timing, location or manner of voting for such elections.

As if this whole exercise isn’t going to be complicated enough, the first thing I need to note is that, under Education Law Section 260 (sub-section 7), school district public libraries have between April 1 to the end of June to hold their elections.  So just be aware: EO 202.13 did not delay all scheduled elections (only those set for “April or May).  So, for this answer, we’ll only address elections set for April or May.

Next, we need to check in not only with Education Law Section 260, but its companion Section 2018, which addresses the filing of petitions:

Each petition shall be filed in the office of the clerk of the district between the hours of nine a.m. and five p.m., not later than the thirtieth day preceding the school meeting or election at which the candidates nominated are to be elected. [emphasis added]

And of course, Education law Section 2004, which requires notice be given:

“…at least forty-five days before said meeting, in two newspapers if there shall be two, or in one newspaper if there shall be but one, having general circulation within such district. But if no newspaper shall then have general circulation therein, the said notice shall be posted in at least twenty of the most public places in said district forty-five days before the time of such meeting.”

So, with all that, what are the answers to the member’s questions?

First question: Do we have to do a legal notice that the vote is postponed and do new legal notices once we have a date?

My assessment is that the Executive Order is sufficient notice that the vote is postposed.  However, once the proceedings can be re-scheduled, a library will need to publish new notices. Further, it is important to note that the EO hints there will be “further directive as to the timing, location or manner of voting for such elections” coming from the Governor (or perhaps guidance from NYSED, upon direction of the Governor).

I imagine such “further directive” will take into account that typically, libraries must give at least 45 days’ notice.  But in any event, right now, school district public library elections are in a holding pattern, and the boards and leadership need to stay alert for further directions on next steps.

That said, a discussion with stakeholders, to ensure your library is ready to set its proceeding when the time comes, might be wise.  This could include a notice about the postponed proceedings, and direction as to where to look for next steps.

Here is a template:

Consistent with Executive Order 202.13, the [NAME] Library’s elections and budget vote are postponed, and the library is awaiting further direction from the state regarding rescheduling.  The Library will publish further notice and information to the public regarding the election as soon as we are able.  Questions about elections in [COUNTY] County can be directed to the [COUNTY] County Board of Elections at (###)###-####.

Second question: Can we reopen the opportunity for people to file a petition to run for the board?

This is fascinating.

The way I see it, 202.13’s “postponement” of elections means the thirty-day deadline for filing a designating petition will automatically be re-set to thirty days before whatever the new election will be.  This is because under Education Law Sections 260(8) and 2018, the deadline for filing is not a fixed date, but a deadline calculated based on the date of the election.  So, I think being ready to ask people to step up and get designated so you have sufficient nominees—especially if there were none duly submitted by the last deadline—is a good idea.

Of course, right now all collection and filing of designating petitions are also “postponed” (see the first excerpted paragraph of the Executive Order).   And the deadlines for petitions are going to be tough to hit before the July 1 statutory deadline. And at some point, there may be a decision that previous submissions will not be re-opened.

The next “directive” on this issue will have to tackle the issue of meeting the notification and petition filing deadlines, as well as the implications for those libraries that were in the notice period, and those that were not.

This is where conferring with the local Board of Elections officials, and the school district, even if they do not oversee your library’s elections, will be so critical.  They will have the insight and probably some inside information to share about how this will be configured.  And for those libraries with a lawyer, this is the time to involve them (before final decisions are made).

To put this in context, right now although critical, the election is probably only one of the numerous high priority issues your library board is considering. First and foremost is likely the on-going well-being of the library and its role in the anticipated recovery of your community.

With that in mind, I suggest any board facing this situation also review the guidance on using a crisis management for public libraries, and factor the monitoring and messaging around this issue into their response plan.

If and when we get an update or “further directives,” we’ll post any update to this answer.



[1] Has anyone ever done a poll to see how many librarians have been serenaded with the “Marion,” song?  And taken a further poll to see if it is now regarded as harassment?

 

Tags: COVID-19, Emergency Response, Executive Order, Public Libraries, Elections

Topic: Circulating telehealth kits and disclaimers - 4/17/2020
Our library is considering adding a circulating telehealth kit to our collection for patron use. W...
Posted: Friday, April 17, 2020 Permalink

MEMBER QUESTION

Our library is considering adding a circulating telehealth kit to our collection for patron use. With the pandemic and telemedicine being the current norm, the goal is to fill a perceived need within our community. The proposed kit would include medical supplies including a blood pressure cuff, pulse oximeter, a forehead thermometer, and a bag to hold the equipment. My question concerns any disclaimers that would be necessary to add to the kit as well as liability issues for the library if we were to implement this.

WNYLRC ATTORNEY'S RESPONSE

I love learning about new assets communities can access through their library.  Tools, ties, seeds, toys…this list is endless.

This is the first question “Ask the Lawyer” has received about health monitoring devices and medical supplies, and the member has rightly pointed out that there is a lot to consider in such a venture.  How can such lending be done with an emphasis on safety, and limiting legal risk for a library?

But before we delve into disclaimers and liability (yes, a disclaimer is going to be needed), let’s confirm some terminology.

In New York, Telehealth is defined[1] as “the use of electronic information and communication technologies to deliver health care to patients at a distance.”

Meanwhile, Telemedicine is defined[2] as “two-way electronic audio-visual communications to deliver clinical health care services to a patient at an originating site by a telehealth provider located at a distant site.”

In other words, Telemedicine is also Telehealth--but Telehealth is more than Telemedicine.  “Telehealth” is like the largest figure in a Russian nesting doll set, with Telemedicine (audio-visual communication of services) contained within—but separate.

The equipment being considered by the member are equipment for Telehealth, not the transmission of Telemedicine.  This has a lot of ramifications for liability and legal compliance, so it is important to take care in making the distinction from the start.

When considering the cataloging and lending of equipment for Telehealth, there are two other critical terms:

Store-and-Forward Technology, which is defined[3] as “asynchronous, electronic transmission of a member's health information in the form of patient-specific pre-recorded videos and/or digital images from a provider at an originating site to a telehealth provider at a distant site.”

…and…

Remote Patient Monitoring, which is defined[4] as “the use of digital technologies to collect medical data and other personal health information from members in one location and electronically transmit that information securely to health care providers in a different location for assessment and recommendations.”

“RMP,” as it is also called, includes the collection of information such as vital signs, blood pressure, heart rate, weight, blood sugar, blood oxygen levels and electrocardiogram readings; the type of monitoring the devices in the member’s question are about.

Okay, with that established…

YES, in lending such equipment, there are some concerns about risk and liability.  YES, a disclaimer is a good idea. And there are a few other considerations, too…related to procurement, cataloging, and lending (but in the end, all relevant to the issues of risk and liability).

How does a library address those considerations?  There are many details, but here is a process to systematically take them on:

Step One:  Make it incremental

What do I mean by “incremental?” 

I mean, instead of cataloging a kit of equipment as a single item, each item in the kit (and perhaps the bag itself) should be cataloged as a separate item.  That way, when the patron borrows the bag and the equipment, they will borrow them as separate components…the way another patron might check out the entire “Harry Potter” series and a DVD of “Goblet of Fire.” [5]

Why? Because each piece of health-related or medical equipment comes with its own set of legal terms (warrantees, disclaimers) and operating instructions.  By lending that equipment on a piece-by-piece basis, rather than in kits with multiple components checked out as a single unit, a library will be able to use that level of detail to take the liability-limiting and risk management steps I describe below.

 

Step Two: Know the devices

The member’s question lists the following telehealth equipment: “…a blood pressure cuff, pulse oximeter, a forehead thermometer, and a bag to hold the equipment.” 

This list makes sense, since “remote patient monitoring,” as described by the New York Department of Health,[6] uses instruments to measure vital signs, blood pressure, heart rate, weight, blood sugar, blood oxygen levels and electrocardiogram readings, so that information can be used to provide telemedicine.

How can a library “know” the equipment?  Before a Telehealth device is added to a catalog, a library should a) confirm it is commonly used for telehealth, b) confirm it meets your library’s procurement requirements; c) confirm that the precise device is registered with the FDA, and d) use the FDA site to confirm it has not been recalled.

The best place to do this is: https://accessgudid.nlm.nih.gov/.

 

Step Three: Plan to include the instructions

If the device comes with instructions, ensure the physical copy of the instructions is lent along with the device,[7] and generate a link or QR code so the instructions (in an ADA accessible format) can easily be found online.

This is so the borrower is empowered to use the device per the manufacturer’s instructions.  This is a key component of limiting the risks associated with lending devices of any kind—including health-related equipment.

 

Step Four: Set the Requirements for procurement

In addition to the Procurement Policy your library must follow, the following requirements should be in the RFP or RFQ for each device:

  • Will not transmit data OR any data transmission capability the device has meets current transmission requirements for telehealth;
  • Any digital memory the device has must be capable of deletion with no ability to recall the prior data;
  • Any device supplied must be registered with and thus listed on the FDA’s medical device database (and searchable by name or number);
  • There should be no parts intended for insertion into the body;
  • There should be no need for replacement parts;
  • There should be clear instructions for cleaning the device between uses, and those instructions should be a process staff can perform safely;
  • The purchasing decision should consider if/how the product is powered (battery, charging station) and plan to support that during lending;
  • There should be no safety recall.

 

Step Five: Be ready to continuously monitor for recall

This is critical—and why any device included in the collection should be registered with the FDA.  Prior to lending (every time), it should be confirmed at https://accessgudid.nlm.nih.gov/ that the device has not been recalled by the FDA.

 

Step Six: Confirm Functionality after Every Return

This, too, is critical.  Prior to lending (every time), it should be confirmed that the device is functioning properly, as described by the product’s instructions.

 

Step Seven: Consider bringing in a ringer

Prior to making the equipment ready for lending, consider launching the collection in connection with a public health partner in your community.

Why?

The ability to borrow a thermometer, or a blood pressure cuff, or pulse oximeter, could be a game-changer if a person’s own equipment is stolen, damaged, or lost.[8]  For people in rural areas who must order equipment and wait for delivery, it could facilitate the immediate start of Telehealth care, or ensure continuity of care while a replacement is on its way.  This project you are considering could save lives.

That said, people should only use telehealth equipment in connection with ongoing care from their health care provider. 

I am well aware of the cruel irony in this caveat.  Not all people have access to reliable health insurance or ongoing healthcare,[9] and thus might need to DIY their care with telehealth devices. But the concept of telehealth ONLY works if it is in conjunction with a health care provider. 

No one should be borrowing a library’s telehealth resources to use them in a health care vacuum.

This is where a public health partner could come in.  If the equipment is linked to information about a clinic or other local health care provider in your region who can help a patron connect to care, you can mitigate this risk, and urge the proper use of Telehealth equipment, while respecting the privacy and autonomy of patrons. 

This awareness should be part of your disclaimer.

 

Step Eight:  Yes, you should include a disclaimer

…and it is on a device-by-device basis.

Of course, any disclaimer should only be adopted after review by your library’s attorney AND insurance carrier.[10]  But here is a place for them to start:

“Prior to being borrowed, this equipment has been confirmed as not under recall by the United State Food and Drug Administration (“FDA”), and to be functioning per the manufacturer’s specifications. 

However, the [NAME] library cannot confirm that the equipment will remain functional or unrecalled while it is on loan.  To determine proper functioning, please refer to the instructions, and check the recall status of the device at at https://accessgudid.nlm.nih.gov/.

This is borrowed equipment.  You must follow the cleaning directions in the instructions before using this equipment. 

Please review the instructions and notify the library immediately at (#####) in the event the equipment is not functioning as the instructions describe. 

Use of this equipment should only be in conjunction with service from a licensed health care provider familiar with your medical needs. 

In the event you do not have access to a licensed health care provider, call [community health partner] to inquire about health care in the [NAME] region.  The library has confirmed that this resource can assist you in finding care.

In the event of a medical emergency, dial 911.”

 

Step Nine:  (If You have Room) Let them Know Their Rights

In the State of New York, patients being treated through telemedicine have certain legal rights. [11] If feasible, it would be good to foster awareness of these legal rights when lending telehealth equipment.  

Here is a sample notification:

This equipment is for temporary use when being treated via Telehealth.  It should only be used in connection with service from your health care provider.

If you are being treated by telehealth in New York, here are your rights:

Any practitioner starting a course of telemedicine should provide a patient with basic information about the services that they will be receiving via telehealth, and obtain their consent to participate in services utilizing this technology. 

Telehealth sessions/services may not be recorded without the member's consent.

Patients have the right to refuse to participate in services delivered via telehealth and must be made aware of alternatives and potential drawbacks of participating in a telehealth visit versus a face-to-face visit.

Patients must be informed and made aware of the role of the practitioner at the distant site, as well as qualified professional staff at the originating site who are going to be responsible for follow-up or ongoing care.

Patients must be informed and made aware of the location of the distant site and all questions regarding the equipment, the technology, etc., are addressed.

Patients have the right to have appropriately trained staff immediately available to them while receiving the telehealth service to attend to emergencies or other needs.

Patients have the right to be informed of all parties who will be present at each end of the telehealth transmission.

Patients have the right to select another provider and be notified that by selecting another provider, there could be a delay in service and the potential need to travel for a face-to-face visit.

 

Step 10:  Plan and budget to clean the Equipment Upon Return

However the instructions state the equipment should be cleaned, it must be cleaned (every time).  Developing a protocol to do this safety is something your library must consider during both procurement and budgeting for the staff time needed to lend and maintain the equipment.

 

And that’s it! 

Okay..I admit “it” is “a lot.”  The big take-away here is that, in addition to considering liability concerns and a disclaimer, your library must ensure it has the staff, storage, and maintenance capacity to engage in appropriate risk management.  That will take some planning, and some resources beyond simply buying the equipment.

That said, I suspect it will be worth it.[12]

I hope a worthy initiative like this can find a strong community health partner in the member’s region.  With a health care supporting your staff in selecting the right equipment, choosing the best brands, and pushing out information about patient rights and public health, this program could truly save lives.

Please let me know how it goes.[13]

 



[1] NYS Public Health Law § 4406-g (2).

[2] NY CLS Pub Health § 2805-u 1.(d).

[3]  NYS Public Health Law § 2999-cc, 6.  PLEASE NOTE: if your library is considering providing equipment to assist with “store-and-forward” a rigorous ethics, security, and HIPAA compliance check should be part of procurement.

[4] NYS Public Health Law § 2999-cc, 7.

[5] In Harry Potter, they practiced telemedicine via the Floo Network. (P.S. If you think I threw in this Harry Potter reference to enliven a dull list of footnoted citations, you are right!).

[7] I appreciate that this may involve the use of a laminator or other cool process libraries use to unnaturally extend the life of print media.  Wait until you see Step Ten.

[8] Or if the patron is in a coverage dispute with their carrier.  I have had some experience with this; not fun.

[10] Your carrier should also be apprised of the undertaking, in general. They may even have some helpful tips for you in developing the lending program.

[11] As set forth in the NYSDOH guidance document found on April 14, 2020, at https://health.ny.gov/health_care/medicaid/program/update/2019/2019-02_speced.htm#definition, with citations to relevant laws and regulations.

[12] As I write this, the state is still on “PAUSE” due to COVID-19.  The use of telehealth during the time has SOARED.  And reading projections for the future, it will only increase.

[13] Adams@stephaniecoleadams.com or call at (716) 464-3386.

Tags: COVID-19, Disclaimers, Emergency Response, Public Health, Telehealth

Topic: 501c3s and applying for CARES PPP - 4/16/2020
We are a library that is a hybrid government agency (special taxing district) and a 501(c)3. Does ...
Posted: Thursday, April 16, 2020 Permalink

MEMBER QUESTION

We are a library that is a hybrid government agency (special taxing district) and a 501(c)3. Does being a 501(c)3 override local gov’t agency status as far as applying for the CARES PPP? We've reached out to several attorneys and even the SBA and we get opposite answers. Help!

WNYLRC ATTORNEY'S RESPONSE

I have spoken with many public libraries about their experience considering and applying for the different aid packages currently being offered in the wake of the pandemic.  I also have the benefit of working with an associate attorney who once worked for the SBA, closing disaster loans.

So, in addition to the guidance being offered by New York State Library Development and the New York Library Association, which I encourage all libraries to pay ongoing attention to, I have two things to add:

First, as Mr. Rogers would say:

Remember, you are special.

Listening to the different experiences, and most importantly, reading the law, regulations and guidance, I can say that each and every library, library system, and resource group in the state of New York is differently situated under these aid packages, including PPP.

The is because, while the State of New York has created uniform frameworks for fostering libraries, within those frameworks, there is great room for self-determination and autonomy.  That “room” means that every library has a different business structure, banking arrangement, budget profile, cash flow situation, grant and contractual obligations, approach to payroll, personnel policies, union obligations, commitments to the community, and plan of service. 

This array of approaches and obligations create a unique identity that will be uniquely impacted by the current crisis.

Which brings me to my second point, which is based on my favorite baseball phrase:

Run it out.

Run.  It. Out.

What does that mean?  For those of you who don’t play baseball, it means…

No matter how soft a pop fly you just hit--no matter how easily the pitcher just snatched the ball out the air and is sending it hurtling to first—once the ball is in motion, drop your bat, and run the bases.  Even if you think you can’t possibly make it home.  Even if you are pretty sure you’ll be tagged out before you take 5 steps.  Even if you suspect the catcher is laughing at you.  If your library’s budget or ability to operate is being negatively impacted by COVID-19, your board owes it to the library and its community to explore every avenue.  That includes PPP, and other emergency lending.

“Running it out,” of course, should not happen in a vacuum.  It should happen as part of a well-considered, diverse plan for dealing with the current crisis (to that end, see my “Ten Things” column about boards and emergency response).  But PPP and other aid should not be off the table until…they’re off the table. 

To do this, be ready to assess the library’s fiscal position.  Are you facing a pinch now, or more worried about next year?  You also need to work closely with your bank, and be ready for both of you to closely assess your special identity (charter, bylaws, policies, payroll, obligations, cash flow) vis-à-vis the SBA’s rules for application.[1]

For some of you, your library will get tagged out before you round first base.  Your bank may decide you don’t qualify, or your board may even assess that that PPP or other emergency relief aren’t for you.  But others of you just might make it home.

And if even only 5 libraries in the State of New York qualify for PPP and are able to help their communities recover from the impacts of a pandemic, because they did everything they could to get the aid they need to function, then the effort will be worth it.

Does your library qualify for PPP?  If you need it to stay in the game: run it out. 

 

Tags: 501c3, COVID-19, Emergency Response

Topic: Using article from personal CEU subscription - 4/13/2020
I have an instructor who asked if it would be violating copyright infringement if she shares artic...
Posted: Monday, April 13, 2020 Permalink

MEMBER QUESTION

I have an instructor who asked if it would be violating copyright infringement if she shares articles from her personal Continuing Education Units (CEU) account subscription with her students as class reading assignments.

WNYLRC ATTORNEY'S RESPONSE

NOTE: This question arose during the scramble for online resources during the nation’s response to COVID-19.  Click here for a full array of COVID-19-related questions about library operations and copyright matters impacted by pandemic response.

It might be copyright infringement, but there is another concern: it could also violate the terms of the contract (the subscription agreement) between the teacher and the CEU provider.

The problem is that not only do such subscription sites have basic, contractual terms governing the actions of all subscribers, but the individual articles may have different (less or more restrictive) terms, too.

For example, I tooled around IACET (a major CEU provider)’s website and found a wide range of copyright and licensing terms.  In some places, IACET had a very strict license that bars sharing materials.  In other places, I found language encouraging IACET’s leadership to adopt language promoting the sharing of articles, particularly those that reinforce IACET’s standards and values.

My best guidance must be: the teacher should evaluate their personal subscription agreement and terms for each article on a case-by-case basis.  For instance, it looks like IACET has taken a variable approach, so some content might actually be free to use.  Other material might be licensed for purposes of instruction—but only to the institution holding the license.  Each CEU provider will differ.

Only by reviewing the teacher’s contract with the provider, and the relevant content terms, can this question be answered.  And in these difficult times, calling them to ask for permission for the duration of the state of emergency might work.

Barring that, I am always very wary of any solution to educational content needs that relies on the individual instructor, rather than the institution (who, among other things, has better insurance), to take risks, so hopefully the school can assist with getting the right content, or finding a solution under copyright Section 108,[1] 110,[2] or 107.[3]

 

 



[1] Exceptions to infringement for libraries.

[2] Exceptions to infringment for educators.

[3] Fair use.

Tags: Copyright, COVID-19, Digital Access, Emergency Response

Topic: Top 10 Actions a NY Library Board Can Take to Foster a Library's Mission and Ensure its Viability During the COVID-19 Pandemic crisis - 4/2020
...
Posted: Thursday, April 9, 2020 Permalink

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

A note from the author:

When I was the in-house attorney at Niagara University (2006-2017), I had the privilege to be trained in the National Incident Management System’s Incident Command System (ICS), the nation’s system for organizing crisis response.  At NU, I also co-authored the Pandemic Response Plan, and along with the IT Department, developed a system for not-for-profit “enterprise risk management” (addressing mission-threatening risks). 

Through that work, I gained familiarity with the mechanics of pandemic response and recovery, and managing related issues. 

Now, in collaboration with WNYLRC and other regional library councils, my law firm provides the “Ask the Lawyer” service to libraries.  On a regular basis, I answer questions from libraries about board operations, property issues, and employee issues.  Through that work, which I consider a great privilege, I have gained familiarity with New York’s libraries (although there is always more to learn), and the strong, diverse people who run them.

In addition, on a regular basis, I call upon the excellent resources from New York’s robust community of legal, regulatory, and career professionals, including the invaluable “Handbook for Library Trustees in New York State.”

This “Top Ten” guidance is the distillation of all that experience, combined with what I know about the COVID-19 situation as of April 7, 2020.  I hope it is helpful.  If you identify ways to make it better, or clearer, or easier to implement, please write me at adams@losapllc.com.

