RAQs: Recently Asked Questions

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

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

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