During a pandemic, all we can do it our best…on limited time.

I wish you strength as you lead your library through this crisis.

--Cole

 

So, what are the “Top Ten Actions” a library board can take to foster a library’s mission and ensure its viability during the Covid-19 pandemic crisis?  Here you go:

#1.  Commit for each member to perform board work no less than weekly

Why?  As you will see in the Remaining 9 items, even if your library is closed or operating at less than full capacity, there is a lot you can do.

 

#2.  Set a “Crisis Response Goal” defining how your library will handle the current emergency and eventual recovery period.

We all know the COVID-19 pandemic, and our communities’ recovery from it, will not be over in April… or May…or June.   It will affect us long beyond 2020.  The impact will be deep and far-ranging. 

Knowing this, we also know that a community library, open to all, will be a critical resource for every member of your community in the times ahead.  With that in mind, defining how to preserve, promote, and connect that resource to its area of service is this critical--even at this time of reduced operations. 

How do you do that?  It starts with a simple statement by your board's leadership, known as a “Crisis Response Goal.”

How does a board develop a Crisis Response Goal?  By envisioning and articulating what it wants to do and be throughout and after the crisis.

What does that look like?  A good Goal articulates and reinforces your library's unique role in the community, and sets forth broad ways it will fill that role during this unprecedented time (the Goal is not where you worry about minutiae).

An example Goal is:

During and after the COVID-19 pandemic, The Library will serve the community, fulfill its mission, and meet the goals of its plan of service by meeting the public's need for reliable information, providing access to critical resources, and serving as a hub of community organization.”

The key is to focus on what you will do (not how you will do it).

The template to create your library’s Crisis Response Goal is:

During and after the COVID-19 pandemic, The [NAME] Library will serve the community, fulfill its mission, and meet the goals of its plan of service by __________________________, ______________________________, and .______________________________________.”

And that is your Goal…your library’s statement to the world about what it will be and do through this crisis. 

The remaining items on this list are how your Board will rally your resources to make the Goal a reality.

 

#3.  Use a “Crisis Response Team” approach

At this time, an effective board is concerned about numerous things: The safety of the library and the community it serves, the fiscal impact of the current crisis, the reduced or eliminated operations of the library, its relationship with its community, making appropriate decisions about employees, the stewardship of the library's physical assets, and how to meet its plan of service.

No board can meet as a single body and address all of these things effectively, even if they meet once a week. There would be too many voices at the table (or too many people being seen and not heard).  There would be no room for assessing facts and novel thinking.

How does a board handle this multi-faceted crisis situation? Create teams.  

What will those teams do?  Well, at least one person who can navigate the OSHA website should have primary and consistent responsibility for safety. At the same time, people with the fiscal skills and experience must gather to assess the immediate and long-term impact of the situation on the library's finances. Meanwhile, another group with business and HR skills and experience should focus on mission and plan of service (“operations”). And finally, a person or small group with communications skills should have primary responsibility for thinking about public relations and outreach to the library's primary stakeholders.

Finally, one or two people should play the role of team leader.  The Team Leader’s primary role will be connecting the work of each group, and the professional staff, to enable critical decision-making and developing a response plan.

The Team Leader will also ensure the library director is supported as they continue their duties under a time of duress, that the director is positioned to contribute to the work of the teams as needed, getting them vital information, and collaborating on the formation of the library’s strategic response.

The rest of this guide is about creating teams to use this approach.

 

#4.  Assess your board’s capacity, and reinforce it where needed

When considering a crisis response team approach, which organizes a board into small sections working towards the same Goal, it is important to be honest about your capacity.  As a group, you need to take stock of your board.

Many of the skills and attributes that make someone a valuable board member in non-pandemic times (fund-raising, deep knowledge of books and culture, ability to rally volunteers) might not be the only things needed during the initial phases of a pandemic response. 

Further, many boards, faced with this crisis, may be feeling overwhelmed. Unless a person has guided a not-for-profit organization through a crisis such as a fire, major PR event, or disaster such as 9/11, the experience of the average board member might be tested by the current situation.

That is OK. We are all feeling tested.

The good news is, if your board does not have the capacity to assemble teams with the experience listed in #3, your board is allowed to add non-board members to non-voting committees, or to invite them to meetings as guest advisors.  Now is the time to bring on a few “ringers.”

How can that be done?

If you don't have anyone on your board who feels up to the task of considering safety first at all times, invite someone on who has experience with OSHA regulations or standards from the New York Department of Labor.

If your fiscal team doesn't have access to a seasoned accountant or CPA who can assess the current budget, run fiscal projections, and help you develop models for your library's financial options, see if you can find one who will donate some time to your library.

If your board does not have someone experienced in business, employee relations or human resources, and you need to take action regarding contracts and employees, bring a new person on.

And if your board doesn't have someone with public outreach skills, perhaps you can find someone with appropriate experience from within your own community networks—or reach out to someone new.

As you assess your board’s capacity and look to shore up any needs during this time of pandemic response, remember this: this is a special time.  Some people may be working more than ever, and not able to help out more, or at all…while others are finding themselves under-occupied.  Small business owners on your board may not be able to help at all.  Others may be on unemployment and able to step into the gap.  ALL OF THAT IS OKAY.

If you identify a gap in your board's experience, it may be that you can fill it just by asking. The important thing is to be honest about what your board can do, and not fudge it.

 

#5. Form your board’s Safety Team

The COVID-19 pandemic is causing incalculable impact on business operations and the functions of day-to-day society. However, it remains first and foremost a public health crisis. That is why, if you choose to use a crisis response team approach, the first team your board should appoint is the team responsible for safety.

What is the “Safety Team’s” role?

When the full board is considering a team's recommendation, the safety team’s role is to ensure the board fully considers the safety implications of any one course of action.

For instance, if there is a decision to have one library employee check the mail every day, the safety team is asking: Is this safe? Is there a way it could be made safer?

If your Safety Team has the time, they should also be available to your other teams during the later phases of crafting a recommendation, so work is not wasted.  In addition, your library director should at least be a consulting member of this team, since they are in charge of the staff, and will be responsible for putting emergency procedures into effect.

Your Safety Team will spend time on public health resources such as the CDC website, the OSHA website, and will monitor your county health department's recommendations and advisories. In any action related to your library's response, they are only thinking about safety and the health of the community.  This includes the health and safety of employees, volunteers, and the board.

While other members of your board, on other teams, may be worried about fiscal viability, public relations, or operations, your Safety Team is always putting safety first. This includes planning for the safety and well-being of your community when your library is contributing to your community's recovery.

The Safety Team takes on this primary responsibility so the other teams can focus on their roles, while the full board knows it is set up to always put safety front and center.

 

#6. Form your board’s Fiscal Team

The current crisis is going to hit public libraries in a variety of ways, and for many, the fiscal hit will be especially hard.

While some communities will immediately rally around their library as a critical central resource, others may use the crisis as an opportunity to seek budget cuts and de-funding. Libraries that have relied on fines and hold fees as revenue sources will find those sources diminished. And always, there is the question of how to compensate and retain staff at this unprecedented time.

This is why appointing a Fiscal Team with the skills to assess the current situation, run projections, reach out to fiscal sponsors, and develop plans for the financial stability of your library is key. 

While this group can be small, consisting of perhaps two or three people, it must be mighty. As mentioned in #4, at least one member—who might perhaps be an invited advisor or non-board committee member—should have seen a not-for-profit institution through a fiscal crisis in the past.  You will need this person’s wisdom and perspective.

The immediate tasks of this group will be assessing the impact of the situation and developing a short-term plan for financial viability. That short-term plan shouldn't go much further than the end of April or mid-May. After that, the plans will need to consider various contingencies. For this reason, the group should include, or regularly invite, the library director.

Another immediate task is assessing the stimulus money your library may be able to rely on. For some libraries, this will include the Payroll Protection Plan, and other aid. For others, it may be collaborating with government funders to ensure some portion of government aid will be allotted through your government to your library.  Identifying these options is something that group should focus on throughout mid-April.

It is this last area—identifying options and contingency plans-- where the team approach becomes truly valuable. While your Fiscal Team will be assessing your library's needs and the possible ways to obtain those needs, the Team Leader and/or Outreach team will be forging connections with funders to coordinate identified assistance that is needed.   Between the team leader and the Fiscal Team, it is important to determine who will meet with municipal fiscal authorities on a regular basis (something I encourage, if your library is dependent on a tax levy from a sponsoring municipality). 

It is the job of the Fiscal Team to provide solid, reliable, and situationally-adjusted financial information and options for the other teams (especially Operations) to work with. 

 

#7. Form your board’s Operations Team

A bit of background on this one…

The state of New York has always encouraged local autonomy for libraries. This is a wonderful thing that means wherever you go in New York, there are unique and special libraries waiting to be discovered.

This also means that every library in our state is facing a slightly different situation when it comes to pandemic response. Rural libraries are facing different challenges than urban libraries. Suburban libraries in one county will face different challenges than suburban libraries in the next county over. And this isn’t just about location—it’s about service.  While one library might be a beloved source of donated food, another may be the community's lifeline to certain key services.   Another library may be a vital source of senior programming, while in another community, it’s the toddlers that will be missing out.

Considering this diversity, there is no one-size-fits-all package for developing a team that considers a library’s operations…you are all just too darn unique. 

So with that background, what is the role of an Operations Team during the crisis response? It considers the critical operations of the library, and develops plans to adopt or carry on those operations during a time of crisis response and—critically--recovery.

This starts with an inventory of operations. 

For instance, it is the responsibility of the Operations Team to consider the impact of the situation on and develop solutions for staff at this time.  And while this work must be informed by both the Safety Team and the Fiscal Team, the Operations Team is the one that should have the human resources or labor law experience to consider how to continue or adjust the employment terms of the staff at this time period. 

Another task will be to review the routine activities of the library, and determine which ones will be suspended and which ones will be adapted and carried forward into the present situation, and how that will be rolled out.

It is important to emphasize that the Operations Team will not make these decisions, but rather, informed by the Goal, and with the input of the director (just as with any operations planning process), will bring forward well-developed recommendations for the consideration of the full board.

Many of the items the Operations Team will consider will have implications for safety. The operations team should do their best to build consideration of safe practices into their recommendations, and only then have things reviewed with a fresh eye by the Safety Team.

Operations, because its span will be large, might be the largest team, and for reasons of efficiency, may wish to divide into sub-teams, and will require the most input from the director, who may also bring in further input from the staff. One way would be for some members to take the lead on operations during the emergency, while the rest develop ideas about how the library can help during recovery.  

 

#8.  Designate your board’s Crisis Response “Team Leader”

The purpose of breaking the responsibilities for a crisis response into teams is to allow work to happen with deep focus and great frequency. It is also to ensure that quick, decisive and well-informed action is not bogged down in the inefficiencies of a large group.

That said, a library's board must continue to function as a board, and per the bylaws that govern it.

Pulling all of these considerations together—effective use of teams, adherence to bylaws and policies—is the job of the Team Leader.

A natural fit for the Team Leader might be your library's board chair.  However, if your board chair is a CPA and is best suited to doing the work of leading up the fiscal team, or will be spending the bulk of their time coordinating necessary aid with representatives from municipal government, it is appropriate to consider designating another board member as Team Leader.

What does the Team Leader do? The Team Leader pays attention to what is happening with each and every team, and connects and pulls their work together as needed. They also identify when matters are ready to be presented before the full board for discussion and a resolution, and ensure the work of the teams is done in healthy cross-collaboration with the work of the director.

This role does not have to be played by the board chair.  This role should be played by someone who has the capacity to connect regularly and meaningfully with each team, who understands the proper dynamic between a board and paid staff, and who has the skills to identify when a matter is ripe for full board consideration.  They should know the bylaws and library policies, and make sure the use of the team structure does not depart from them.

A good team leader, at this time, also needs to be accessible through phone, e-mail, and video conferencing.  If a person can’t reach out in multiple ways, they might not be the best person to lead the teams.  As with everything else, THIS IS OKAY.  Regardless of the role a person plays, it is all part of your fiduciary duty to support the best interests of the library.

(P.S. on that last part: there is nothing wrong with a Team Leader designating an out-of-school child or grandchild as the “Library Crisis Response Team Leader Tech Support,” something that would look good on a future college or job application!  Just make sure they can take the role of setting up calls and meetings seriously.  My 15-year-old has been pressganged into helping with many a meeting.).

 

#9. Designate your board’s Public Relations Team

The impact of this crisis on your library will also have a huge impact on your community. The energy of those who support and are supported by your library (the “stakeholders”) need to be channeled to mitigate that impact as much as possible.

How do you harness that energy?  Just like your Operations Team, the role of your PR Team is going to change depending on the unique situation of your library. However, the overall goal of any PR Team is to ensure that the “Goal” of the library, and the things it is doing to achieve that Goal, are articulated to the stakeholders in an accessible, regular and reliable way. 

For example, if your Goal is:

During and after the COVID-19 pandemic, The Library will serve the community, fulfill its mission, and meet the goals of its plan of service by meeting the public's need for reliable information, providing access to critical resources, and serving as a hub of community organization.”

It is the job of the PR Team to get that message out to stakeholders in a way that will be heard. This doesn't mean just repeating the goal everywhere verbatim (a good Goal never sounds very sexy).   Rather, it means getting the message out in a way that will be actively observed.

For example, a plain-language way to promote the Goal above would be putting a poster on the front of the library that says “Our doors are closed but our librarians are here for you!  Find us at @@@ or call ######!” Things like this are the job of the PR team (unless your library is so vast you have in-house PR, in which case, I doubt your library needs this “Top Ten” list in the first place).

It is also the job of the PR team to harvest all the information about how the library is reaching out to the public at this time.  That way, when the time comes for budget review and fund-raising, your library will have a solid archive of examples about how it is invaluable. For this reason, consider having a staff member as an advisory member of this team—or even have a staffer perform this function as part of their adjusted job duties.

Because it must be nimble in its messaging, the PR Team is the one team that should be empowered to take action without a board vote. The “Crisis Response Team Formation Resolution” presented below takes that into consideration.

 

#10. Be Just Good Enough—and form a Crisis Response Team

Here are some hard truths:

  • There is no perfect way to handle a pandemic response.
  • No board will be totally up to this challenge. 
  • There are things you will fail at.

But by using a Crisis Response Team-informed model, you will set your board up to succeed more than you fail.

If you choose to use this approach, my advice is to not just recycle the formations of your standing committees of the board. Consider the value of shaking things up, inviting “advisory” members, involving the director as needed, and organizing your teams to spur new and novel thinking.  Consider carefully who is reaching out to your library system, your council, and your elected leaders.

For a small board, there will by necessity be some overlap in teams. That is fine. Just be careful to not overload any one person. This situation will be a marathon, not a sprint.

In the event you determine a crisis response model will be helpful to your library in the coming months and even year ahead, here is a resolution to enact it:

Crisis Response Team Formation Resolution

WHEREAS the current state of emergency due to the COVID-19 pandemic is still in effect as of [DATE OF MEETING]; and

WHEREAS the [NAME] library has already had to consider the impact of the state of emergency on the library; and

WHEREAS the board anticipates the state of emergency and following recovery period will impact library operations for the remainder of 2020; and

WHEREAS the board has determined that the emergency and recovery period will require and enhanced model of leadership to ensure the library emerges from the emergency and recovery period in a manner that best prepares it to serve the needs of the community and fulfill its mission and plan of service;

BE IT RESOLVED, that during and after the COVID-19 pandemic, the Goal of the [NAME] Library will serve the community, fulfill its mission, and meet the goals of its plan of service by __________________________, ______________________________, and .

______________________________________;”and

BE IT FURTHER RESOLVED, that the board shall use a “crisis response team” model until it votes that the period of recovery is concluded and such structure is no longer needed; and

BE IT FURTHER RESOLVED that the board’s Crisis Response Team Leader, responsible for coordinating the work of the different teams and identifying when solutions are ready for board consideration and resolution, shall be NAME, and the designated back-up Team Leader shall be NAME; and

BE IT FURTHER resolved that a Safety Team consisting of NAME and NAME shall be responsible for maintaining awareness and raising the issue of safety in all actions related to the board's response to the pandemic emergency and recovery , including the safety and well-being of the community we serve and those the library employs, and shall comment on each recommendation brought to the full board for implementation per the bylaws, prior to any vote; and 

BE IT FURTHER RESOLVED that a Fiscal Team consisting of NAME, NAME and NAME, responsible for assessing the financial impact of and financial options available to the library during this time of pandemic emergency and recovery such fiscal response team shall bring recommendations to the full board for implementation per the bylaws; and

BE IT FURTHER RESOLVED that an Operations Team consisting of NAME, NAME and NAME, responsible for assessing the impact on operations and options available to the library, including but not limited to operations related to mission, plan of service, employees, and the role of the library in the community's response to the pandemic, shall bring recommendations to the full board for implementation per the bylaws; and

BE IT FURTHER RESOLVED that a Public Relations Team consisting of NAME and NAME, responsible for creating and effecting accessible, regular, and reliable communications of how the library is meeting the Goal is empowered to send out messages as needed, in the medium deemed appropriate by that Team; and

BE IT FURTHER RESOLVED that the [board or other] may add participants to these groups as authorized by the bylaws; and

BE IT FURTHER RESOLVED that no team created by this Resolution may take any action or vote that binds the board, and are purely advisory; and

BE IT FURTHER RESOLVED that in no event is any action of this Crisis Response Team Plan to interfere with the ability of the public to have access to meetings and actions of the board; and

BE IT FURTHER RESOLVED that each team shall meet no less than weekly; that the Team Leader shall ensure the full board is advised to meet as needed to implement team recommendations when they are ready; and that all notifications and conduct of such board meetings shall be consistent with the bylaws and the requirements of any current or modified operations of the Open Meetings Law.

 

That’s it.  It’s a lot, I know. But your library has probably weathered other storms: depressions, wars, local crises.  Now is your time to add to that history.  In that task, I wish you strength, health, and persistence.

Tags: COVID-19, Emergency Response

Topic: Unsealed overdue notices and FERPA - 4/3/2020
I am wondering if sending unsealed overdue notices to students in their classrooms is a FERPA viol...
Posted: Friday, April 3, 2020 Permalink

MEMBER QUESTION

I am wondering if sending unsealed overdue notices to students in their classrooms is a FERPA violation. The notices might appear face up on their desks or in their hands for other students to see. The prices of overdue materials are listed on our notices. Another issue - is calling a student's home and leaving a message stating that they have an overdue book and giving the price of the book a FERPA violation? Thank you.

WNYLRC ATTORNEY'S RESPONSE

What a difference a month makes.  When this question came in, my kids were in school, my staff was at the office…and I am willing to bet at least one person in that group had an overdue library book.

Now, of course, we are all home trying to “flatten the curve” of a global pandemic.  If we had overdue books before, they might be overdue for a bit longer.[1]

Despite a global shift in focus since this submission, it is still a good one, and the second question may be more urgent than ever.

The FERPA fundamentals impacting this question were addressed in an “Ask the Lawyer” last year: https://www.wnylrc.org/ask-the-lawyer/raqs/80.

With that as background,[2] here are my answers:

Is sending unsealed overdue notices to students in their classrooms a FERPA violation?

Unless there is a specific waiver or request for the information, unsealed notices distributed in classrooms risks both a FERPA violation, and a violation of CPLR 4509.

Sealing the notices so the contents can’t easily be seen by people who aren’t the students or their legal guardians is a good idea.

 

Is calling a student's home and leaving a message stating that they have an overdue book and giving the price of the book a FERPA violation?

Unless the student requests it, or a policy states that such a practice is for the proper operation of the library, a message reciting library records to a home phone answering machine risks a violation of CPLR 4509.[3]  If the student is under 18, it is not a FERPA violation—so long as the home answering machine is that of the child’s legal guardians—but as reviewed here, FERPA is not the only privacy law a school library in New York must follow.

Lost in a sea of law and regulations?  When considering the implications of FERPA and CPLR 4509 for a school library, seeking solutions that err on the side of privacy is always the safest course.   While applying the letter of the law can be frustrating, a default prioritization of privacy will almost always carry the day.[4]

Thanks for a thoughtful question.  At times of de-stabilization and change, focusing on the principles that guide us—like a commitment to providing access to information along with assured privacy—can bring calm.



[1] Many thanks to the Buffalo and Erie County Public Library for automatically renewing our books!

[2] Intricate, complex, and possibly unsatisfying background!

[3] I like this 2009 guidance from the New York Committee on Open Government on the nuances of CPLR 4509: https://docs.dos.ny.gov/coog/ftext/f17671.html

[4] If health and safety are in seeming conflict with privacy, that is a good time to do a quick check-in with a lawyer.

Tags: COVID-19, Emergency Response, FERPA, Privacy

Topic: Comments on Fair Use During COVID-19. - 4/2/2020
See below for Cole's statement on the Public Statement of Library Copyright Specialists. ...
Posted: Thursday, April 2, 2020 Permalink

MEMBER QUESTION

See below for Cole's statement on the Public Statement of Library Copyright Specialists.

WNYLRC ATTORNEY'S RESPONSE

Friends, lawyers, librarians: as my former law school faculty will tell you, my fair use cup is always half full.  I err on the side of information wanting “to be free.”  And if I wrote copyright law, it would be a very different-looking regime.[1]

That said, for those of you reviewing the Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research, and considering its application to your institution, I want to urge a very precise caution—a precise caution I do not see in the Statement, and an absence I believe could cause undue risk to many[2].

Before I get into the caution, I want to say:

  • I appreciate that “fair use” is in a constant state of warfare akin to a WWI fight for no-man’s land.[3]
  • I appreciate that now may be the time to strike a blow against exploitive publishers, whose actions exploit academic professionals providing content, while driving up costs for students.  
  • I appreciate that game-changing cases like Hathi Trust don’t happen unless someone decides to be bold.

But I am an in-the-trenches attorney.  I am not (and do not have the qualifications nor patience to be) an academic attorney nor a legislator.  In terms of this battle, I am a mere street-fighter.[4]  So here are my thoughts from the streets:

Fair use is a large concept, but its cases are fought on a case-by-case, content-specific basis.

So, if your institution chooses to accept the gambles posed by the Statement—that sometime in 2023, a court will find that a public health emergency impacts a fair use analysis, OR that in the coming recovery, academic publishers will be too wary of negative pushback[5] to sue a targeted few institutions to teach them a “lesson” about copyright[6]use your institution’s “fair use checklist”[7] to document that you have made the determination to use a particular work, at a particular time, in that particular amount, in good faith.

Why?  If you are an educational institution, under Section 504 of the Copyright Act, even if the Statement’s arguments for fair use are found not to hold water, your good-faith determination could limit your damages.[8] [9]  That, in turn, will position your lawyers to ensure the case never sees the inside of the courtroom.  This is especially true since for those 504 (c)(2) covers, the burden of proof is on the plaintiff (the publisher) to prove the bad faith of the defendant (who will hopefully not be you).  But again, this happens on a use-by-use, work-by-work basis.

I want to emphasize this step because in my experience, many smaller educational institutions and libraries do not have in-house copyright specialists, or lawyers, urging them to use a fair use checklist or similar documentation.  While for some institutions, a fair use checklist might be as assured a factor as, say, the fact that graduation happens in Spring,[10] at other places, the idea of documenting a fair use determination might not even be on the radar.

Of course, reading the signs in the wind,[11] my sense is that some people want this case to see the inside of a courtroom (and they are probably hoping for a 2nd, 7th, or 9th circuit judge). Further, based on past fair use battles, my guess is some institutions have decided they will be the frontline warriors in the fight.  For those warriors, I wish you god speed, a keen eye, and a sharp (legal) spear.

For the rest of you, if you decide to follow the guidance in the Statement,[12] I urge you to go into it with your eyes wide open, to use extreme caution, to show you are fully considering the four fair use factors--and if you decide, on a case-by-case basis, that you have a fair use, save the documentation.

 



[1] For instance, the exclusive rights held by non-original authors would diminish much, much sooner.  Fair use factors would also be much different.  Oh, and the whole area of law would consider modern technology. 

You know, some simple changes!

[2] Or rather, the select, targeted few the academic publishing companies will choose to teach a lesson.

[3] I am listening to the soundtrack for “Wonder Woman” right now, so trench warfare is on my brain.

[4] Many of the Endorsers and Signatories are Generals, or at least Captains, in this fight.

[5] A consideration for public regard I have not seen them overly cautious about, to date.  But who knows?  Maybe this will be their Ebenezer Scrooge moment.

[6] AKA in the publishing biz as “protecting our rights.”

[7] I have always loved this one: https://copyright.cornell.edu/sites/default/files/Fair_Use_Checklist.pdf. Cornell, my friends (maybe it’s because I am from Central New York).

[8] Section 504(c)(2) provides that where an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, infringed copyrighted material in the honest belief that what they were doing constituted fair use, the court is precluded from awarding any statutory damages. It is intended that, in cases involving this provision, the burden of proof with respect to the defendant’s good faith should rest on the plaintiff.

[9]Yes, I am linking to Cornell’s site for the citation to 504, and the Statement has both a Cornell Endorser and a Signatory.  Cornell is a mighty copyright fortress and their participation is one of many signs that this document says “bring it.”

[10] Well, it used to.  We are dealing with uncertain times.

[11] A dramatic-sounding way to say “reading comments online.”

[12] Which many lawyers, including myself, will struggle with.  Lawyers can be creative and bold, but unless our clients tell us they are willing to take a risk, we are creatures of precedent.

Tags: COVID-19, Fair Use

Topic: Online Library Programming (Any Type of Program) - 4/1/2020
Our library is arranging more online programming in response to COVID-19 closures and reductions.&...
Posted: Wednesday, April 1, 2020 Permalink

MEMBER QUESTION

Our library is arranging more online programming in response to COVID-19 closures and reductions.  What should we be thinking about in making these arrangements?

WNYLRC ATTORNEY'S RESPONSE

Can a library sponsor an online class open to the public?  YES.

There are just a few details to attend to:

1.  The financial details

Libraries do not charge for programming, but can pay others to offer library programming for free, so as the member says, this online program should be open “to anyone.”[1]

The instructor can still be paid, but the payment should come from the library, while the on-line attendees tune into this library program for free. 

The trick in this is to avoid “fiscal hybridization,” (with the library hosting and promoting the event, and the instructor getting some payment from some attendees).

 

2.  The online content details

Once your library has confirmed the financial details,[2] there should be complete understanding about the following questions:

Can the library promote the class using the instructor’s name and likeness?

Will the session be recorded?

Who owns the recording?

Will the library be able to use the recording for as long as it wants?

What platforms will the session and recording be hosted on?

Will the recording be put in the collection of the library?

What social media will the session be promoted on?

Will the session use music (that could stop it from being posted some places, like YouTube)?

That’s it, nothing fancy, just have some things to have clarity about.

 

3.  The participant details

Once you have the details of the way the class will go “out there,” confirm:

Who is our target audience?

Do they have any particular vulnerabilities?

Do we need to consider ADA access such as captioning?

How will we collect feedback on the programs?

 

4.  The contract details

With all that minutia settled, here is a template agreement to organize the details. 

Of course, as with all template contracts, if you can,[3] have this template customized for your library by your local lawyer or insurance carrier.

ONLINE INSTRUCTION AGREEMENT

 

The [LIBRARY] (“Library”)and [NAME] (“Instructor”), with an address of [ADDRESS], to provide critical health programming at a time of state-wide pandemic emergency, agree as follows:

Instructor will offer classes in ____________ (“__________ Classes”) from [PHYSICAL LOCATION] to Library’s patrons and others via:

[INSERT HOSTING METHOD AND STREAMING SITE(S)]

Classes will be live streamed at [INSERT TIMES, DATES].

The ___________ Classes will be a target audience of those who can benefit from online social gatherings to participate in ___________________. 

[in case of activity involving a professional license] Instructor’s professional license was granted by [LICENSING AUTHORITY] and is current; if the license expires or is revoked during the term of this agreement, Instructor will notify Library immediately.

[in case of instruction involving physical activity] To promote safe participation, at the start and end of every class, the screen will read, or the Instructor will say:

[INSERT Instructor’s preferred safety and wellness message; here is a sample that is customized for the times:

[ACTIVITY] is intended as a gentle but serious exercise.  Please consult your physician prior to any physical activity that could impact your health, and only participate within your know abilities.  Please stay safe during this time of social distancing and enjoy our class.]

___________ Classes will be promoted as a free program of the library and Instructor shall not charge individual attendees for these sessions.

Library will pay Instructor _____ per session. 

[OR]

Instructor has agreed to provide this programming on a volunteer basis.

Instructor agrees that no music or other copyrighted work other than content owned or properly licensed to Instructor and Library shall be used during recorded or live-streamed __________ Classes.

Instructor agrees that Library may use their name, likeness, and image when promoting ____________ Classes. Library agrees that Instructor may use its name, likeness, and image when promoting _____________ Classes.

All sessions of __________ will be recorded by [INSERT] and the recording will be jointly owned by Instructor and Library.  This means both parties shall have the right to make copies, distribute in any way, or otherwise use the copyrights to the recordings.

Instructor hereby agrees to hold harmless and indemnify Library for any claim, cause of action, or injury arising from the creation, promotion, and participation in ________ Classes.

Instructor is an independent contractor and no partnership, joint venture, or relationship other than what is in this Agreement is created or implied by this Agreement.

The Parties both understand that this is an agreement during a time of emergency and this contract may be terminated without notice.  Any changes to this contract shall be confirmed via e-mail reflecting clear mutual agreement by the parties.

This agreement is governed by the laws of the State of New York.

 

Signed for Library on _________:_______________________

                                                                        [NAME]

 

Signed for Instructor on _________:_______________________

                                                                        [NAME]

                                                                                               

5.  The assessment details

As with any library program, a live-streamed event is one for the staff to watch, monitor, and assess on a continual basis.  This will allow you to assess if the promotion, the session, and the recordings comply with the Agreement, and to make enhancements based on participant feedback.  It is also another way to limit the risks inherent in the activity. 

Just as critical, though, will be feedback that the class felt accessible, gave good instruction, and had a positive impact.

I wish you many valuable and rewarding online programs.



[1] I also would not have a concern with it being restricted to card-holders within a system, or card-holders registering in advance to participate for free.

[2] The instructor could also do this as a volunteer, but if they do good work, it is nice for them to get paid.

[3] If you can, this template should be reviewed by the lawyer who knows your library best.  But given the current crises and the need to reach people quickly, and the strain on budgets, I appreciate that you might laugh at this footnote.

 

Tags: COVID-19, Emergency Response, Library Programming and Events, Streaming, Online Programming

Topic: Live streaming a chair yoga program - 3/30/2020
Can we sponsor an online chair yoga class open to the public? We hosted this program on Mondays in...
Posted: Monday, March 30, 2020 Permalink

MEMBER QUESTION

Can we sponsor an online chair yoga class open to the public? We hosted this program on Mondays in person and would like to make it available during our COVID 19 closure. The instructor can live stream herself with payment and we'd like to open it up to anyone. Do we need waivers or disclaimer language on our website?

WNYLRC ATTORNEY'S RESPONSE

Can a library sponsor an online chair yoga class open to the public?  YES.

There are just a few details to attend to:

1.  The financial details

Libraries do not charge for programming but can pay those who offer library programming for free, so as the member says, this online chair yoga program should be open “to anyone.”[1]

In this instance, it sounds like perhaps the instructor has (perhaps) been paying for space in the library, while offering on-site or online classes for a fee.  In the new arrangement proposed by the member, the classes become a free library program.  This means the instructor can still be paid, but the payment should come from the library, while the on-line attendees tune in for free. 

The trick in this is to avoid any “fiscal hybridization;” in no event should the library host and promote the event, while the instructor gets some payment directly from attendees.

                                                               

2.  The online content details

Once your library has confirmed the financial details,[2] there should be complete understanding about the following questions:

Can the library promote the class using the instructor’s name and likeness?

Will the session be recorded?

Who owns the recording?

Will the library be able to use the recording for as long as it wants?

What platforms will the session and recording be hosted on?

Will the recording be put in the collection of the library?

What social media will the session be promoted on?

Will the session use music (that could stop it from being posted some places, like YouTube)?

That’s it, nothing fancy, just have some things to have clarity about.

 

3.  The participant details

Once you have the details of the way the class will go “out there,” confirm:

Who is our target audience?

Do they have any particular vulnerabilities?

Do we need to consider ADA access such as captioning?

How will we collect feedback on the programs?

 

4.  The contract details

With all that minutia settled, here is a template agreement to organize the details. 

Of course, as with all template contracts, if you can,[3] have this template customized for your library by your local lawyer or insurance carrier.

CHAIR YOGA AGREEMENT

The [LIBRARY] (“Library”) and [NAME] (“Yoga Instructor”), a yoga instructor certified by [CERTIFYING BODY], to provide critical health programming at a time of state-wide pandemic emergency, agree as follows:

Yoga Instructor will offer classes in chair yoga (“Chair Yoga Classes”) from [PHYSICAL LOCATION] to Library’s patrons and others via:

[INSERT HOSTING METHOD AND STREAMING SITE(S)]

Classes will be live streamed at [INSERT TIMES, DATES].

The Chair Yoga Classes will be a target audience of those who can benefit from online social gatherings to participate in routine chair yoga. 

To promote safe participation, at the start and end of every class, the screen will read, or the Yoga Instructor will say:

[INSERT Yoga Instructor’s preferred safety and wellness message; here is a sample that is customized for the times:

Chair Yoga is intended as a gentle but serious exercise for the mind and body.  Please consult your physician prior to any physical activity that could impact your health, and only participate within your know abilities.  Please also know that Yoga, in general, can connect you to feelings that you may wish to address with your mental health provider.  Please stay safe during this time of social distancing and enjoy our class.]

Chair Yoga Classes will be promoted as a free program of the library and Yoga Instructor shall not charge individual attendees for these sessions.

Library will pay Yoga Instructor _____ per session. 

[OR] Yoga Instructor has agreed to provide this programming on a volunteer basis.

Yoga Instructor agrees that no music or other copyrighted work other than content owned or properly licensed to Yoga Instructor and Library shall be used during recorded or live-streamed Chair Yoga Classes.

Yoga Instructor agrees that Library may use their name, likeness, and image when promoting Chair Yoga Classes. Library agrees that Yoga Instructor may use its name, likeness, and image when promoting Chair Yoga Classes.

All sessions of Chair Yoga will be recorded by [INSERT] and the recording will be jointly owned by Yoga Instructor and Library.  This means both parties shall have the right to make copies, distribute in any way, or otherwise use the copyrights to the recordings.

Yoga Instructor hereby agrees to hold harmless and indemnify Library for any claim, cause of action, or injury arising from the creation, promotion, and participation in Chair Yoga Classes.

Yoga Instructor is an independent contractor and no partnership, joint venture, or relationship other than what is in this Agreement is created or implied by this Agreement.

The Parties both understand that this is an agreement during a time of emergency and this contract may be terminated without notice.  Any changes to this contract shall be confirmed via e-mail reflecting clear mutual agreement by the parties.

This agreement is governed by the laws of the State of New York.

 

Signed for Library on _________:_______________________

                                                            [NAME]

Signed for Yoga Instructor on _________:_______________________

                                                                                [NAME]

                                                                               

5.  The assessment details

As with any library program, a live-streamed event is one for the staff to watch, monitor, and assess on a continual basis.  This will allow you to the promotion, the session, the recordings to comply with the Agreement, and top make enhancement based on participant feedback.  It is also another way to limit the risks inherent in the activity. 

While there is very little risk of liability for personal injury during livestreamed chair yoga (compared to say, in-person “Acroyoga”…you should see the case law on that![4]), “chair yoga” is targeted to a population with some physical limitations,[5] so attention to these details is a good idea. 

Just as critical, though, will be feedback that the class felt accessible, gave good instruction, and had a positive impact.

And finally, the most important detail for busy library professionals scrambling to serve their communities right now…

 

6. Remember to breathe

…it helps with stress.

Best wishes for a good program, and happy utkatasana.[6]



[1] I also would not have a concern with it being restricted to cardholders within a system, or cardholders registering in advance to participate for free.

[2] The yoga instructor could also do this as a volunteer, but if they do good work, it is nice for them to get paid.

[3] If you can, this template should be reviewed by the lawyer who knows your library best.  But given the current crises and the need to reach people quickly, and the strain on budgets, I appreciate that you might laugh at this footnote.

[4] Here’s a quote from a case, (Malouf v Equinox Holdings, Inc., 38 Misc 3d 1223 [Sup Ct, NY County 2012]): “The exercise during which she was allegedly injured called for her male partner to lie on his back with his legs in the air. She "was told to lean over his feet and put his feet on my pelvis and lean forward and hang limp like a rag doll balancing on his feet with his feet on my pelvic bone”…The next step "was to put our hands together and bring our hands behind our heads with our elbows up in the air" (id.). Then, "the dark-haired girl came and forcefully pushed my elbows behind my head and forcefully brought them together and I screamed Ouch'" (id.). Malouf had not asked for assistance (id. at 31).” 

Ouch, indeed.

[5] Please don’t tell my mother, who does chair yoga at New Hartford Public Library, that I have characterized her activity this way.  There is absolutely no limit to her ability to chastise me over the 180 miles between her house in New Hartford and my house in Buffalo.

[6] “Chair pose.”  One of my favorites.

Tags: COVID-19, Emergency Response, Library Programming and Events, Streaming, Online Programming

Topic: School Closures and Teachers Pay Teachers - 3/26/2020
With the recent closing of schools I and my membership have been asked a great deal about Teachers...
Posted: Thursday, March 26, 2020 Permalink

MEMBER QUESTION

With the recent closing of schools I and my membership have been asked a great deal about Teachers Pay Teachers. Is it responsible for teachers and districts to provide students with materials purchased through this service?

WNYLRC ATTORNEY'S RESPONSE

[NOTE: This answer is part of our ongoing response to institutions moving to online instruction as part of the world’s response to COVID-19.  For additional Q&A on that, search “COVID-19” in the Ask the Lawyer search utility.]

“Teachers Pay Teachers” (“TPT”) is an interesting service that allows teachers to license (sell rights to) others who need customized lesson plans and educational material.[1]

The member’s question relates to the TPT license, which governs what individuals and organizations can do with the content.

If the member’s question is asking: does the TPT license allow us to print and distribute the materials in hard copy for packets sent out by the District?  The answer is generally: yes.

If the member’s question is asking: does the TPT license allow us to distribute the materials electronically using e-mail or a website or a Learning Management System? The answer is generally: it depends.

I spent some time on TPT’s website reviewing their “Terms of Service”[2] and I believe teachers and organizations will need to examine the license for each separate purchase to confirm that electronic distribution is allowed.

Why? TPT’s “Terms of Service” largely allow for the creation of hard copies,[3] but their default conditions bar online distribution.  HOWEVER, TPT also allows the teachers supplying the content to loosen those default restrictions[4] (including allowing distribution on the web[5], e-mail, etc.)…so while one lesson purchased from TPT might not allow a web or e-mail distribution, another might. 

This can change not only from author to author, but content to content, so it is important to read the fine print.[6]

I would add: these are early days in the pandemic response.  As of March 26, 2020, TPT did not have any expressly Covid-19 policies on its website.  Nevertheless, like other online and tech providers, they may realize their hour has come, and take action. 

What will that action be?  I can’t say; a crisis brings out the best and the worst in businesses.  Some businesses will try and simply profit from the current situation; others will dig deep, conclude we are all in this together….and try to find at least middle ground. 

Looking at their Terms, Teachers Pay Teachers has made commitments to individual content providers it cannot easily change on a dime.  But remember, TPT empowers its individual content providers to set their own terms—so long as those terms are more liberal that the TPT baseline.  So keep your eyes on those product-specific, unique terms of use.  I imagine many teachers will feel compassion for the teachers and students impacts by this public health emergency, and liberalize their restrictions.

Thank you for this important question.

USING LICENSED CONTENT TIP: If you or your institution conclude that TPT or another license does give you permission for electronic distribution, it is a good idea to take a screen shot of that license and save it (just e-mail it to yourself in a place where you know you’ll have it for 3 years after you’re done use the content).  Online content providers can change the terms they post, without warning—and you want to be able to show that on the day you made the call to share the content electronically, the licensor allowed you to do so.

 



[1] Because some educational institutions own the rights to teacher-generated materials, and some do not, the Teachers Pay Teachers model is a fascinating study in copyright issues—but a global pandemic is not the time to muse over that.

[3] The Terms of Service allow you to: “Print and make copies of downloadable Resources as necessary for Personal Use. Copies may be made and provided to your students, classroom aides, and substitute teachers as necessary. Copies may also be made for students’ parents, classroom observers, supervisors, or school administrators for review purposes only. Hard goods and video resources may not be copied, shared, or otherwise reproduced.” [emphasis added]

[4] But not further tighten them.  Like I said, a really interesting model.

[5] For instance, one license I looked at, for a chemistry class, said: “These resources may not be uploaded to the internet in any form (including classroom websites, personal web sites, Weebly sites, network sites) unless the site is password protected and can only be accessed by the students of the licensed teacher.”  In other words: yes, you can distribute them electronically, if you use a restricted system!

[6] The diversity of author-specific permissions I saw on TPT was really interesting. Some folks just want credit.  Others want you to not send the content, but drive people to their own personal listings (so their analytics show the hits).  I bet some, in the coming days, will even change their permissions to respond to the pandemic with compassion.

Tags: COVID-19, Emergency Response, Licensing, School Libraries, Teachers Pay Teachers

Topic: Audiobooks and Copyright Laws in a Pandemic - 3/24/2020
A teacher from our school needs audiobook access to four different books for about 10 students per...
Posted: Tuesday, March 24, 2020 Permalink

MEMBER QUESTION

A teacher from our school needs audiobook access to four different books for about 10 students per book, particularly if our absence from school is extended. She would like to provide the links to students where such audiobooks have been uploaded and posted by others on YouTube. The audiobooks are still under copyright. Previously, I had been told that if a teacher merely posts links that the teacher him/herself is not liable for copyright infringement, but another librarian recently stated that there is some new case law on the issue and that even posting the links constitutes a violation. Any guidance you could provide would be appreciated. Thank you.

WNYLRC ATTORNEY'S RESPONSE

For the record, as I write this response, the following message runs across the top of the U.S. Copyright Office’s web site:

Operations Updates During the COVID-19 Pandemic

Out of an abundance of caution, all Library of Congress buildings, which includes the U.S. Copyright Office, will be closed to the public until Wednesday, April 1, 2020, at 8:30 a.m. to reduce the risk of transmitting COVID-19 coronavirus. If you are a user of U.S. Copyright Office services, submit your applications online, browse FAQs, and submit emails with questions through copyright.gov. You may also reach the Copyright Office by phone at (202) 707-3000.

Despite that announcement, no deadline, fee, or change in copyright law or regulation has been announced.[1]  That said, even the Copyright Office is switching things up as we respond to a global pandemic, and I have received many questions asking if the normal copyright laws still apply (they do).

This question, too, is about pandemic response; the member’s colleague is working to provide content for students whose education is making a quick, unplanned transition to distance learning.  That calls for flexibility, ingenuity—and appropriate online content.

The member’s institution is not alone in this need for new resources.  As I write this, my staff is working from home, and my kids (ages five and fifteen) are handling packets from school and electronic transmissions of homework.  Everyone I know now wishes they had bought stock in Zoom.  We are all seeing how vital solid online content can be.

The member wants to know if simply providing links to content that might not be posted with the permission of the copyright holder will expose their school to liability.

As of this special moment in time,[2] the clearest[3] case law on linking and academic texts found in an array of cases pen-culminating[4] in Pearson Education, Inc. v. Ishayev, a 2014[5] ruling from the one of the federal courts located in New York City (the “SDNY,” if you want to sound cool about it).

In the “Pearson” line of opinions, academic publisher Pearson Education accused two Brooklyn residents of (among other things) providing a hyperlink to a file-sharing website where a person could (allegedly) obtain copies of the Plaintiff’s materials.[6]  Pearson’s law firm even had one of their legal staff pay for the links from the defendant! (This is the kind of sneaky thing that makes people not like lawyers.)

As pointed out in the line of Pearson rulings, sending an email containing a hyperlink to a site facilitating the sale of a copyrighted work does not itself constitute copyright infringement; it’s viewed as “the digital equivalent of giving a recipient driving directions to another website on the Internet.”  But that doesn’t mean that sending a link to infringing content is always okay.

As put by SDNY Judge Paul Englemeyer’s March 24, 2014 ruling on the case:

The publishers assert that Ishayev is liable for contributory infringement because he knowingly sold access to hyperlinks, which allowed other individuals to download eight of the publishers' copyright protected works from a website. If proven with competent evidence, such conduct would lead to liability for contributory copyright infringement—sending hyperlinks that permit others to download protected materials would plainly amount to conduct that encourages or assists in copyright infringement. [emphasis added]

Unfortunately, as can be seen in the Pearson opinion, deciding possible liability in matters like this doesn’t come down to a simple question of “links, or no links?”

What does it come down to?  The sender’s awareness of infringing copies, and their state of mind and intentions when they sent the links.[7]  In other words: if you know it’s wrong, don’t do it.

That’s the cold letter of the law, and it’s not very helpful or comforting, I know.  I give you something that might be a better guidestart on this one: professionalism and respect.

We are living in a very odd Spring Semester, here in 2020.  As the State of New York issues Executive Order after Executive Order, I am struggling to find solid guidance for clients.  People need to know what they can do (and not do).

While not quite on par with trying to education students, I can relate: we need content to get the job done, and the content we are finding at this precise moment might not be the most reliable.  It’s scary and inconvenient and hard.

I think, more than ever, that means it is time for us to do what we know is right.  If we know an audiobook is available from an unauthorized source, don’t direct innocent kids to go download it from a known infringing source.  It’s just not the right thing to do (and some day, those students might be copyright holders themselves, deserving of the same respect).

And finally, even if you’re willing to take the risk for your institution (we’ll take our chances, it’s a pandemic!), think of it this way: publishers and content owners track infringements by IP address, so the person who might get in trouble might not be the school, but rather the student.[8]

So, did the case law on linking “change?”  Not quite.  But it has evolved.  And who knows, maybe as a result of the current crisis, it will evolve some more.  But for now, knowingly linking to known unauthorized content brings risk.

Thank you for a great question.  I wish you health, energy, and ingenuity in this time of national emergency.



[1] Registration fees went UP this month, but that’s another story!

[2] March 22, 2020, and what an odd day it has been. 

[3] In my opinion.

[4] Welcome to my new word, “penculminating,” which means, the next-to-last thing before the end result.

[5] There are actually quite a few judicial opions on “Pearson Education.”  Make sure you look at the final rulings from 2014.

[6] This is a very bare-bones summary.  For the full story, check out the opinion here: https://scholar.google.com/scholar_case?case=2045770819331774838&hl=en&as_sdt=6&as_vis=1&oi=scholarr. (Note my intrepid linking without fear of liability!).

[7] I am not even going to attempt to go down the fair use road on this one!  But in different circumstances (not using the materials simply to teach from, for instance, or using tactical excerpts) such a claim could be made.

[8] Okay, let’s get real: it would be the parent whose name the IP address resolves to.  But you get my point.

 

Tags: Copyright, COVID-19, Emergency Response

Topic: Reproduction of Copyrighted Photographs - 3/19/2020
Is it considered fair use for a student to reproduce a copyrighted photograph for public display i...
Posted: Thursday, March 19, 2020 Permalink

MEMBER QUESTION

Is it considered fair use for a student to reproduce a copyrighted photograph for public display in an academic institution having cited the original published source but not having sought and received express permission from the copyright holder? The image is reproduced in its entirety with overplayed text added by the student. The posters are the product of an academic exercise. It has been proposed to display them for a period of 2 months in an area open to the public.

WNYLRC ATTORNEY'S RESPONSE

You, reader, will never know my answer to this question.

That’s because to truly answer it, I had to contact the member and get some more information.  The information I received, and the answer I gave in return, were so specific, the content was no longer suitable for a general-audience response.[1]

It had become legal advice, not just “guidance,” or “commentary,” or “analysis.”  It was confidential, tailored to one entity, and protected by attorney-client privilege.

This is the challenge with fair use questions: they turn on numerous precise details.

That said, I can say that the bare-bones scenario above gives a few reasons to be cautious.  The use of the entire work, and the display in a public area, are red flags.

But I also want to caution you about too much caution.  Both those risk factors: use of the entire work, public display—could be easily balanced by an exercise in compare-and-contrast, substantive criticism, or in-depth analysis.

This is why an educational institution should always use a “fair use checklist”[2] to address questions of fair use.  An educational institution that uses a checklist has a good chance of determining that a use is “fair,” and while doing so, also creates documentation showing that their conclusion—even if later ruled to be erroneous—was in “good faith.”  This exercise can limit damages, later.

The most recent case law involving use of a photograph in an academic setting, Reiner v. Nishimori,[3] did result in a finding of fair use, and is an instructive example.  In that case, students used the plaintiff’s copyright-protected stock photograph to practice making advertisements.

Here is the court’s analysis of the case, using the fair use “four factor” test:

  1. The first factor is “purpose and character of the use.”  For that factor, the court held that because the photo was not being used as instructional material, but rather as raw content for the generation of mock advertisements, the factor was in favor of fair use.
  2. The second factor, however, “the nature of the copyrighted work,” was found to weigh slightly against fair use, since the original work was “creative,” and the student use was also “creative.”[4]
  3. The third factor, “the amount of work used,” was against fair use because the students used entire photograph.
  4. The fourth factor, “the effect on the market for the copyrighted work,” was found to support a fair use claim.  Basically, in this precise instance, it was found by the court that no one who would have purchased or licensed the original would choose not to do so based on the students’ use.

That’s Reiner v. Nishimori, where fair use carried the day.  But with a few tweaks of the facts, it could have had a different outcome.

And that’s while you may never know the real answer to this question.

 



[1] This makes it sound like it was rated “R.”  I assure you, the content was PG.  It was just legal advice.

[2] A very good example can be found here: https://copyright.cornell.edu/sites/default/files/Fair_Use_Checklist.pdf

[3] Reiner v. Nishimori No. 3:15-cv-00241 (M.D. Tenn. Apr. 28, 2017)

[4] This factor routinely messes up judges, and I personally disagree that “creative” works might qualify for more protection that laboriously and carefully assembled facts.  But I am not a judge!

 

Tags: Copyright, Fair Use

Topic: COVID-19 Diagnosed Case Where Person Visited the Library - 3/19/2020
We are seeking guidance as a result of the following: We have been informed (by the Health Depa...
Posted: Thursday, March 19, 2020 Permalink

MEMBER QUESTION

We are seeking guidance as a result of the following:

We have been informed (by the Health Department and via news media) an individual who now has been confirmed to have COVID-19 attended a program at one of our libraries. I have been asked the following questions:

1. To what extent is it the responsibility of the library to notify participants who attended the library program the person now diagnosed with COVID-19 attended?
If the library bears no responsibility, would you recommend the library, as a courtesy, notify attendees? What of others who may have been in the library at the time of the program - in many cases, the names of these individuals are not known...are we placing the library in a liability situation if we notify some, but not others? If you suggest a courtesy call, can you please provide suggested language?

2. CPLR 4509 speaks to the confidentiality of library records. We have always employed that this further applies to the identification of anyone using the library, those participating in programs, etc. -- meaning that NO information can be provided to anyone without a proper subpoena. Given that this is a situation related to the health and well-being of our community should (they have not, but this is a question that has been asked) the Health Department request the names of program participants does CPLR apply? If so, can you recommend a response to such a question.

Thank you for your assistance.

WNYLRC ATTORNEY'S RESPONSE

To address this very serious array of questions, we’ll take them one at a time.

To what extent is it the responsibility of the library to notify participants who attended the library program the person now diagnosed with COVID-19 attended?

The library is not obligated to notify individual members of the public regarding possible exposure; the county health department is obligated to notify the New York State Department of Health, and will coordinate the necessary level of response.[1]

If the library bears no responsibility, would you recommend the library, as a courtesy, notify attendees?

In a time of pandemic, information is power.  If the library has the capacity to notify attendees in a way that connects them to meaningful next steps, AND the County Health Department agrees that such notification will be helpful, then: yes, that would be a good thing to do.

However, because the slightest bit of mis-information in this step could potentially cause harm, such a courtesy should only be done in collaboration with the County Health Department.

What of others who may have been in the library at the time of the program - in many cases, the names of these individuals are not known...are we placing the library in a liability situation if we notify some, but not others?

An effort to empower people, through information, to take care of themselves and minimize the spread of disease will not expose the library to liability in the event only known attendees can be alerted.  As stressed above, the greater risk would be mis-informing the public, which is why coordination with the county health department is key.

If you suggest a courtesy call, can you please provide suggested language?

For reasons of confidentiality and accessibility, the notice should not be a verbal phone call, but rather (and only if confirmed as helpful by the County Health Department), a written notice sent to the library’s user’s email address.

Suggested text for your library to review with the health department is:

Dear Library Member:

As you know, the [INSERT] [County Department of Health] is monitoring the development of COVID-19 in our county.

As you can see at the listing [here], the Department has determined that on DATE, a person with COVID-19 attended the [INSERT PROGRAM NAME] program at our library, which ran from TIME to TIME on DATE.

Because the [NAME] Library values every member, and because we believe knowledge is power, we are working with the county to notify individuals who we know were present at the event.  As advised by the County’s guidance [here], encourage you to monitor yourself daily for symptoms of COVID-19.

Further information on what to do in the event of a health concern is on the Health Department’s website at [link].

Your library information is confidential and your participation in the [NAME] event will not be released unless upon your request.

Given that this is a situation related to the health and well-being of our community…[if] the Health Department request the names of program participants does CPLR [4509] apply? If so, can you recommend a response to such a question.

Yes, the confidentiality requirement of CPLR 4509 absolutely still applies.  Here is the language of that law:

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.

Because CPLR 4509 is so clear in its protection of patron information, I am not comfortable concluding that disclosure to a County Health Department is allowed for the “proper operation” of the library, or even in the case of a declared emergency.  Even during times of trouble, we need to follow the law.

However, if the library has the capacity to do so, upon request of the Health Department, the library can write to the impacted patron, and see if the patron will request the disclosure.

Sample outreach to see if the patron wants their information released is:

As a result of a person who visited the [NAME] library testing positive for COVID-19, the county health department has the name and contact information of other patrons who visited during the [EVENT].

By law, your library information is confidential.  Therefore, the [NAME] Library will only disclose your information if you request that we do so. 

Please let us know if you would like us to release your name, address, and phone number on file with the library to the [COUNTY] County Health Department.

You may also directly call the County Health Department about this at [NUMBER]; if you do, tell this it is regarding the COVID-19 case as the [NAME] Library.

In the alternative, the County Health Department may obtain the information via a subpoena or court order.

Those are my answers to the member’s questions.  Here are some additional thoughts:

Legal compliance and ethics are strong supports during tough times. Thank you to the member for thinking this situation through so thoroughly.



[1] 10 NYCRR 2.16v

Tags: COVID-19, CPLR 4509, Emergency Response, Library Programming and Events

Topic: Executive Order 202 and NY Open Meetings Law - 3/18/2020
Can you please explain the clause below found in Governor Cuomo's Executive Order dated 3/13/2...
Posted: Wednesday, March 18, 2020 Permalink

MEMBER QUESTION

Can you please explain the clause below found in Governor Cuomo's Executive Order dated 3/13/2020. It reads:

Suspension of law allowing the attendance of meetings telephonically or other similar service:

Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.”

It is understood the Order allows a public body may hold and take action in meetings held remotely. The question comes to announcing the meeting and announcing the location of the remote conference call or similar device. Is notification required? And if so, to what extent? Location of participant?

A second question is regarding whether or not a location must be open to the public to attend OR if it is required the public also be able to access the meeting via telephone/telecommunication.

Executive order can be found here: https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202_1.pdf
 

WNYLRC ATTORNEY'S RESPONSE

I have a phrase I use in my office to remind my team (and me) to be diligent, but always play it cool: “Quick work is [not such very good[1]] work.”

To get ahead of the Covid-19 Pandemic, our government is acting QUICKLY.  The closings, the attention to a million health-related and logistical details—our leaders are having to handle an immense amount of work, in a very small amount of time.

When working quickly, one of the first things to go by the wayside is word-smithing. As can be seen from the member’s questions, that is what happened here.  The Order is helpful, but its phrasing probably could have been a bit more clear.[2]  UPDATE: Further, this March 13th Order may be confused for an earlier Order on March 7, which was the focus of a notice by the NY Committee on Open Government, that went out to many people, and has now been superseded by the Order referenced in the members question.[3]


So, unpacking the order (and explaining a few things it is clear the asking member already understands, but I am providing for helpful context), what does it mean for libraries?

Libraries are required by the New York Education Law (which creates them) to follow the Open Meetings Law (a/k/a “Article 7 of the Public Officers Law”).  This Order relaxes some of the laws requirements to suit our state’s pandemic response.

Typically, to comply with the Open Meetings Law, a library must: 1) provide notice of a meeting and announce the use of any teleconferencing in advance; 2) identify the location(s) for the meeting; and 3) state the public’s right to attend the meeting in person.   If the meeting will be live-streamed over the internet, the announcement must include the web address.  And finally, whenever possible, the library must post the notice of the meeting “conspicuously” on its website. [4]  (It has been firmly and repeatedly established that no voting can take place via teleconference, but videoconferencing is allowed).


The Open Meetings Law was passed because, as the New York Legislature puts it:

It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal[5] will prosper and enable the governmental process to operate for the benefit of those who created it.[6]

So what is different now?  We’re trying to maintain our democracy, but also keep it from getting sick.  With that goal in mind, lets parse the Order, and answer the member’s questions.

1. The Order says: “…without permitting in public in-person access to meetings…”

This means that for the duration of the Order, the public does not have to be able to physically attend your library’s board meetings.  Basically, it empowers your library to cut down the size of those physically assembling.  This is consistent with other recent Executive Orders regarding eliminating large gatherings.

 

2. The Order says: “…authorizing such meetings to be held remotely by conference call or similar service…”

This means that for the duration of the Order, contrary to the usual requirements, your board can meet view conference call (or “similar” service).

 

3.  The Order says: “…provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.”

This means[7] that in order to take advantage of the relaxed requirements I set out in “1” and “2” above, the public has to be able to see OR hear the meetings, BUT ONLY if your library arranges for them to be recorded and (later!) transcribed.

 

These are significant adjustments to the requirements of the law.  But with regard to notice, which is at the heart of the member’s question, the Order has waived none of law’s requirements. 

With that in mind, to the greatest extent possible, sending notice to the media as usual, and posting notice of the meeting in a physical, non-virtual place viewable to the public is still required. While disclosing the exact location of all meeting participants may not be possible (since they will be on the phone), the notice should strive to include as much information as possible that is most useful to the public, including the location of any physical participants.  And the method you select for sharing the meeting in real time (livestreaming, a broadcast) should be accessible to the general public.

It might be also be helpful, when crafting your notice, to include acknowledgement that this meeting and notice will be a little bit different:

In keeping with Executive Order 202.1 (regarding emergency adjustments to the Open Meetings Law in response to the Covid-19 pandemic), the public is not permitted in-person access to this meeting, and the meeting shall be held remotely via [METHOD].  As required by the Governor’s Order, the public will have the ability to [VIEW OR LISTEN TO] such proceeding at [METHOD], and the meeting shall be recorded,  transcribed, and made available on the Library’s web site before [DATE].

Since current federal government guidance is that gatherings of more than ten people are not recommended at this time, it makes sense to not provide or allow access to a physical location in which to gather to listen to or view the meeting—at least for now.  But business must get done.

Good luck with your meetings; your board members have a lot to think about.



[1] I actually use shorter, monosyllabic word, but Ask the Lawyer is rated “G.”

[2] I am assuming that “legal aid in the Governor’s Office” is not a relaxing job right now (if it ever is).

[3] Thanks for the heads-up on the COOG’s 3/9/20 advisory memo, Grace Riario at Ramapo Catskills Library System (which, to emphasize, has been superseded by the 3/13/20 Executive Order).  With so much happening so fast, it is good to be able to add this layer of clarification.

[4] For a more thorough explanation, visit https://www.dos.ny.gov/coog/openmeetinglawfaq.html

[5] Not a typo, but a cool old word for the general welfare.

[6] Public Officers Law, Article 7, §100.

[7] For anyone who wants to get together (virtually!) and discuss the significance of potentially missing commas in this part, please send comments to adams@losapllc.com.

 

Tags: COVID-19, Emergency Response, Executive Order, Open Meetings Law

Topic: Providing website disclaimers - 3/17/2020
With the Covid-19 pandemic, we are creating a Google Site where we are listing websites. I know I ...
Posted: Tuesday, March 17, 2020 Permalink

MEMBER QUESTION

With the Covid-19 pandemic, we are creating a Google Site where we are listing websites. I know I have seen websites that post a disclaimer something to the effect that we are anticipating that the links are recommended, but that we cannot guarantee the veracity of the information. I am looking for preferred wording from a legal standpoint.

WNYLRC ATTORNEY'S RESPONSE

During a pandemic, reliable and verifiable information is critical.

Even as libraries are faced with challenges to their operations, they are working hard to ensure people have just that: solid information. 

This is a vital service, since what is needed is not only virus-related, but the details of how we hold our communities together: information on social services, operations of courts and other critical government functions, and the distribution of resources to those in need.

In all this, “bad” (unreliable) information can travel with the “good” (reliable) information. 

A good disclaimer alerts the reader to this in a resource-appropriate way.  Because of that, there is no “one size fits all” disclaimer.  But there is a formula for generating one.

An effective disclaimer alerts the reader to: 1) the reliability of the sources on a list; 2) the purpose of the list, and 3) the ability of the compiler to assure readers as to content’s continued quality.  For the broadest lists requiring the strongest disclaimers, re-directing the reader back to the best sources is a good practice to consider.

With that formula in mind, here are 4 sample disclaimers, based on the qualities of a list of links:

1.  Reliable/verifiable source, very specific purpose, specific date:

This compilation of links is limited to government sites’ updates on pandemic response as of [DATE]. 

 

2.  Reliable/verifiable source, broader purpose, rolling updates

This compilation of links is limited to CDC and local Department of Health updates on pandemic response and public health, and will be added to as resources grow. This situation is evolving rapidly; please alert us to any broken links. 

 

3.  Less verifiable/reliable sources, specific purpose, specific date

This list was assembled on DATE and gathers a diversity of information and sources regarding Covid-19 pandemic response.  [NAME] library cannot verify the links will remain active and cannot verify the veracity of content.  For the most reliable information regarding global and local pandemic response, visit the Center for Disease Control and [your local Department of Health].

 

4.  Broadest list, broadest disclaimer

This list of links gathers a diversity of information and sources regarding Covid-19 pandemic response and related issues, including resources for coping during a time of social distancing.  [NAME] library cannot verify the links will remain active and cannot verify the veracity of content.  For the most reliable information regarding global and local pandemic response, visit the Center for Disease Control and [your local Department of Health]. 

 

I hope this approach is helpful. Thank you for a good question and thank you for serving the public at this time of need.

Tags: COVID-19, Emergency Response, Disclaimers

Topic: COVID-19 and part-time pay - 3/16/2020
Can libraries, using public money, pay part-time staff if they are either forced to close due to t...
Posted: Monday, March 16, 2020 Permalink

MEMBER QUESTION

Can libraries, using public money, pay part-time staff if they are either forced to close due to the COVID-19 or if the employee is forced to self-quarantine?

WNYLRC ATTORNEY'S RESPONSE

This is a very specific question, during a very specific, difficult time.  So before we delve into the answer, I want to be clear: every library dealing with the human resource considerations of a pandemic response should assemble the following, and be ready to draft a custom approach that takes into consideration:

  • Safety policies
  • Library bylaws
  • Emergency closure and compensation policies
  • Employee manual
  • Collection Bargaining Agreement(s) (if in place)
  • Insurance policy (the section to check specifically is the coverage for business interruption)
  • Up-to-the-minute declarations or advisories from relevant authorities and relationships (Center for Disease Control, congressional representatives, Governor, state representatives, County Health Department, Library System, local Civil Service contact, State Library Development rep, payroll service/entity handling payroll)
  • Employee Assistance Program (“EAP”) (if relevant)

After examining these resources, some libraries may find they already have “Emergency Closure,” “Quarantine Leave” and even “Pandemic Response” policies that address this question.  They might even find that their library’s EAP program will offer help to employees struggling to find childcare or eldercare.

Still other libraries may find that while they don’t have pandemic-specific policies, their policies for compensation during times of natural disasters or declared states of emergency will apply to this situation—including for part-timers.[1]

And finally, by examining the listed materials and working with the listed resources, a library can position itself to develop new, customized policies for safety (first!) and compensation continuity during a pandemic emergency.  Further, they will be able to coordinate their response with their system and emergency response efforts in their region.

So, with that said, below is the answer to the member’s question, which must be divided into two parts: compensation during emergency closure, and compensation during quarantine.

After that, I include commentary on the roots of the authority you’ll see in the answers.  And finally, I offer a sample policy and resolution for libraries that have no provisions for emergency closure pay and pandemic response, and want to proceed with maximum flexibility as they address this national crisis.

To the greatest extent possible, all of this should be done with the input of the library’s lawyer.

Compensation During Emergency Closure

NOTE:  Before taking any action, check to ensure your library’s collective bargaining agreement, if there is one, does not have a relevant provision regarding compensation during emergency closure.  This is critical.

A policy for compensation continuance during emergency closure is distinct from policies for paid leave (even though some libraries may already use their paid leave policies to address the ability to pay staff during an emergency).  Essentially, the library must identify if it 1) wishes to keep employees on call for their regular or reduced hours, even if the library is closed; and 2) what tasks those people can do, even if it is simply being “on call.

As the members question implies, a library’s provisions for this may vary based on the employment category of the employee (the variables might even go beyond the distinction of “part” and “full” time).

Here is a sample provision enabling this approach as part of an “Emergency Closure Policy” or “Pandemic Response Plan:”

Paid leave during emergency closure

When the library temporarily closes due to a declared state of emergency, and all or some employees are instructed not to come in to work, upon a vote of the board, compensation shall continue as follows:

[insert your library’s employee categories and method of compensation continuation; be careful to insert DURATION and any TIME/AMOUNT LIMIT of pay, and modes of calculation.  For example:

“Full-time staff shall be paid at their regular rate of pay.  Part-time staff shall be paid for their regularly scheduled shifts; for part-time staff with variable schedules, the weekly amount will be based on an average of the last three pay cycles, or as determined by the board.]

To be eligible for compensation during a time of emergency closure or reduced hours, employees must be ready, willing and able to work remotely on projects identified by library leadership during their regularly scheduled working hours, and must complete such duties as assigned.  When performing tasks remotely, employees should note the time worked through the usual process for logging hours.

Because an emergency compensation continuance policy builds on employees’ ability to work remotely, a policy for remote work is a good companion piece to this type of policy.

Libraries should also bear in mind that injuries during remote work can be covered by Workers’ Compensation, and should ensure that any remote-work policy consider how the set up remote working as a safe experience.

Quarantine Leave

“Quarantine leave,” is paid time off during a time of quarantine (which can be imposed, or self-imposed), as a specific policy allows.

NOTE: “Quarantine leave,” is actually always available to state civil service employees.  In fact, at the onset of New York’s Covid-19 response, the Governor declared that all state civil service employees would be eligible for up to two weeks of quarantine leave,[2] regardless of classification, and as of this writing, nationwide coverage for certain private-sector employees is under development. CSEA, the union for public sector civil service workers (including library employees), is posting updates on this, as well, and libraries with CSEA bargaining units should stay attuned to that resource.[3]

How can publicly funded libraries implement Quarantine Leave?

NOTE:  Before taking any action, check to ensure your collective bargaining agreement, if you have one, does not have a relevant provision (chances are it will).

A good model for a “Quarantine Leave Policy” can be found in the state’s civil service law; below is a sample, with some additional language regarding part-time compensation:

If a full or part-time employee who is not personally ill is required to remain absent because of quarantine imposed by a governing authority, or if during a declared emergency an employee determines to self-quarantine and such employee presents a written statement of the attending physician or local health officer proving the necessity of such absence, such employee shall be granted leave with pay for the period of the required absence. Such pay shall cover the employee’s routine hours (part-time hours will be based on an average of the most recent three pay periods, or as set by the board).  Prior to return to duty, such employee may be required to submit a written statement, from the local health officer having jurisdiction, that return to duty will not jeopardize the health of other employees.

To be eligible for compensation during quarantine leave, employees must be ready, willing and able to work remotely on projects identified by library leadership during their regularly scheduled working hours, and must complete such duties as assigned.  When performing tasks remotely, employees should note the time worked through the usual process for logging hours.

Like with all employment policy, this is not something to adopt without a thorough scan of the above-listed documents, to ensure your library has no contradicting bylaws, contracts, policies, or hire letters.

We just want to pay people during a hard time, what could the concerns be?

There are three primary things that can get in the way of simply committing to pay people through a state of emergency: a union contract with set terms regarding emergency pay, concern over “unconstitutional use of public funds”, and budget concerns.

Concern #1: Union contracts

As you’ll note from my many caveats and uses of bold in the sections above, paying attention to a union contract (if your library is a party to one), and working with your local bargaining unit as you craft your pandemic response is a high priority at this time.  A good union will be looking out for their members’ health and well-being—but will also be looking out for failure of the employer to adhere to the current contract.

What happens if your union contract states that part-timers will not get emergency pay for emergency closure or quarantine?  Unless something is changed, in writing, and agreed to with the bargaining unit, OR your library has a “reserve clause” clearly allowing changes in a time of emergency (don’t assume you do unless it has been reviewed and ok’d by your lawyer), your part-timers will not be getting paid.

Contracts with civil service employers in New York can be looked up here: https://perb.ny.gov/nys-perb-collective-bargaining-agreements-a/.  You can see many libraries, large and small, are listed.

I took a quick look and of the libraries I checked, different libraries have different emergency closure pay provisions.  So, what happens at the library over in the next county--even if they are in your system--might not be what can happen at yours.  This is a very careful thing to pay attention to, as it may affect employee well-being and morale.

That said, if leave with pay is barred by a CBA[4], and your board wants to address the issue of quarantine leave and compensation continuity, now is the time to contact your library’s lawyer, and head to the table (or, more properly during this time of sensible social distancing, a teleconference) with the head of your bargaining unit.

I imagine the head of the union will make the time; after all, this is all-hands-on-deck.

If your library isn’t in a collective bargaining agreement, while you have a lot of pressures hitting the current situation, this issue isn’t one of them.

Concern #2: Allegation of improper use of public funds

Article 8, §1 of the New York State Constitution states: “no county, city, town, village or school district shall give or loan any money or property to or in aid of any individual.”  The reach of this clause includes public libraries.[5]

Concern about this clause can be seen in the member’s question; from a certain point of view, paying staff (full or part-time) when they aren’t at the library doing their routine tasks could seem like a “gift.”  After all, the employee is not at work, and they are getting money.  Sounds like they are getting something for nothing, right?

Wrong.  When implemented with careful attention to detail, such emergency response policies are part of a legal and sensible compensation structure that enables something for something.  What is that “something?”  A stable, reliable work force anchored by a stable, reliable income, ready, willing and able to work during a time of emergency (just when people need libraries most).

But such policies cannot be improvised, half-baked, or under-documented.

Armed with the information that properly effected and documented compensation during emergency closure or quarantine is not a violation of state law, if a public library doesn’t have an emergency closure policy or quarantine policy, and they want implement them now, a good approach is to gather the resources listed at the top of this answer, assess any pre-standing obligations your library has, and then adopt or refine some policies.

Here is a sample board resolution for a library that confirms it has no agreements or policies to the contrary and desires to set up maximum flexibility during this state of emergency:

WHEREAS on March 7, 2020, the Governor of the State of New York issues Executive Order 202 declaring a state disaster emergency; and

WHEREAS, as a result of the world-wide pandemic underlying the state disaster emergency, the library may need to close, reduce hours, or reduce staff reporting for duty; and

WHEREAS, the board has duly reviewed the public safety and budget considerations of reducing operations and continuing regular pay during the state of emergency; and

WHEREAS, the board recognizes that to best serve its area of service and protect the health of the community and its employees, employees may need to be directed to report to work at the library, to work remotely, or to be on-call but not report to work during routine hours; and

WHEREAS, the library is a community resource for critical information at this time, and must remain ready to respond to community needs as is within its capacity and budget;

BE IT RESOLVED that the board adopts the attached policies on “Quarantine Leave” and “Paid Leave During Emergency Closure;” and

BE IT FURTHER RESOLVED that the board shall continue to compensate full and part-time staff as allowed by law and provided by the policy for Quarantine Leave and Paid Leave During Emergency Closure between [DATE] and [DATE]; and

BE IT FURTHER RESOLVED that the library director and the [Executive Committee] of the board shall maintain ongoing communication and monitor the best approach to address safety and operational concerns, and shall inform the full board of same; and

BE IT FURTHER RESOLVED that the board shall reconvene on [DATE] to reconsider the continuation of compensation in light of what may be needed for the community and the library to recover from the state of emergency and return to normal operations.

 

CODA: A Note on Authority

What laws create a public library board’s authority to craft emergency response policies?

This starts with the basics. Education Law §259 required all moneys received "from taxes and other public sources" in the name of a library to be kept in a separate fund.[6]  And regardless of who is “holding the money,”  “the ultimate control of the use, disposition and expenditure of the library fund moneys is vested in the library board….” (1991 Opns St Comp No. 91-57, p 158) [emphasis added].

As the New York State Comptroller has stated repeatedly: public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see Opn No. 91-57, supra; 1983 Opns St Comp No. 83-32, p 37; Buffalo Library v Erie County, 171 AD2d 369, 577 NYS2d 993 affd 80 NY2d 938, 591 NYS2d 131).

So even if a library’s sponsoring village, town, or city has a defined emergency closure policy that precludes paid time off for part-timers, the library can decide to adopt their own (that said, if the municipal policy is a good one, the library can choose to “borrow” it and go along for the ride…but should still specifically adopt the policy as its own).  As the Comptroller put it in opinion 1981 N.Y. 1981 N.Y. St. Comp. 485: “…it is the library board which determines the vacation and sick leave benefits for library employees. It is our opinion that a library board of trustees has implied authority to provide for sick leaves and vacations for library employees.”[7]

What reigns this in?  Compensation paid as part of any emergency closure or leave policy must be established, tracked, paid, and accounted for in a way that survives the scrutiny of an audit.  The terms must harmonize with the obligations of any relevant collective bargaining agreement.  And ideally, such an approach should bake in conditions to help the taxpayers see that compensated time out is in the best interests of the public.  That is not an easy array of requirements to meet.

But done right,[8] can emergency closure pay, or quarantine pay, for part-timers be “legal?”

Yes.

Author bio:  Stephanie Adams provides the “Ask the Lawyer” service to the library councils of New York.  For over 10 years she was in-house counsel for Niagara University, where she was (among other things) a member of the University’s pandemic response team.

 



[1] One elegant policy I found was simply “If the Library closes because of extreme weather conditions or emergency conditions, employees scheduled to work will be credited with time as if worked. Previous time off requests supercede any credited time.”  Go Geneva Public Library!

[4] “Collective Bargaining Agreement”

[5] It is the section that, along with many other things, bars libraries throwing extravagant parties for library volunteers.

[6] (1986 Opns St Comp No. 86-54, p 86),

[7] The Comptroller cited some more authority there: “see Opn No. 80-199, supra; 1961 Atty Gen [Inf Opns] 105; Education Law, §§ 226(7)260).”

[8] “Done right” means: consistent with your library’s bylaws, collective bargaining agreement, and employee manual, with particular attention to consistent and compliant use of the full-time and part-time categories, and FLSA status.

Tags: Labor, Emergency Response, Employee Rights, Quarantine Leave, COVID-19

Topic: Previous Employer re-assigned authorship of LibGuides - 3/12/2020
Many librarians create and post LibGuides through Springshare.  Right now, when an employee l...
Posted: Thursday, March 12, 2020 Permalink

MEMBER QUESTION

Many librarians create and post LibGuides through Springshare.  Right now, when an employee leaves a library, the LibGuides they created can be attributed to another library employee after they leave.  Does this create a legal concern?

WNYLRC ATTORNEY'S RESPONSE

 I am a hands-on kind of lawyer.  When I do a real estate deal, I visit the property.  When I advise a historic preservation group, I drag my kids to see old houses.  When I represent a bakery, I try not to pack on an extra five pounds, but it’s always touch-and-go.

So, when this question came in, I hopped on SpringShare and checked out their product description for LibGuides, and pretended I was going to write one.  I delved into the license terms and the mechanics of the utility.  I observed how their various products work together, or a la carte.

On the SpringShare website, LibGuides is summarized this way:

LibGuides is an easy-to-use content management system deployed at thousands of libraries worldwide. Librarians use it to curate knowledge and share information, organize class and subject specific resources, and to create and manage websites.”

I checked in with a few librarians I know (one of whom works in my office), and they reported that yes, the product is widely used and popular.  While mine was a very unscientific survey,[1] the  day I hopped on, SpringShare’s web page boasted participation by “6,100 libraries” and “82 countries” and “130,300” librarians.

I noticed a lot of legally interesting things when I was down the SpringShare rabbit hole, but I what I focused on was the member’s question: is there a legal concern related to attributions of LibGuides content?

I started with the LibGuides License,[2] which states:

OWNERSHIP OF DATA: Licensor does not own any data, information or material that you submit to the Software ("Customer Data").

In other words, SpringShare (the licensor) confirms that the subscriber (the licensee) owns the content they put on LibGuides.

The License then goes on:

You, not Licensor [remember, Springshare is the “Licensor”], shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Licensor shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.

This means that while the licensee (the subscribing librarian or library) owns the content, they are also responsible for the consequences created by any content they don’t have the rights to (infringement claim, violation of privacy claim, etc.).

This is a very typical approach for content-sharing platforms.

The License then states:

In the event this Agreement is terminated, Licensor will make available to you a file of the Customer Data in XML format within 30 days of termination if you so request at the time of termination.

Isn’t that generous?  If you remember to ask nicely at the time you terminate the contract, you (the Licensee) have thirty whole days retrieve your property.[3]

This property arrangement is at the heart of the member’s question.  SpringShare claims no ownership of the content placed on LibGuides.  That content, unless licensed from another, is supposed to be owned by the licensee (the person or entity contracting with SpringShare for the service).

But is the “licensed LibGuides user” the content owner?

That depends.

In the member’s question, the “licensed LibGuides user” was probably the library (it would be very unusual, and not business-appropriate, for an account for an institution to be in an individual person’s name).  So, the library is the one getting assured they own the content put up through the account, and the library is the entity responsible in the event the content causes a problem (infringes copyright, invades someone’s privacy, etc.).

Now this is where the issue gets sensitive.  Under copyright law, content generated by employees, AS PART OF THEIR REGULAR DUTIES, is owned by their employer—unless a contract, policy, or hire letter says otherwise.  This “default rule” is spelled out in section 201(b) of the Copyright Act.[4]

How does this play out in the work environment? It varies.  Many librarians are part of a union, which means the written work they generate as part of their job might not be subject to the above-described “default rule” (a collective bargaining agreement can change the terms of employment related to copyright).  Still others work in environments where this “default rule” has been changed through a policy, or a hire letter.

This lack of uniformity means that any librarian composing LibGuides, who wants to use their compositions after they move to another job, should make sure they know where they stand when it comes to “employee-generated intellectual property.”  Does their workplace follow the “default rule?”  Does a union contract, policy, or hire letter change the “default rule?”  And is writing a LibGuide even part of their duties?

This is critical, because depending on who owns the content, they are free to do as they like with it: keep it up, remove it, change it, update it, etc. (of course, what they do on LibGuides is limited by the License and the technology).  And it is also critical because the current configuration[5] of LibGuides seems, to me, to create a potential problem.

Now, that addressed the legal part of the question; the answer is: yes, there are some legal concerns.  But the “legal” concerns might not be the full scope of the concerns presented by the question’s scenario.  Attribution of authorship is different from ownership, but it can be a critical issue of integrity.

My understanding of how LibGuides functions is that the account holder can change the roles, authority, and people admitted to create, modify, or access the content.  Within LibGuides, subscribers have the ability to assign users (Admin users, Regular users, Editor users, Contributor users, and Patron users) with different levels of access and authority.[6]

Within this structure, “Admin users” (who have the highest level of authority over an account), manage the Licensee’s use of the service.  The settings are changeable, and different LibGuides can be assigned to different users.

But what was WILD to me is that when a librarian leaves a library, to maintain the LibGuide, the library has to assign another staffer to the Guide.  That’s fine and makes sense, but because of LibGuide’s interface, that new person is then listed as the librarian in charge of the guide, and the way the screen looks (to me) the implication is that they are the author.

I believe that is the genesis of this question; people who took pride in their creation of a LibGuide first attributed to them are now seeing (implied) authorship (seemingly) attributed to another.  I have to admit, whether I owned it or not, that would sting a little.  Writing, even if it’s for your job, can be a very personal endeavor.

This seems entirely due to the design of the interface.  Between you, me, and the Internet,[7] it seems like a needless and utterly solvable problem.  And while not necessarily a legal issue (although if the former employee owns their work, it could be) it strikes me as a serious ethics/integrity/relationships issue.

Authorship is something people take seriously, especially in the arenas of academia and publishing—worlds in which librarians play an essential role.

How can this be solved?

First, LibGuides might want to think this through and develop a solution.[8]  But until then, libraries using LibGuides should assess their legal position (do they own their employees’ work under the “default rule”?  Or does a contract or policy say otherwise?) and, think how this phenomenon rests with their values.  On the flip side, librarians who create a great LibGuide and then want to move on in their professional careers should pay attention to who is the LibGuide’s “owner” and be mindful that a LibGuide owned by their employer will not always be in their name.  Further, the mutable nature of LibGuides (they are designed to be updated, altered and changed) means you might not always want to be associated with what the Guide turns into!

Thanks for a great question.



[1] “Unalytics.”

[2] “Terms of Use” and licensing agreements can be treacherous!  Services change them from time to time.  This was posted as of 3/6/2020, but always get your contract answers straight from the source.

[3] As a rule, I try to avoid snark and sarcasm in the “Ask the Lawyer” service.  Such rhetoric doesn’t age well, and there are defter ways to be funny.  That said, this one deserves some snark.  Thirty days, and then potentially thousands of dollars of your assets are lost?  Not so great.

[4] The law reads: “In the case of a work made for hire [which includes “a work prepared by an employee within the scope [their] employment”] the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.”

[5] As of March 6, 2020.

[6] On March 6, 2020, I found these categories on the LibGuides FAQ at ask.springshare.com/libguides/faq/1119#general.

[7] Hi, SpringShare!  I am confident you can fix this!

[8] For instance, I would create a “Legacy Content and History” option for customers, where the evolving work and chain of authors could be tracked.  Of course, that would still put the ultimate fate of the content in the hands of the employer, but it would empower them to maintain good feelings between librarians.

Tags: Copyright, LibGuides, Licensing, Ownership

Topic: Using music videos for projects - 3/5/2020
An internationally known band released various music videos for the purpose of a contest they were...
Posted: Thursday, March 5, 2020 Permalink

MEMBER QUESTION

An internationally known band released various music videos for the purpose of a contest they were holding. Fans were asked to create a new video using the clips provided. One of our professors downloaded and saved the music videos and would like to share them with his students so they can use them for an editing project. He would like to post the copied files in his password protected class management system (Black Board.) However, we would also like his students to be able to share their projects either in an eportfolio or online.


My initial reaction is that he should get permission from the copyright holder / publisher for permission even though the band released the content for a contest. I see many danger zones.

WNYLRC ATTORNEY'S RESPONSE

Some of the trickiest copyright questions I get relate to student work.

Why are they tricky?  Because of a self-imposed rule I have: find a way for the work to be donedon’t let copyright interfere with art and science.[1]  In other words, our copyright glass of scholarship should be half full…of scholarship, not fear of lawsuits.

That said, most readers of this column will know that “educational use” does not justify the wholesale infringement of works, even if the purpose is scholarship.  To use a work without permission, the use must meet the criteria of “fair use.”[2]

But I’m getting ahead of the question.  Let’s bring it back to the beginning.

What’s the tricky issue here?  In this scenario, the band “released various music videos,” and asked the public to create new works based on the old, for entry into a contest.[3]

The band was essentially asking the public to create “derivative works,” which are new works based around a copyright-protected original (think movie sequels, musicals based on books, and paintings of paintings).

The faculty member plans to retain copies and direct students to use them after the completion of the contest, both for assignment and portfolio purposes.  Is that cool?

Now, if the band’s videos were expressly put into the “public domain” for the contest (meaning: no copyright protection) the question ends here. If the clips aren’t protected by copyright, the faculty member’s plans are just fine (it’s cool).[4]

Further, if the band gave a perpetual, irrevocable permission to any person who generates a new video using the clip, to use the clip for whatever reason they want, the question also ends here (again, retain the copy and using it as planned is cool).

But if instead, the band kept the videos protected by copyright,[5] and gave the public permission for only a limited amount of time (say, the duration of the contest), for a limited amount of purposes (say, for entering the contest), then yes, we are in a “danger zone” (not cool).[6]

However, before I agree that the ideal solution is to get the copyright owner’s position, I do want to make a case for fair use, which allows people to use copyrighted works in way that would otherwise be infringing (make copies, make derivative works, and even at times to sell them).

Based on the scenario described, it is not clear if the retention of copies as described in the scenario would be a fair use.  It would have to be justified under the four fair use factors, with the school and student being able to show that the retention of a complete copy and use of the clip for assignment and student portfolio purposes was justified.

The way for a school to do this is to use their fair use assessment form[7] and retain a copy.

To me, aside from the legal concerns, this is also an ethical issue.  A faculty member should not encourage a student to unknowingly infringe another’s copyright, especially if they know that student might include that work in an online portfolio of work.  This could put the student in legal trouble that is independent from the liability of the school.

Students, as individuals, do not have the same protections that higher education professionals have.  Schools, if they conduct a bona-fide fair use analysis, can limit the damages from alleged infringement.  Schools also usually have insurance for this stuff.  Newly-minted B.A.’s and M.F.A’s typically do not have the same resources.  This means, when the student gets sued, they are in a much riskier place than the school or the faculty member.

All that said, remember the mantra: find a way for the work to be donedon’t let copyright interfere with art and science.  What does this mean?  While being cautious to not promote infringement, a faculty member in a medium such as film, or music, should not let students operate in ignorance of fair use, which is so important to both mediums.  Without sampling, without artistic call-and-response, we suffocate creative innovation.

If that sounds complicated, it is!  I will be reaching out to this member to talk the specifics through (that part is confidential).



[1] Promotion of “science and the useful arts” is the reason we have IP law in the first place (see U.S. Constitution, Article I, Section I, Clause 8).

[2] Or Section 110(a) or (b) of the Copyright Act. But you can read out that here [INSERT PERMALINK].

[3] As gimmicks go, I like this one.  I wish my favorite author, Umberto Eco, had invited me to write a chapter of “The Name of the Rose.”  I would have had Adso and William fire-proof…uh, sorry, spoiler.

[4] I speak legally, not pedagogically.  I have no idea if this would be a good film class assignment; I was a Russian History/U.S. Constitutional law major at an experimental school with no grades or tests (Hampshire College).  Other than once attending a class on the classic film “Battleship Potemkin” and whatever skills can be gleaned from serially watching the musical “1776,” I have zero credentials to evaluate the curriculum of a film course.

[5] Which, by the way, the band might not even own.

[6] For the record, if I were the lawyer advising this band, the contest terms would have contained a clause allowing my client to revoke permission to use the clip and participate in the contest in the event an entry was contrary to their values (racist, sexist, transphobic, etc.). 

[7] More information using a Fair Use Assessment form can be found here: https://copyright.cornell.edu/fairuse

Tags: Copyright, Derivative Works, Fair Use, Music

Topic: Video and photography of students in an academic library - 2/13/2020
[I work at the library of a public university.] Every year we have requests from students in Media...
Posted: Thursday, February 13, 2020 Permalink

MEMBER QUESTION

[I work at the library of a public university.] Every year we have requests from students in Media Arts program to videotape in the library. They ask me to grant permission. I do not feel comfortable granting permission for others to be filmed.

Do students in the library have a right of privacy that would prohibit filming them as they go about their normal business in the library?

We would like to have a written policy.

The images would not be used for commercial purposes, just as an academic assignment.

 

WNYLRC ATTORNEY'S RESPONSE

When this question landed on my desk, I had recently watched a viral video[1] on YouTube about how some people have no "inner monologue".

The video explained, in plain and accessible terms, that there are people who, rather than internally narrate their world, don't have constant chatter in their heads.  They don't have an "inner voice."  Rather, their brains "map" their reactions to the world, and those reactions are only put into words through vocalization.

The reason the video went viral is because for those of us with a strong inner monologue, the idea of living without one was mind-blowing.

My brain was still wrestling with this concept ("You mean there is no narrator in your head?  None??"), when I read the member's question.

And when the question hit my brain, just like that, I got it.

When I read this question, I didn't hear the words, but I saw the answer.  I couldn't articulate it, but it was there: a Venn Diagram of overlapping legal concerns,[2] "mapped out" in my head, just like the video described: CPLR 4509; FERPA; NYS Image Rights Law.

Only after I had mapped out that diagram in my head could I unpack the details and start to compose.

So, before we delve into the question, I want to thank the member for inspiring a bit of neuro-diverse-empathy in yours truly.  Our brains are endless mysteries; it's good to occasionally see ourselves differently.

And with that, here is my "(Academic) Library Right to Privacy Venn Diagram," unpacked and articulated, and, per the member's request, set out in a "Policy" format, ready to customize for your academic library.

(NOTE: Why are there TWO policy templates?  Because people may have a context-specific first amendment right to film in a public library or the library at a state university, while at a private academic library, only the rules of the institution will apply):

[PRIVATE COLLEGE/UNIVERSITY NAME] Policy on Academic Library Privacy

 

Related Policies:

 

[FERPA Compliance Policy,

Student Code of Conduct,

Employee Handbook,

Patron Code of Conduct,

Campus Guest Policy,

Institutions' Data Security Policy]

 

Version: DRAFT FOR CUSTOMIZATION

Passed on:  DATE

Positions responsible for compliance

FOR USE IN PRIVATE COLLGES AND UNIVERSITIES

POLICY

The state of New York provides that library records containing personally identifying details regarding the users of college and university libraries ("Patron Records") shall be confidential, except to the extent necessary for the proper operation of the library.

To safeguard this right, the [NAME] library will observe the below protocols.

No Patron Records, including but not limited to circulation records, computer searches, information requests, inter-library loan requests, or duplication requests, shall be disclosed, unless 1) upon request or consent of the user; or 2) pursuant to subpoena, court order, or where otherwise required by statute.

The use of security footage showing access to library resources (computers, collection materials, duplation technology) is considered to be a Patron Record.  NOTE: As authorized by law, the Library may release such records incident to promoting proper operation of the library.

No recording of library users by any third parties is authorized on the premises without the filmed individual's express consent.  This includes recording for academic, professional, or social purposes.

To the extent Patron Records overlap with FERPA-defined education records, the Library shall interpret the law to provide maximum assurance of the privacy of the library user, while also reserving the right to promote the proper operation of the library.

 

 

[PUBLIC COLLEGE/UNIVERSITY NAME] Policy on Library Privacy

 

Related policies:

[FERPA Compliance Policy

Student Code of Conduct

Employee Handbook

Patron Code of Conduct

Campus Guest Policy

Institutions' Data Security Policy]

Version: DRAFT FOR CUSTOMIZATION

Passed on:  DATE

Positions responsible for compliance

 

FOR USE IN PUBLIC COLLEGE AND UNIVERSITIES

POLICY

The state of New York provides that library records containing personally identifying details regarding the users of public college and university libraries ("Patron Records") shall be confidential, except to the extent necessary for the proper operation of the library.

In New York, libraries at state, county and municipal institutions may have specific status under the Open Meetings Law and various civil rights laws, but such status does not eliminate their obligations under CPLR 4509, nor limit patrons rights to access services without fear of that record being accessed by another.

To safeguard this right, the [NAME] library will observe the below protocols.

No Patron Records, including but not limited to circulation records, computer searches, information requests, inter-library loan requests, or duplication requests, shall be disclosed, unless 1) upon request or consent of the user; or 2) pursuant to subpoena, court order, or where otherwise required by statute.

The use of security footage showing access to library resources (computers, collection materials, duplation technology) is considered to be a Patron Record.  NOTE: As authorized by law, the Library may release such records incident to promoting proper operation of the library.

Individuals or representatives from the media who wish to make recordings in the unrestricted areas of the library must adhere to the following rules:

  • To record students or patrons generating Patron Records (conducting internet searches, retrieving materials, using materials, checking out books, requesting information at the Reference Desk, etc.), the patron's permission must be obtained in advance; for minors, the written permission of their guardians or parents must be obtained;
  • Recording of the Circulation Desk(s) or Reference Desk(s) is forbidden if the area is staffed and serving patrons;
  • Recording and/or requesting permission from patrons and students must not disrupt normal operations of the library.

To avoid inadvertent violation of these rules, individuals or representatives from the media who wish to make recordings in the library may, but are not required, to discuss their projects with the Director; however, neither the Director nor staff can give permission to waive this policy or give permission to record patrons or students.

Conduct that would be barred by any other policy is not legitimized by the presence of a recording or transmitting device; this includes harassing patrons or staff, or any behavior that violates the rules of the institution.

To the extent Patron Records overlap with FERPA-defined education records, the Library shall interpret the law to provide maximum assurance of the privacy of the library user, while also reserving the right to promote the proper operation of the library.

 

Now, before I go, just a few words on working with these policy templates.

First and foremost, while templates can be a great starting place (and these are designed to inspire generative conversation), they should NEVER be adopted without a thorough analysis and scrubbing by your institution.

For instance, a public or private academic institution could already have a campus-wide policy on filming people.  Or, on the flip side, the institution could have a strong Media Communications or Film department that relies on being able to send students out onto the campus for filming; a policy like this, with no warning, could cause an unnecessary confrontation.[3]  Policies within smaller units at a big institution can cause inconsistency and friction that can be hard to anticipate, unless you bring in some colleagues to pass the policy with.

So before passing a policy based on a template I've provided, here is who I suggest should be on an academic institution's "Library Privacy Policy Collaboration Team," and why:

The Director of the Library (I trust the reason why is obvious), and at least one staff member (the staffer will provide an in-the-trenches perspective; plus, collaborating on that policy is great training for following that policy).

The Director of Campus Safety/Security/Police.  Why?  Because 1) they might have to help enforce the policy; and 2) it is important that they understand the privacy obligations of the library.  Further, at a public institution, they will likely be a ringer who understands the nuances of "quasi-public" space (for first amendment concerns[4]).

The Dean of Students: Why?  Because 1) they might have to help enforce the policy; and 2) it is important that they understand the privacy obligations of the library are for the benefit of the students.

The Director of IT: Why?  Because 1) it is important that they understand the privacy obligations of the library; and 2) they must ensure those obligations are supported by the institution's current and future information technology.

A student government rep: Why?  Because 1) it is important that students have a voice in policies that are meant for their benefit; and 2) students can help articulate the reasons and importance of policies in ways their peers can relate to.  Bonus reason: participating will look good on their apps for grad school!

The institution's lawyer and/or compliance director: Why? Basically, you want the person who keeps an eye on all the rules at your institution, to make sure they are harmonized and are consistent with each other.  Institutional policymaking cannot be done in isolation.

Optional, but a gold-star member: your institution's Family Rights Education Act (FERPA) compliance officer (for a discussion on how FERPA and library privacy obligations interact, see https://www.wnylrc.org/ask-the-lawyer/raqs/67.).

And, in the case of this member's question: the Chair of the Media Arts Department: because as you meet, you can explore setting up ways for the film students to get the permission and image releases they need, in a way that supports their projects but respects the rights of others…skills they will need in "real life."

Okay, I can hear some of you (in my inner monologue!) saying: that's a huge meeting!  Do I really need to convene all those people?

Based on my experience as an in-house counsel at a University (ten years or so), my answer is: YES.

Why?  Because you don't want your first discussion about privacy with Campus Safety to take place when they ask you for the internet search records of a student who was reportedly making a weapon in his dorm room.  You don't want your first discussion about privacy with the Dean of Students to occur when they demand to know if a student was in the library at the time they are accused of driving drunk across campus.  You don't want your first discussion about privacy with a student rep to be when a "first amendment auditor"[5] shows up at your public university campus.  And you don't want to jeopardize your relationship with the IT Director by finding out she set up security cameras you don't know about.

And most critically: Privacy, security and safety on any college/university campus are a collaborative effort, and your library deserves special consideration within that effort.  Why?

No other space on campus has your precise mission and obligations.[6]  A team that knows and supports that mission, and those obligations, can be a great asset.

This is true whether your library's commitment to access and privacy is fully articulated by the team members' constant inner monologues, or is simply hard-wired into the "maps" in their heads.[7]

By jointly working on a policy, and paying attention to the details, either is possible.

Thanks for a great question, and best wishes for developing a strong, coordinated, customized policy!

 



[1] You can enter the rabbit hole here: https://youtu.be/u69YSh-cFXY I hope it's still there!

[2] NY CPLR 4509, FERPA, Civil Rights Law §50, the first amendment, 20 U.S.C. 1011(a), and a bunch of laws on trespass, Public Officers Law, etc.

[3] I'm a lawyer, so I am very happy about the concept of "necessary confrontation," but I like to save people time and stress whenever possible.

[4] This is not the place to dissect the first amendment's impact on public college/university libraries (see next footnote), but for the record, the "Higher Education Opportunity Act" emphasizes that ALL higher education institutions should be a place for "the free and open exchange of ideas."

[6] That said, an on-campus Health Services facility, Campus Counseling, Records, or other place with confidentiality obligations will have similar needs that might be instructive.

[7] I would like to apologize for any painful pseudo-science in this "Ask the Lawyer."  Stupid viral videos.

Tags: Policy, Privacy

Topic: Copies of music - 2/6/2020
Can a school or library hand out copies of sheet music to students and keep their copies of the or...
Posted: Thursday, February 6, 2020 Permalink

MEMBER QUESTION

Can a school or library hand out copies of sheet music to students and keep their copies of the originals (as long as they had enough copies for each performer) to prevent the loss of the originals? The copies would be destroyed after the performance.

WNYLRC ATTORNEY'S RESPONSE

One of my all-time favorite TV shows is Gilmore Girls.

Aside from being the origin of many expressive phrases ("Oi with the poodles already!"), as a parent, Gilmore Girls gave me a concept I used almost daily: "jam hands."

What is the origin of "jam hands"?  In Season 2, Episode 5, “Nick & Nora/Sid & Nancy”, the perpetually grumpy "Luke" character, upon being confronted with the prospect of childcare, confesses to a distaste for children: because they are loud, because they are messy, and because their hands always seem to be coated in jam.[1]

I have two kids.  "Jam hands" are very real.

My oldest kid (15, as of this writing) has paid his dues playing violin and piano, so I have personally witnessed the damage "jam hands" can do to instruments and music.  It must be jam warfare out there.

And of course, a kid can lose sheet music simply by putting it in their backpack.[2]

I don't know if “jam hands” and possible “backpack black hole” are the big reasons for this member wanting to give students back-up copies while retaining the "real" ones in a file, but I suspect that is at least part of the rationale.  Why wait until the good copies get destroyed or go missing?  Why not make back-up copies in advance?  If "fair use" creates educational exemptions to infringement, isn't this a use that qualifies?

Sadly, when Congress developed the "fair use guidelines" for educators,[3] they did not invite any parents to the advisory committee, and so the "jam hands" and "backpack black hole" clauses did not make it into the final guidelines.  Instead, those guidelines specifically prohibit copying for performance, except for:

Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.

So: no copying in advance…but, in the face of an "imminent performance," copying to replace "unavailable" purchased copies is okay (provided the replacement copies are "substituted in due course").

What does this tell us?  In this case, it's better to be re-active, than pro-active.  When a student jams up or black holes a copy, an educator can make replacement for a performance.  Just make sure you get around to purchasing and substituting (instead of destroying) those "replacement copies," in "due course."

I would of course love to leave this answer right there, having dispatched sage wisdom and quoted from decades-old guidance from Congress.  But I have no doubt that by now, at least one reader has said "Well, what's 'due course'?" And I don't want to be accused of fraternizing with the tomato.[4]

A lot has changed since the guidelines I quote above were drafted.[5]  Inspired by this question, I took a look at the sheet music market, to see if the landscape for fair use had shifted.[6]

As I am sure any music teacher reading this knows (but what was news to me), these days teachers can often print sheet music on demand (for a price).  And while of course not every copy a school has in print is available for download, the "emergency" aspect of the clause quoted above loses some heft when a copy can be obtained for $2.25 online.

THAT SAID, I know music program budgets rise and fall on nickels and dimes. I am not suggesting that a teacher or librarian solve this problem by simply immediately buying new copies; rather that when it comes to deciding what amount of time is "due course," the answer is: no later than when you can make the replacement purchase as part of your next budget cycle.

That said, before stressing about fair use and "replacement copies" and "due course," always check the fine print on the music (and on copies available from other sources).  While on my sheet music web site tour, I noted that some (but not all) of the sheet music I saw for sale had the phrase "this copy may be reproduced by the purchaser," and other flexible licenses.  So, for each piece of music you want to copy, before you worry, check the fine print.  You might have more permission than you think.

I wish I could give a better answer in the fight against “jam hands.”  But at least your answer didn’t fall into a “backpack black hole!”



[2] Don't watch your kid do this.  It's addictive.

[3] Set forth in the Copyright Office's "Circular 21," which is found here: https://www.copyright.gov/circs/circ21.pdf

[4] Another beloved Gilmore Girls reference

[5] For instance, Gerald Ford is no longer President.

[6] I particularly appreciated the functionality of https://www.jwpepper.com/sheet-music/welcome.jsp.  As a non-musician, I am not qualified to comment on their selection or quality.

 

Tags: Copyright, Music, Photocopies

Topic: Friends of the Library not being friendly - 1/30/2020
Is it legal for a Friends of the Library group to hold their funds and not to use those funds to s...
Posted: Thursday, January 30, 2020 Permalink

MEMBER QUESTION

Is it legal for a Friends of the Library group to hold their funds and not to use those funds to support the library's mission? OR refuse to pay for library program and services when ask by library staff?
Can they lose their 501c3 status, if it is proven that the funds are not being used to benefit the library?

WNYLRC ATTORNEY'S RESPONSE

Before we address what may be the clear signs of a dysfunctional relationship between a library and its "Friends," let's explore the basis for the Library-Friends arrangement.

A public library, hemmed in by many laws, regulations and pressures governing fiscal operations, often enters into a cooperative agreement with a "Friends" group--an independent, usually "501(c)(3)"[1] corporation who can raise and spend money unburdened by such obligations.

Here's an example of how this works:

A town's library wants to create a special collection on "Local African-American Heritage"…a project that will be done in collaboration with a noted Black historian, the Black Studies department of a nearby college, and the archivist of a historically Black church in the town.  The initial $10,000.00 donation to kick off the collection was left to the Friends by a donor in their will.

The Library and Friends create a joint committee to make the special collection happen.  As envisioned by the joint committee, the project will involve renovation of a room in the library previously used for community meetings, as well as the acquisition of a wide range of books, museum-quality and ADA-compliant signage for the walls, and an oral history project housed on special interactive technology.  The library's staff will receive special training on the resources and the room.

The new section's "Grand Opening" will feature a keynote speaker who some town residents find controversial.  After the ribbon is cut (the Friends already own giant scissors) the Friends will host an off-site catered reception featuring a local rapper, which donors, trustees, project collaborators, staff and the media can attend for free.

Through careful planning by the joint committee, the details, budget, procurement procedures, and contracts for the room and opening events have been determined, and the bills are being paid entirely by the Friends.  However, the contracts involved are not so simple.

The construction contracts were bid and had to follow all applicable procurement laws and regulations.  The invoices for the new books are only in the name of the library.  The off-site venue and catering contracts are only in the name of the Friends, but the contract expressly "holds harmless" the library.[2]  And although her speech will be in the new room, the contract for the speaker is only in the name of the Friends…a tactic used to avoid community accusations that taxpayer money was spent to generate controversy.[3]

How does a library and its Friends reach this high-functioning ideal of collaboration?  It takes a well-crafted (and periodically re-evaluated) Collaboration Agreement,[4] sound policies, and  routine, informed communication by both sides.  This isn't to say there won't be a spat or two.  But with a commitment to those things, a library-Friends relationship can be appropriately challenging, while reaching a productive ideal.

The questions posed by the member show what can happen when things are less than "productively ideal."  They sound like symptoms of a problem I call "Friends Drift."

"Friends Drift" is where a previously strong relationship (or perhaps one that was never so strong), leads a library and its Friends to drift so far apart, they cease to collaborate effectively.  As a result, the types of great programming and support the relationship was forged to create cease to materialize.

What does "Friends Drift" look like?  It can have any number of causes and symptoms, but here are some solid hallmarks:

  • Collaboration Agreement doesn't exist;
  • Collaboration Agreement is over 7 years old without any revision in the past 7 years;
  • Collaboration Agreement can't be found by newer leadership and no one has initiated a step to draft a new one;
  • Prior operations depended solely on personal relationships and not written policy, so new members don't have a roadmap to proceed;
  • Lack of policy between the two groups for approving expenditures and fiscal planning;
  • Lack of routine productive meetings between the two groups;[5]
  • Lack of separate but coordinated strategic planning;
  • Lack of clarity about payment and fund-raising procedures;
  • Friends board making decisions that are the purview of the library board (or visa-versa);
  • Distrust and questioning propriety of the other's operations (as seen in the member's questions).

In the example provided by the member, the "Friends Drift" is so serious, the library is even wondering if the Friends are in compliance with State and Federal laws. 

This is particularly worrisome because as not-for-profit, charitable organizations, the fiscal and operational integrity of both a library and its Friends should NEVER be something one has to speculate about.  In New York, a public library must file an annual report with the Comptroller, while its Friends group must file both a "CHAR500" with the New York Attorney General and a form 990 with the IRS.[6]

Those mandatory filings should provide everything needed for mutual assurance fiscal responsibility and transparency.  If there is uncertainly even if those things are done, something has gone astray.

Which brings us to the member's specific questions, which I need to modify a bit, in order to provide accurate answers.

The first question is about whether a Friends group can withhold money from the library when the library asks for it. 

The answer to that is: YES, that might be okay.  In fact, it is often perfectly appropriate (and sometimes, highly advisable) for a Friends group not to pay for certain things for its affiliated library.  For instance, while this is a critical factor to be decided only by the library and agreed to by the Friends, I would encourage any library to think twice (and twice again) before using a Friends group to routinely supplement an annual operating budget.  In that same vein, a Friends group shouldn't pay (at least, not before deep and critical policy and fiscal analysis) a regular cost-of-living adjustment for staff salaries. 

Why? Because this type of predictable, routine expense is something that should be built into the base operating budget, and supported by the sponsoring tax base(s).[7]  While community budget battles aren't always pretty, they are an essential connection to your area of service.  Having Friends underwrite routine expenses to meet the library's basic Plan of Service is a potentially bad habit.  In my opinion, it is something an experienced Friends group will meet with resistance.

So, what are Friends for?  To put it in baking terms, they are for two things: whipping up delicious and beautiful frosting, and going from cupcake to cake.

The "frosting," is all the "extras" that are really flavorful essentials: speakers, new collections, special programming, or perhaps a really cool new set of carts or 3-D printer.  They should be highly visible and make things better…just like lovely pink frosting on top of a chocolate cupcake (and just like the frosting, they could actually be a huge factor in the appeal of the cupcake, and have more calories - I mean, cost more money).

And the journey from "cupcake to cake"?  That's a capital campaign.  Need a new building?  Hoping to expand?  Want to build a green roof with solar?  One-time physical upgrades are great candidates for "Friends" generosity and work, where the money can supplement a state grant or bond issue, or even take on the whole nut.

That's what Friends are for.[8]

Which bring us to the next (slightly modified) question: what if "Friends" funds aren't being released at all?  Can that risk their status at a not-for-profit?

Although there are some things Friends might not pay for, I can say with just as much assurance that any organization built solely around the well-being of a library, that does not use its resources for its not-for-profit purpose, is going to have some serious concerns.  And yes, those concerns could impact its charitable and 501(c)(3) status.

To diagnose those concerns, an attorney for the library (or the Friends) would need to review the group's charter, bylaws, recent CHAR500's and 990's, and (if possible) board minutes and correspondence with the sponsored library.  If there is a Cooperation Agreement, that should be reviewed.  The method of requesting funds, and the basis for the refusal should be assessed.  And of course, any exigent circumstances (were the Friends the victim of a theft?  Did they not meet their fund-raising goals?  Did they not yet conduct their audit?) would have to be considered.

Depending on what was found, legal action based on a violation of the Agreement could be threatened/brought by the sponsored Library, or a complaint to the New York Attorney General Charities Bureau or the IRS could be lodged.  If things get to that point, it's likely the relationship is highly adversarial, and each party would have brought in a lawyer. 

Now, I like lawyers.  Being one, I see their value, and I never hesitate to recommend when I think a party needs to consult one.  After all, it's how I make my living.

That said, if a library and their Friends are experiencing "Friends Drift" of the type discussed above, and its looking like things will get ugly, I recommend after initially working with their lawyers, the two groups consider using a mediator, not two adversarial lawyers, to help sort things out.

Now, when I say "mediator," I don't mean just any nice, neutral person who is willing to listen to both parties and help out. I mean a trained professional who knows the law and the obligations faced by both sides (likely a lawyer with not-for-profit experience), who can help them assess their mutual goals, and get their relationship on the right track. 

In some cases, the mediation could be a respectful, productive "airing of the grievances" used to diagnose the problems and craft a new (or a first) Cooperation Agreement.  In simpler cases, it could mean merely solidifying the functions of the groups' committees or developing some healthy new policies and procedures.

How does a mediation get set up?

A mediation is always conducted per a written "Mediation Agreement" that sets out the obligations of the mediator and the parties (a big one being confidentiality of the proceedings, another being the neutrality of the mediator and the willingness of the parties to proceed "in a spirit of mutual problem-solving").  The Mediation Agreement should also establish clear goals for the process (such as "…in furtherance of the mission of both parties, a session to discover and confirm shared procedures for the planned payment of certain library expenses") and defined results ("…the final product shall be a new/revised Cooperation Agreement to meet the needs of the parties for the next five years.").

A county's local bar association usually maintains a list of trained mediators.  That said, for an exercise like this, not only mediation experience knowledge of libraries and not-for-profits is essential.  The price tag for such a session could be anywhere from $1000-$50000 (with costs shared equally by the parties), but when compared with the costs for one party to hire a lawyer to go on the offensive, and the other to play defense - with nothing created but bad feelings and complaints in the end - as an investment, it may be worthwhile. 

This is especially true since--unless something truly nefarious[9] is suspected - "Friends Drift" is generally the result of good people caught up in the complicated web of not-for-profit operations, and not knowing quite what they can and should do.  But good intentions don't automatically translate into knowing how to run a compliant not-for-profit.  And when people try to wing it, trouble can start.

This is why the library-Friends relationship[10] can be fraught with fiscal drama, and "Drift," even when all good people are involved. 

The member's questions show how this drama - and Drift - can take up a lot of staff and volunteer energy, and cause a lot of stress.  Working to maintain good relations, and perhaps using a mediator when relations are strained, can be the best way to harness that energy for the library and its Friends…and thus, for the entire community.

Thank you for a difficult question on an under-discussed topic.



[1] Meaning: donations to the group are tax-deductible, while operations are limited to its not-for-profit purpose.

[2] The library's pesky lawyer insisted on this, since the library is involved in the event.

[3] I know many taxpayers don't really care about the "Friends/Library distinction," but it never hurts to try to keep them distinct.

[4] It doesn’t have to be called a "Collaboration Agreement," but every library and friends combo should have a written contract that addresses how they operate together.

[5] The sad fact is, board committees can meet regularly and get nothing done (in other words, be "unproductive").  Signs of an unproductive board/committee meeting are: 1) big ideas are discussed but nothing is acted upon, 2) there are few if any anticipated resolutions for action items, and 3) a lack of clear objectives set at one meeting for action by the next meeting.

[6] I imagine there are tiny exceptions to this but in such a case, there would be other requirements for fiscal transparency.

[7] I am a lawyer, not a library budget specialist.  This is a good topic to visit with your library system…they are there for you on all things tax levy and budget!

[8] Yes, I have that song stuck in my head now.

[9] By "nefarious" I mean suspected embezzlement, conflicts of interest, fiduciary neglect, or other issues that aren't just disconnects, but possible wrongdoing by a Friends board.  If those are suspected, a Library should work with their lawyer on next steps.

[10] Libraries, you're not alone.  This is a problem in religious organizations, social clubs, and other volunteer-driven organizations…although the people in library disputes might be better at trivia games and have larger vocabularies.

Tags: 501c3, Friends of the Library, Management

Topic: Library Files - 1/24/2020
What recourse may a library board take, if a former director removes all library files from a libr...
Posted: Friday, January 24, 2020 Permalink

MEMBER QUESTION

What recourse may a library board take, if a former director removes all library files from a library owned computer that relate to the running of the public library?

WNYLRC ATTORNEY'S RESPONSE

Every employer struggles with this issue: give employees enough access to electronic information to do their jobs, but protect that information from accidental disclosure, file corruption, and theft.

Solid practices like routine security updates, back-ups, password re-sets, and employee training can help a library avoid the worst IT disasters.  But what if someone in a position of trust simply abuses their access?  What if a scenario like the member's question should arise?

There is a process to address this type of scenario.  In order to ease an adrenalized mind,[1] it is presented below in grid form.

Upon suspicion that files have been removed or inappropriately removed by a former library employee, follow these steps to assess what recourse a board might have:

Action

Why you do this

Results

1.  Upon suspicion that files have been removed, if possible, do not take further steps alone.

Create an "Initial Response Team" of at least two people to do the next four steps, and designate one of them as the note-taker and document-keeper.

If your library's computer system is supplied or supported by a cooperative library system, one of these people should be from the system.[2]

Organizing a time-line and take photos or screenshots of information showing the potential problem.

The facts you assemble and first steps you take may have far-reaching consequences for your library's response and recovery, as well as for the potential wrong doer.

At this stage, however, you'll just be documenting what appears to be missing.  No deep-dive investigation.   It should only take an hour or two.[3]

Initial Response Team formed and responsibilities of team members made clear.

Note-taker assembling information.

2.  Without letting it take more than an hour (or two) and without making any changes to your system, assess and create an informal list of what appears to be missing (file types, specific types of information, locations), when this was noticed, and what the first signs of the concern were.  This will be your "Initial Inventory."

You need to have a foundation for your next steps, so you're creating a quick description of the possible situation.

An Initial Inventory you will use in the next few steps.

Note: The "Initial Inventory" is not an attempt to assess what happened, just to list what might be missing, and a few initial details.

 

3.  Look over the Initial Inventory.  Could any of the missing files contain personal/private information, such as: name, address, date of birth, ssn, library card number, credit card information, contact information, banking information, health-related information, computer use, passwords, or circulation records?

If the answer is "yes," add the phrase "…possibly includes loss or compromise of private information and/or library patron records" to the Initial Inventory.

This part of the Initial Inventory will help those assessing the issue quickly appreciate the possible privacy and confidentiality  implications of the situation.

4.  Contact the library's insurance carrier, and alert them that you may have had a loss of data related to "unauthorized computer access that may involve a former employee."

If your Initial Inventory includes a "yes" to Step #3, also state: "The situation may have involve personal and confidential information."

If your initial contact is by phone, confirm the notice via a letter or e-mail.

Depending on your library's insurance type, you may be covered for this type of event.

Notifying your carrier and following up in writing will help the library determine if the carrier will provide coverage and/or assistance for the event.

Timely notice to the library's insurance carrier, enabling your carrier to let you know if you have coverage and if they can provide assistance in recovering from the event.

NOTE:  If the event is covered, some or all of the remaining steps could be impacted by the participation of the carrier.

5.  With the Initial Inventory complete and the carrier on notice, the board (or director, if the board has delegated the right amount of authority to them) must decide who is in charge of next steps: the full board, a board committee, the Director and a team, or any combination of people needed to assess the matter. 

This "Response Team" should have the power to appoint a qualified professional to assess the situation, to retain legal assistance if warranted, and to recommend a final course of action to the board.

In no event should a report to the board (or Executive Committee) extend the timeline for arranging a response beyond 3 business days.

Unauthorized computer access involving a former director (or any employee) is serious enough to warrant board involvement, whether or not personal and confidential information.

This is especially true since, in a worst-case scenario, the library may have to report a data breach, expend resources to re-create or retrieve the information, work with an insurance carrier to recover from the loss, consider if any aspects of the former employee's contract or severance apply (if there was either/or) and based on what is discovered, consider whether or not to file a report with law enforcement.

Clarity as to who is in charge, what level of authority they are working with, and who they will bring on to assist with the investigation and recovery.

6.  Alert the library's lawyer by sending them a copy of the Initial Inventory, and connect them to the Response Team, so they can assist at needed.

 

It will be the lawyer's responsibility to work with the Response Team and others to ensure the library is positioned to seek relief from the carrier or the former employee, to assess any relevant contracts (for instance, if the files were deleted from a cloud server), and to advise the board about filing a report with law enforcement, or pursuing civil remedies.

Attorney-client privileged input to help assess response options in the best interests of the library.

7.  The Response Team should retain a qualified IT/data security professional to assess and develop an "Incident Report" with a Final Inventory of what is confirmed as missing, a conclusion as to how it went missing, and if/how it can be recovered.

This should be done within 3 days of discovery and before there are any changes to the system.   Ideally, this work should only be performed after the library and the IT professional sign a written contract that is reviewed by the lawyer.

A contract with a qualified firm;

A certificate of insurance from the professional firm;

A written Incident Report from the firm.

8. Based on the value, sensitivity, and type of information in the Final Inventory, work with the IT professional and lawyer to assess any legal steps the library must take to recover or to give required notifications of data breach.

Depending on what went missing, the library could have concerns under any number of laws. 

The final recommendation should be a memo to the board, regarding any necessary steps (or confirming not are needed).

9.  Based on the complete Incident Report's assessment of what is  missing, how it went missing, and if/how it can be recovered, and any relevant details about the employee, develop a course of action.

For more on this aspect, see the rest of this RAQ.

Recourse.

What happens as part of number "9," is the actual answer to the member's question.  But until a library follows steps "1" through "8," it can't fully know its options under "9."

And what can happen as part of "9"?  The range of consequences for unauthorized computer access and/or data destruction is vast, running from criminal penalties to civil remedies.  And if considered with solutions for how a library can recover from the loss, there are further possibilities.

If I was on the board where a former director removed all the library files from a library owned-computer that relate to the running of the public library, at the end of the day, here's what I'd want get out of "The Files Are Gone" process:

  • Know if the files were simply removed, or if they were removed and accessed/disclosed beyond the library;
  • If they were disclosed beyond the library, what the library must do to address that (including special considerations if personal or confidential information was accessed);
  • If the files were only removed, know if they can easily be replaced, or if they were the library's only copy;
  • If they can't be easily replaced, how much it will cost to replace them, and any negative impacts we'll experience until we do;
  • How we have concluded the files were removed by the former employee, if they were an employee when they did it, and what the due process is for addressing that;
  • If (based on all the information gathered, and more that will be specific to the situation), the board should contact the police, or consider a civil claim against the former employee.

By demanding solid, well-documented and qualified answer to these questions (What happened?  how does it impact the library?  What can we do?) a board member is being a good fiduciary, and positioning the library to identify the best recourse.

Now let's say that, in the grand scheme of things, the "missing files" appear to be pretty minor (and do not involve private information).  Let's say that, for whatever reason, the outgoing employee deleted all the library's "standard operating procedures." Not the policies--those are on the library's website and backed up in numerous places - but all the details about (as the question says) "running the library:"  How to organize the courier manifest.  The templates for the volunteer letters and community meeting notices.  The budget template and calendar for strategic planning.  Their own emails on their library account.  Nothing private, no circulation or credit card information, but a body of work that represent hundreds of compensated hours…lost.

This may seem like the kind of loss that isn’t dire enough to warrant the steps I have outlined above, but it absolutely is.  First, only a professional can say when data is truly "lost" (especially emails).  And even if, at the end of the day, there is a board decision not to pursue any consequences (privately, civilly or criminally), such (in)action must be based on good information--not just the result of a decision not to investigate in the first place.

The budget for such response, if planned carefully, can be very modest (under $1500).[4]  Reaching out to a library's system and regional council to find the professional you need might help the library get those services at a reasonable price (and again, depending on the system-library service agreement, much more).

Why am I adamant about this follow-through, even for a "small" incident?  Because sometimes a "small" incident is only the tip of a much larger iceberg.  Unauthorized data destruction by a former employee could be a serious breach of their duty, the law--and even their oath of office.  But it might not be.  The right response, and the fair response, can only be formulated through careful documentation and analysis.

This is what positions the board to know what recourse it can take, when presented with such a serious situation.

Thank you for trusting "Ask the Lawyer" with this sensitive question.

 



[1] If you are reading this while working on this type of issue, take a deep breath.  You've got this.

[2] There are too many types of IT supply/support arrangements out there for me to be more precise than this.  Some systems are essentially the IT department for their member libraries. Others are not.  This aspect will be governed by the System's member contract…but generally, a good place to start is on the phone!

[3] In keeping with the question, this chart addresses what to do if the person involved is former employee.  If the person is a current employee, the Response Team should include someone qualified to assess an appropriate response that ensures 1) due process for the employee; 2) security for the investigation; and 3) stability for ongoing operations of the library.

[4] Is this a low-ball figure?  Could it be much bigger?  Yes. But if it gets much bigger, that should be because it's actually a big problem that needs to be solved.

Tags: Data, Ethics, Management, Security Breach

Topic: CONTU Guidelines - 1/16/2020
We were discussing the Rule of 5 of copyright laws and wondered if it was limited by a single loca...
Posted: Thursday, January 16, 2020 Permalink

MEMBER QUESTION

We were discussing the Rule of 5 of copyright laws and wondered if it was limited by a single location or an institution. For example, if a public library has multiple branches can one branch request 5 articles from a single year from a journal and then another branch also requests articles from that same journal and year? Or did the first branch already use the maximum number of copies?

What about universities or hospital systems with multiple campuses and libraries? Thank you!

WNYLRC ATTORNEY'S RESPONSE

Libraryworld: a place where people gather to discuss information, and the best ways to share it with their community.  A place where people are just as likely to discuss the "Rule of Five" as the "Rule of Three."[1]  A place where routine conversation tackles everything from new database technology, to guidelines from the now-obscure "National Commission on New Technological Uses of Copyrighted Works" (CONTU).

But since not everyone in Libraryworld knows about "The Rule of Five," let's give some background.

The "Rule of Five" pertains to guidelines for applying a very small section of 17. U.S.C 108, the law giving libraries and archives special exemptions from copyright infringement.

That's right, Section 108 of the Copyright Act sets out important exemptions from infringement for libraries and archives who are open to the public.  But since the copyright law giveth and the copyright law taketh away, this "very small section" of the law, sub-section (g)(2), cancels those exemptions if a library or archives using them:

engages in the systematic reproduction or distribution of single or multiple copies…of material described in subsection (d)…. [emphasis added]

"Sub-section (d)" creates:

[The right to make and distribute] a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue…[emphasis added][2]

Aha, the right to make copies of "articles" and "contributions to collections!”  Yes, 108 sub-section (d) lets you make those…either for patrons at your own library, patrons at another library, or a requesting institution.  That's a very big, and very important exception to infringement.  It is one of the cornerstones of inter-library loan collaboration. 

But how does (g)(2) limit this important right?  By prohibiting "systematic reproduction or distribution" of the content.  And what does "systematic reproduction or distribution" mean?

The law doesn't say.  And since Section 108 was adopted in 1976,[3] it still hasn't said.

That's where "CONTU" stepped in.[4]

Convened in 1977, CONTU was the "National Commission on New Technological Uses of Copyrighted Works."  In 1978, it issued "Guidelines" that attempted to provide clarity about the meaning of "systematic reproduction or distribution."

This is what they came up with:

[F]illed requests of a library or archives (a “requesting entity”) within any calendar year for a total of six or more copies of an article or articles published in such periodical within five years prior to the date of the request.

This limitation is called the "Rule of Five," since the requesting entity is limited to five copies of content less than five years old, from the same source. [5]

CONTU tried to give libraries a precise mathematical formula and documentation system for abiding within the protections of 108.  While such a precise formula can be useful, I find it more helpful to think of the "Rule of Five" in the context of another part of Section 108 (g)(2):

That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.

In other words: libraries shouldn't use 108 as a replacement for budgeting to purchase a critical magazine or journal needed at a specific location.  They shouldn't collude between institutions to strategically subscribe and then share journals to the detriment of the publisher.  BUT at the same time, when a spontaneous need arises within your area of service, and you have that magazine or journal, don't hesitate to use your network to provide a 108-sanctioned copy.   But once the same place calls you five times in a year about the same source, say "Okay…time for you to get your own subscription."

Although I did not find it in the CONTU/108 commentary, I believe this approach reveals why CONTU's limit on copies is calculated based on the requests of the "requesting entity," and not fulfillments by the lending source.  Just think of it this way: a library or archives should not hesitate to use 108 to fulfill its mission information access.  However, it should take equally great care to show it isn't using 108 to help another library, or a patron, avoid a subscription fee.  By limiting copies from a single source given to another entity to five, CONTU tried to do just that.

Okay, there's some 10,000-foot background on the "Rule of Five."  Now let's focus on the member's two questions:

1. [I]f a public library has multiple branches; can one branch request 5 articles from a single year from a journal and then another branch also requests articles from that same journal and year? Or did the first branch already use the maximum number of copies?

2. What about universities or hospital systems with multiple campuses and libraries?

Let's take a close look at these questions.  In both scenarios, the requested articles are not going to a separate entity (or as 108 and the CONTU guidelines call it, a "requesting entity); rather, the copies are going to branches of the same entity: a branch of a library, a part of a university campus, or a part of a hospital entity.

Because the copies are going to the same entity, as I see it--and insofar as actual authorities like congressional commentary, the Copyright Office, and the courts can guide me--the CONTU Guidelines do not apply to the member's scenarios.[6]  Rather, the limit of a single institution's ability to make copies for itself is defined by the (g)(2)'s more thematic bar on activities that "substitute for a subscription to or purchase of such a work," and of course, the rules of fair use.

How does this play out?  Applying our 108/CONTU background: if a hospital whose library is open to other hospitals[7] has five library suites in different buildings, and wants to put a copy in each suite, it should not apply the "Rule of Five." In fact, this type of example (except they used branch libraries) is cited by the Copyright Office's guidance as exactly not the type of activity 108 was intended to protect![8]  Rather, the hospital would do a "fair use" analysis, or use another part of 108, to make the copies it needs.[9]  Or, if there is no other way, would not make them at all.

Now, with all that said, it is important to note that the entity can make 108/CONTU copies for other "requesting entities" (users, other libraries)…so long as the other 108 criteria applies.  For instance, 108 allows me, and even up to 10 other people (or 20, or 30) to visit your library and make a copy of an article, so long as we are not part of a discernable, coordinated "scheme" like a faculty member sending all their students in to copy the same content.  Because of this, 108 is a powerful tool for information access.  And it's been that way since 1976.

Now, let's stop playing around in the 1970's, and discuss some modern features of this type of "multi-branch" dilemma.

The fact of the matter is, unless the library/university/hospital is purchasing physical copies, at this point in 2020, what might be more relevant than CONTU's "Rule of Five" is the terms of the license from the subscription service the library gains access to the copies through.  Remember, as a general rule, exemptions to copyright infringement do not trump violations of valid negotiated contract terms.  So, if a library gains access to the content through a license that limits the number of copies, it might be that the specific "Terms and Conditions"--not the CONTU Guidelines or basic copyright law--that apply.

This is why careful review of all licenses held by libraries grows more critical, year after year.  It is also why whenever possible, I advise that every license for content should have a clause expressly stating that the terms of the license do not limit the library's rights under Copyright Law Section 107, 108, and 110, and the ADA.

So, where does that leave us on the "Rule of Five?"

There's a brassy phrase people can use to reply when asked "How are you?"

"Five by five," they might say, taking a verbal saunter through (depending on which slang dictionary you use) radio talk, surfer talk, trucker talk, or the characters in a sci-fi/pop culture adventure.

What's "five by five" mean? No one really seems to know.[10]

"Five by five," and "the Rule of Five," have that in common.  Times have changed; has their meaning?

The National Commission on New Technological Uses of Copyrighted Works ("CONTU") issued its guidelines in 1978.  The Commission has not re-convened since then; in fact, in 1992, the section of the law that required periodic assessment of 108's impact on libraries, publishers, and content users was written out of the law.[11]

So here we are, drifting along, applying guidelines from 1978.  Is that "five by five?"  I don't think so.

But I'm glad Libraryworld is keeping the discussion going.



[1] The rule that celebrities die in threes, which when you think about it, is how we all die (if count long enough, and stop counting soon enough).

[2] There are of course some other criteria: there must be no knowledge of a commercial use, and the copy must become the property of the requester.

[3] Act Oct. 19, 1976, P. L. 94-553, Title I, § 101, 90 Stat 2546.

[4] Or, as some have said, stepped in it.

[5] NOTE: this guideline only applies to content within its first five years after publication.

 

[6] While there is some commentary about CONTU in copyright jurisprudence, there is no case law on applying these guidelines, and in any event, they do not have the force of law.

[7] NOTE: being open to outside researchers or patrons is required to even qualify for an exemption under 108.

[8] See Circular 21, page 14, paragraph 3.  When you're done wading this answer, "Circular 21," is that place to further explore the nooks and crannies of this issue.

[9] The very clear case of hospitals using fair use to routinely copy medical journals, Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74, 487 F.2d 1345, 1973 U.S. Ct. Cl, was determined before 108 was adopted.  Although the medical facilities won that one, I would not advise that be done in this day and age.

[10] My money is on that it mutated from telecommunications.

[11] A Congressional Act of June 26, 1992, deleted former subsection (i) of 17 U.S.C. 108, which read: “Five years from the effective date of this Act, and at five-year intervals thereafter, the Register of Copyrights, after consulting with representatives of authors, book and periodical publishers, and other owners of copyrighted materials, and with representatives of library users and librarians, shall submit to the Congress a report setting forth the extent to which this section has achieved the intended statutory balancing of the rights of creators, and the needs of users. The report should also describe any problems that may have arisen, and present legislative or other recommendations, if warranted.”

Tags: Copyright, CONTU, Section 108

Topic: Music Accompaniment - 1/16/2020
Can a music accompaniment part be recorded ahead of time for a performance as long as the school o...
Posted: Thursday, January 16, 2020 Permalink

MEMBER QUESTION

Can a music accompaniment part be recorded ahead of time for a performance as long as the school or library has a copy of the sheet music? Can a few modifications be added to the accompaniment as long as the heart of the work is preserved? Can this recording be shared among schools and libraries as long as each organization has a copy of the sheet music with performance rights?

WNYLRC ATTORNEY'S RESPONSE

This question came in from a school system, and it triggered a lot of memories for me.

My junior high school music teacher was a very nice man.  From deep within mid-1980's Central New York, he tried to cobble together an orchestra from an array of students whose skills and practice habits ranged from "Julliard-bound," to "who is torturing that cat in the third violin chair?"

Back in 1986 (when I was 13), I saw this guy as "old."  Because of the way he tirelessly started the music over (and over) until the brass section[1] entered at the right bar of "Star Wars", I also saw him as a font of endless tolerance.

Now that I am older, my memory portrays my former teacher as a pretty young guy (I think he was in his early 30's).  And by now I have worked with enough educators to know that his tireless tolerance of our incompetence was passion.

So, this question has stirred a feeling of nostalgic gratitude.  Because of that,[2] I want to give this member an answer that is really solid, helpful, and clear.  But as they say in the construction biz when people ask for a job that is quick, quality, and cheap: I can give you a combination of any two, but not all three.

Here is the part of the answer that is solid and clear: Making a recording of a copyright-protected composition, unless the recorder has the permission of the copyright owner, or the recording falls under an exception, is copyright infringement…even for educational purposes.

Is there helpful and solid authority on that?  Yes. Circular 21, the long-standing guidance on the relevant copyright laws,[3] makes it clear that for educators, only the following recording of musical compositions is allowed under "fair use":

A single copy of recordings of performances by students may be made for valuation or rehearsal purposes and may be retained by the educational institution or individual teacher.

[AND]

A single copy of a sound recording (such as a tape, disc, or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)

So, at first blush, the answer to the member's first question (and thus, all the following questions) is: NO.

Now, the core guidance in Circular 21 is OLD.[4]  It pre-dates streaming, it pre-dates file-sharing, and depending on what start date you give the web, it pre-dates the Internet.  But insofar as case law and legal commentary is concerned, it abides.[5]

So, while I have to answer a resounding NO to the question just as it is asked, I can offer a few helpful and clear solutions.

First, it never hurts to ask.  Depending on the copyright holder, you may be able to get a "limited license" for the very thing you want to do.  Some owners might even be charmed.  Others, of course, will just refer you to their manager.  You never know until you try.  Just make sure you get it in writing.

Second, while the Circular 21 guidance quoted above gives clear examples of what fair use permits, on page 7 of Circular 21, just before listing those guidelines, it states "There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use."

So, if a version has been recorded for performance as part of a clever mash-up, for purposes of commentary and criticism, or another use that might meet fair uses' four factors, this approach is worth considering.  Sadly, since that is a case-by-case analysis, I can't say what precisely when that is allowed!  An education institution should perform such an analysis using its fair use form.[6]

Third--and I can't believe I am suggesting this--it may be that a combination of different licensing can arrange this precise permission for you.

We'll call this the "Two-Step Shuffle" solution.  It is meant to be helpful, and it is solid, but I am concerned it might not be too clear.  But let's give it a go.

NOTE: to use the "Two-Step Shuffle" solution, your institution MUST have a public performance license from a licensor like ASCAP or BMI.  So, if your school doesn't have one, just stop reading, right now.  But if you do…

Step one: see if the song you want to record is licensed for "covers" on a publicly accessible "host site" like YouTube.[7]  If the host site[8] has the license, you can record the accompaniment as a "cover," and put it on the host site.

Step two:  With your "cover" recorded, you can then play it from YouTube at any premises that has a license for public performance (this is why you need that license from ASACP or BMI…which is also what covers playing music at a high school dance, music over the loudspeaker during halftime, etc.).

Of course, this being an Internet solution, the "Two-Step Shuffle" solution could disappear at any moment!  But this being the Internet, something else will take its place.

Now, in suggesting a school to make use of a commercial video hosting service (like YouTube), I would like to take a moment to discuss those two important legal concepts: "Coulda," and "Shoulda."

Just because a school can upload content to a site like YouTube, and get a license for a cover, doesn't mean it should.  After all, when using a service like YouTube, an institution agrees with these terms:

By providing Content to the Service, you grant to YouTube a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use that Content (including to reproduce, distribute, prepare derivative works, display and perform it) in connection with the Service and YouTube’s (and its successors' and Affiliates') business, including for the purpose of promoting and redistributing part or all of the Service.

In other words, you're feeding the beast; you're commodifying the content you've chosen to share.  If it's student work, there are privacy and further intellectual property concerns (students own their copyrights, after all).  None of these are things an educator should take lightly.

That said, if approached with the right balance of attention to legal details and commitment to artistic excellence, the "Two-Step Shuffle" can also show future artists and performers how to respect copyright law and engage in self-promotion (which seems to be a critical skill  nowadays).  So "woulda, coulda, shoulda?"  If you undertake the "Two-Step Shuffle" solution, do it with an "ethics buddy" (preferably an administrator who has your back).

And of course, a "Two-Step Shuffle" solution can only be used if you can answer these questions in the affirmative, and you preserve the documents from which you derive your answers:

  1. Do you have express permission from the host site to make and post the recording on the host site?
    1. If "yes," keep a copy of that permission.
  2. Do you have express permission to perform the recording at the premises?[9]
    1. If "yes", keep a copy of that permission, too.

That second part pertains to any other school or place that wants to publicly use your recording, as well.

So, there you have it.  Was this solid and/or helpful and/or clear?  In keeping with my Junior High memories, I give myself a "B."

I do wish this answer was a little less like trying to get the brass to come in at the right bar of "Star Wars," but copyright, fair use, and licensing take time and attention to detail to get right.

That said, with enough passion to fuel the effort, I am confident you'll hit the right note.



[1] That was me.  I played trumpet.  And had braces. NOT a good combo.

[2] And because I have high standards.

[3] Circular 21, "Reproduction of Copyrighted Works by Educators and Librarians," which has been in use since my days playing trumpet, and arguably, could use some updating.  You can find it here: https://www.copyright.gov/circs/circ21.pdf

[4] How old? It was first contained in a joint letter written by representatives of the Music Publishers’ Association of the United States, Inc., the National Music Publishers’ Association, Inc., the Music Teachers National Association, the Music Educators National Conference, the National Association of Schools of Music, and the "Ad Hoc Committee on Copyright Law Revision" on April 30, 1976.  Of course, if I tell my younger sister that something from 1976 is "old," I'll catch hell, but fortunately, she teaches religious education, not music.

[5] A scenario such as the one depicted by the member doesn't even get any slack from educators' other great copyright reprieve: section 110.  While 110 does allow a variety of exceptions for musical performances, it doesn't extend its tolerance to recording.

[6] Something no not-for-profit educational institution should be without, since it can help your institution limit damages under Section 504 of the Copyright Act.

[7] As of January 13, 2020, YouTube maintains a list of licensed songs you can record and upload at https://www.youtube.com/music_policies?ar=1578920053089&nv=1.  And, also as of this January 13, 2020, YouTube (unlike Netflix or HULU) enables businesses to use their services (rather than restricting them for "personal" and "home" use).

[8] Insofar as I know, only YouTube does this.  But I need to get out more, and of course, this type of thing evolves quickly in cyberspace.

[9] This is different than permission to perform the musical composition!

Tags: Copyright, Fair Use, Music, Circular 21, Online Programming

Topic: Tax Assessment Changes - 1/3/2020
We are an association Library that uses a school ballot to levy funding. We have received a bill f...
Posted: Friday, January 3, 2020 Permalink

MEMBER QUESTION

We are an association Library that uses a school ballot to levy funding. We have received a bill from the school for 2 years now that a landowner has had their taxes re-accessed back 3 years and now we owe the school money. Last year we paid it because it seemed like bad luck and there weas court documents saying the back money was owed. It seems to becoming a trend as another large land owner/company has done the same and now we owe again this year, and it's increasing. How do we continue to handle this trend and do we owe them?

WNYLRC ATTORNEY'S RESPONSE

Imagine walking through a metal maze, wearing magnet shoes, trying to solve a Rubik's Cube coated in honey.

Visualizing that? Metal floor.  Magnet shoes.  Lots of honey.

Okay.

This…is an even stickier problem.

Why is it sticky?  Because for any library but a school district library, there is no definitive answer.

To show you why, let me extract you from the metal maze and bring you into the weeds of New York's Real Property Tax Law ("RPTL") Section 726.[1]

Specifically, let's look at Section 726, sub-section 1(c), which controls a school district's refund of taxes paid by those who have successfully fought to reduce their property assessment.

Since 2014, this portion of the RPTL has given tax-levying school districts the following authority:

"A school district which levies taxes on behalf of a school district public library [that must be refunded to a taxpayer] may charge back to such public library the portion of such refund attributable to library purposes."

Prior to 2014, school districts had no such express authority.  The law was silent on this topic. This lead the New York State Comptroller to write three decisive opinions (in 1975, 1979, and 1995) stating that school districts who levied funds for public libraries did NOT have that authority.[2]  In other words, if a refund was owed: the district was stuck.

So stalwart was the Comptroller's stance on this ("Comptroller" just sounds like someone in charge, right?) that in 2007, it was cited by the NY Commissioner of Education when they decided that a school district's attempt to "charge back" an association library's portion of a refund--by withholding an equivalent amount from the following year's levy--was forbidden.[3]

So, there we were until 2014: a Comptroller-confirmed approached that was a great deal for libraries.

But not such a great deal for New York's school districts, right? When a refund came a-knocking, they were left holding the bag.

By 2014, the complaints had gotten so loud, the Assembly added the above-quoted section to RPTL 726, while commenting:

Existing law is silent on whether a school district may charge back court ordered refunds. Opinions of the State Comptroller (95-15, 79-103, 75-1210) have consistently, held that school districts are lacking in the necessary statutory authority. This legislation corrects an apparent oversight in Real Property Tax Low [sic]. It was never the intent of the Legislature to prohibit school districts %% inch[sic] levy taxes on behalf of a school district public library from apportioning the library portion of certiorata and small claims assessment review refunds to such libraries. The inequity of requiring a school district to refund a library's share of tax certiorari debt from the school district's own resources is clear.[4]

From a certain point of view, legislation to correct this "inequity" makes a lot of sense.  If you're running a school district, you're probably already struggling to get new orchestra instruments.  Now out of the blue you have to issue a tax refund to the local over-assessed big box store?  The last thing you want to do is also eat the portion owed by the local library.  Good thing the legislature fixed that, right?

But a sharp reader has probably noticed: in trying to clear up one problem, the legislature created another.

What does that language in 726 (c)1 say, exactly?

"A school district which levies taxes on behalf of a school district public library [that must be refunded to a taxpayer] may charge back to such public library the portion of such refund attributable to library purposes."

What's the problem here?  The black letter law of the new section of 726(c)1 only names school district public libraries.  Association libraries, special district, municipal libraries--these are all left out. And even though there are sections of the Education Law where "all types of libraries [are] treated equally,"[5]  and school districts can levy taxes for any kind of library,[6] without clear authority to indicate anything different, I would not be comfortable stating that the new section of 726(c)(1) has positioned school districts to charge back any taxes from anything other than a school district public library.  The language is just too specific.

So, when a non-school district public library gets a charge-back bill from a school district,[7] what's a public library do? 

First, as they say in the intergalactic travel biz: DON'T PANIC.  You'll figure something out.

Second: Gather your paperwork (the charge back bill, the court papers related to the Article 7 assessment challenge if you got them, and the most recent correspondence with the district).

Third: Assemble your team. Who is "your team"?  In New York, it should (at least) be: your Treasurer, your board chair (or other designated member/s), a rep from your system,[8] and a lawyer.[9]

Fourth: After an initial meeting, someone from your team might want chat with the assessor, and maintain some routine contact--you'll want some intel on how much more of this could happen. 

Fifth:  After gathering all the intel you can, your team should formulate a recommended "Response," to be authorized by the library's board. 

What will the Response authorized by the board provide?  I can't say.  Looking at the diversity of library-related legal cases, it is clear that New York's libraries are very diverse in their approach to taxes and risk.  Some, after assessing the validity of the back charge (and the resources needed to fight it), might just eat the cost.  Others might ask the Comptroller for an opinion about the 2014 change to the law, holding off on paying up until they get a reply.  And still others might attack the validity of the adjustment, or band together with other entities to formulate a broader strategy.

What is important is that whatever is done is based on good information, and a well-informed decision of the board.  Whatever strategy your library adopts, it should consider the relationship with the school district as a whole.  Remember, they didn't cause this mess.

Thank you for submitting this sticky question.  I wish my answer was simpler, but right now, the law does not allow for an easy response. 

Someday we'll take off the magnets and put down the honey.



[1] Yes, you're still holding the Rubik's Cube.  Don't worry, there are no bees in these weeds to be attracted by the honey.

[2] Opinions number 95-15, 79-103, and 75-1210.

[3] Decision No. 15,662.

[4] New York State Assembly Bill Search and Legislative Information for Bill Number A05310 (2014).

[5] Section 259, for instance, (which as commented by the Education Commissioner in the Croton Free Library decision), "provides that moneys received by a municipality or school district from taxes or other public sources are to be paid over to the treasurers" of all kinds of libraries just the same.

[6] A function of convention, more so than law; see the "Ask the Lawyer" on school tax levies: https://www.wnylrc.org/ask-the-lawyer/filter/52

[7] Do not confuse a charge-back bill from a school district with a charge-back bill from a municipality or other entity!  This commentary only pertains to school districts…in the year 2020…until there is some authority from the Comptroller, the courts, or the legislature to sort this mishegas out.

[8] Depending on what's happening in your region, this might not be their first charge-back rodeo.

[9] A lawyer is critical, because there is more than one kind of tax adjustment proceeding, and RPTL 726 only applies to adjustments under Article 7.  The lawyer's job will be to make sure the adjustment and charge back demand is legit (or not), and to assess the risks of paying (or not).

Tags: Taxes, Association Libraries, School Ballots

Topic: Yearbook Photo Copyright - 1/2/2020
We are putting together a commemorative calendar as a fundraiser to celebrate the library's 90...
Posted: Thursday, January 2, 2020 Permalink

MEMBER QUESTION

We are putting together a commemorative calendar as a fundraiser to celebrate the library's 90th year. We're using old photographs that the library has and also photographs from old yearbooks. Is there an issue with copyright infringement in doing this?

WNYLRC ATTORNEY'S RESPONSE

Before sitting down to write a "one size fits all" answer, I gave the member a call to discuss this project.

What happened on the call? I can't tell you; it's confidential.  BUT, I can say that to give any advice, I had to ask the following questions:

  • What years are the yearbooks from?
  • Are you using portrait shots, or candid shots that might have been taken by teachers and/or students at the school?
  • Are you selling the commemorative calendar?  How do people obtain a copy?
  • Are you including additional information, commentary, and analysis of the photos in the calendar?
  • Is there any sensitive content?

These questions were asked in order to 1) assess the if the photographs were protected by copyright; 2) assess the ability of the library to make a "fair use" defense for using them; and 3) probe for any legal sensitivities possibly related to the content.[1]

This analysis was done because yearbook projects bring up issues of not only copyright risk, but privacy and social issues.  For this reason (and because old hairstyles are eternally amusing) yearbook projects are hot right now: the focus of many digitization initiatives, and the cause of many numerous scandals-in-retrospect.

Yearbooks are also getting a good showing in copyright case law these days.  The most recent[2] is Dlugolecki v. Poppel,[3] a lawsuit over two yearbook photos of actress-turned-duchess Meghan Markle (a headshot and a group photo), taken when the future royal was in high school. 

Dlugolecki shows the "worst-case scenario" answer to the member's question.  In this case, when "Good Morning America" and other ABC shows used his photos in their coverage of Ms. Markle's rise to royalty, professional photographer John Dlugolecki sued ABC (and others). 

His claim?  That by re-using the printed yearbook photos he shot in the '90's, ABC (and others) infringed his copyright via broadcast in 2017. 

The case was brought in California and heard before the Honorable George H. Wu.  It settled[4] on December 11, 2019, but not before ABC made--and lost--a preliminary "fair use" defense.  Judge Wu, applying the fair use "four factor" analysis set by Section 107 of the Copyright Act,[5] found that even though the photos hadn't been registered by photographer Dlugolecki prior to their use by ABC, the undisputed facts of the case (his photos were clearly used in the broadcasts) could warrant a finding of infringement.

Now, a commemorative calendar by a not-for-profit library is not the "Good Morning America" show.  But as we can see in Dlugolecki, yearbook photos can get protection just like any other copyrighted medium, and re-use might not be considered fair use.   Which means that under the right circumstances (including if the copyright holder is motivated enough), a problem could arise for unauthorized use of yearbook content.

So, the answer to the member's question is: yes, there can be an issue.  Because of that, careful planning, and if possible, working with a copyright attorney, is the way to approach use and re-publication of photographs from a yearbook.



[1] I asked about “sensitive content” not to suggest it be expurgated, but to offer legal guidance on presenting it properly (although I doubt “sensitive content” would be selected for a commemorative calendar).

[2] I am writing this in January 2, 2020; my first work of the New Year!

[3] Decided in United States District Court for the Central District of California on August 22, 2019 (CV 18-3905-GW)(GJSx).

[4] Cases like this often settle.  While this is very frustrating for attorneys conducting research (who like to read findings and judicial opinions), it is no doubt lucrative for the plaintiffs, and an act of risk management for the defendants.

[5] https://www.copyright.gov/fair-use/more-info.html

 

Tags: Copyright, Yearbooks

Year

0

2016 4

2017 24

2018 29

2019 42

2020 68

Topics

501c3 2

Academic Libraries 2

Accessibility 4

ADA 8

Archives 1

Association Libraries 2

Behavioral misconduct 1

Board of Trustees 4

Branding and Trademarks 1

Broadcasting 1

Budget 1

Cease and desist 1

Children in the Library 1

Circular 21 1

Contact tracing 1

CONTU 2

copyleft 1

Copyright 72

COVID-19 51

CPLR 4509 3

Crafting 1

Criminal Activity 1

Data 2

Defamation 1

Derivative Works 3

Digital Access 9

Digital Exhibits 1

Digitization and Copyright 11

Disclaimers 3

Discrimination 1

Dissertations and Theses 1

DMCA 2

Donations 3

E-Books and Audiobooks 2

Ed Law 2-d 1

Education Law Section 225 1

Elections 2

Emergency Response 42

Employee Rights 8

Ethics 4

Executive Order 3

Fair Use 29

Fan Fiction 1

Fees and Fines 3

FERPA 5

First Amendment 1

First Sale Doctrine 3

Forgery and Fraud 1

Friends of the Library 2

Fundraising 1

Hiring Practices 1

Historic Markers 1

HRL 1

Identity Theft 1

IRS 1

Labor 3

Laws 20

Liability 1

LibGuides 1

Library Buildings 1

Library Card Policy 1

Library Cards 1

Library Programming and Events 9

Licensing 3

LLCs 1

Loaning programs 1

Local Organizations 1

Management 16

Meeting Room Policy 6

Memorandum of Understanding 1

Microfilm 1

Movies 5

Municipal Libraries 5

Music 12

Newspapers 3

Omeka 1

Online Programming 11

Open Meetings Law 1

Oral Histories 1

Overdrive 1

Ownership 1

Parodies 1

Personnel Records 1

Photocopies 15

Photographs 1

Policy 35

Preservation 2

Privacy 11

Property 3

PTO, Vacation, and Leave 1

Public Access 1

Public Domain 7

Public Health 1

Public Libraries 12

Public Officers Law 1

Public Records 2

Quarantine Leave 2

Reopening policies 8

Retention 3

Retirement 1

Ripping/burning 1

Safety 4

Salary 2

School Ballots 1

School Libraries 5

Section 108 2

Section 110 2

Section 1201 1

Security Breach 2

Sexual Harassment 2

SHIELD Act 2

Smoking or Vaping 2

Social Media 4

SORA 1

Story time 3

Streaming 13

SUNY 1

Swank Movie Licensing 3

Taxes 4

Teachers Pay Teachers 1

Telehealth 1

Template 3

Textbooks 3

Umbrella Licensing 2

VHS 4

Voting 1

W3W 1

WAI 1

Work From Home 1

Yearbooks 2

Zoom 2

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