Legal Issues in eContent Angela Moore Indiana State Library Intern July 9, 2013
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Transcript Legal Issues in eContent Angela Moore Indiana State Library Intern July 9, 2013
Legal Issues in eContent
Angela Moore
Indiana State Library Intern
July 9, 2013
Presenter Introduction
Rising 2nd year law student
Not a lawyer
Summer legal intern at ISL
Former librarian at Berne Public Library
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Disclaimer
This is legal information, not legal advice
I cannot apply the law to your specific situation
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Legal Issues in eContent: An Overview
Accessibility
First Sale Doctrine
Resale
Privacy Concerns
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Accessibility
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Accessibility
Governed by law
Rehabilitation Act of 1973
Americans with Disabilities Act of 1990
It’s also in line with the idea of libraries –
making information available to everyone
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Accessibility
Rehabilitation Act of 1973 (29 U.S.C. § 794)
“No otherwise qualified individual … shall, solely by
reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be
subjected to discrimination under any program or
activity receiving Federal financial assistance.”
Federal financial assistance includes LSTA
grants
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Accessibility
Americans with Disabilities Act of 1990
Title II (42 U.S.C. § 12132)
Title III (42 U.S.C. § 12182)
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“No qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be
denied the benefit of services, programs or activities of a
public entity, or be subjected to discrimination by any
such entity.”
Applies to state agencies and public libraries
“No individual shall be discriminated against on the basis
of disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or
accommodations of any place of public accommodation.”
Applies to private libraries and academic institutions.
Accessibility
Complaints: lack of accessibility
Arizona State University
Sacramento Public Library Authority
Free Library of Philadelphia
Primarily an issue of lending eReaders
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The devices and the content loaded on them
Accessibility
How to be compliant:
“‘Fully accessible’ with regard to e-book reading
devices means that a blind individual may access or
acquire the same information, engage in the same
transactions, and enjoy the same benefits and
services of the e-book reading device, as would a
non-disabled individual with substantially
equivalent ease of use.” (Philadelphia settlement)
Text-to-speech engine, and
Audio or tactile feedback on buttons/touch screen
http://en.wikipedia.org/wiki/Comparison_of_e-book_readers
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Accessibility: Arizona State University
Complaint
2009, settled 2010
Pilot Program
Complaint filed on behalf of blind ASU student
Student was not eligible for the pilot program
Kindle DX
Had a read-aloud feature, but required navigating text
menus to turn it on
11 http://chronicle.com/blogs/wiredcampus/arizona-state-u2-groups-for-the-blind-settle-lawsuit-over-kindle/20439
Accessibility: Arizona State University
Settlement
Arizona State agreed to “strive to use devices that
are accessible to the blind” if it decided to
incorporate eReaders in the classroom in the
following two years.
Available at:
www.ada.gov/arizona_state_university.htm
12 http://chronicle.com/blogs/wiredcampus/arizona-state-u2-groups-for-the-blind-settle-lawsuit-over-kindle/20439
Accessibility: Sacramento PL Authority
Complaint
2012
Nook
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Menus and controls accessible only through touch screen
(no audio or tactile feedback)
No text-to-speech engine
Accessibility: Sacramento PL Authority
Settlement
Purchase no additional inaccessible eReaders
Purchase and loan 18 accessible eReaders within 2
months of settlement agreement
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Loaded with same content, or substantially similar
content if already purchased content unavailable in
accessible version
No further purchases of inaccessible content
Cannot require proof of disability, attestation ok
Available at:
http://www.ada.gov/sacramento_ca_settle.htm
Accessibility: Free Library of Philadelphia
Complaint
2012
Nook Simple Touch
Pilot program for patrons 50+
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No text-to-speech
Touch screen with no audible or tactile feedback
In 5 of 54 library locations
Accessibility: Free Library of Philadelphia
Settlement
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Only purchase fully accessible eReaders
Within 2 months, purchase 10 accessible eReaders,
initially reserved for print-disabled patrons
Cannot require proof of disability, attestation ok
Stop loaning inaccessible eReaders within 4 years
Use best efforts to get accessibility clauses in new
vendor contracts
Available at: http://docs.justia.com/cases/federal/districtcourts/pennsylvania/paedce/2:2012cv02373/461996/14/1.html
Accessibility
Lessons learned in eReader lending
Accessible eReaders
Accessibility applies to:
Services, programs, activities
Pilot programs
Do not require proof of disability (e.g. doctor’s note)
Print-disabled is bigger than vision-impaired
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Text-to-speech capability
Access to menus with audio/tactile feedback
e.g. includes dyslexia
First Sale Doctrine
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First Sale Doctrine: 17 U.S.C. § 109(a)
Copyright law
The owner of a legal copy can sell or lend that
copy without the copyright holder’s permission
Enables:
Loans, including ILL
Patron donations
Used book sales and secondary markets
Additional agreements between buyer and seller
are still enforceable under contract law
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With physical objects, some associated issues can
be solved via secondary markets
First Sale Doctrine
Owner vs. Licensee
Copy & Delete
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First Sale Doctrine: Ownership
Owner vs. Licensee
Licenses offer access under restrictions
e.g. Can’t loan to reciprocal card holders
2010:Vernor v. Autodesk, Inc., 621 F.3d 1102
Vernor purchased physical copies of software, court
concluded he had licensed, not bought, so he could not
sell the software on ebay
Test depends only on the copyright holder’s actions, not
the purchaser’s
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Licensees do not get benefit of first sale doctrine
9th Circuit: persuasive, but not binding authority in Indiana
First Sale Doctrine: Licenses
Individual License
Amazon:
“Content Provider grants you a non-exclusive right to
view, use, and display such Kindle Content an unlimited
number of times, solely on the Kindle or a Reading
Application or as otherwise permitted as part of the
Service, solely on the number of Kindles or Supported
Devices specified in the Kindle Store, and solely for your
personal, non-commercial use. Kindle Content is
licensed, not sold, to you by the Content Provider.”
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http://www.amazon.com/gp/help/customer/display.html/re
f=hp_200699130_storeTOU1?nodeId=201014950 (emphasis
added)
First Sale Doctrine: Licenses
Individual License
Barnes & Noble:
“Barnes & Noble.com offers Users the ability to purchase
or download digital content, such as eBooks…. Barnes &
Noble.com grants you a limited, nonexclusive,
revocable license to access and make personal, noncommercial use of the Digital Content in accordance with
these Terms of Use.”
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http://www.barnesandnoble.com/include/terms_of_use.asp
(emphasis added)
First Sale Doctrine: Licenses
Library Licenses
OverDrive Consortium Access Agreement
“OverDrive grants the Consortium, Participating Library
and/or Authorized Patrons a non-assignable, nontransferable, limited license to use the Digital Content
provided by OverDrive’s suppliers for personal, noncommercial use.”
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http://www.overdrive.com/files/consortium-access-agreement.pdf
(emphasis added)
First Sale Doctrine: Licenses
Library Licenses
3M Cloud Library Service Benefits
“3M believes that your library system owns the content
that you purchase from us. This is why we allow you to
transfer the content that you purchase from us to a new
service provider.”
Available at:
http://www.library.arkansas.gov/libraryDivisions/Traveler/Docume
nts/AAIM20133M%20Cloud%20Library%20Service%20Benefits.pdf
(emphasis added)
But be cautious:
Random House repeatedly said libraries “own” ebooks, just
meant content can migrate across platforms
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http://blogs.publishersweekly.com/blogs/PWxyz/2012/10/23/ju
st-another-word/
First Sale Doctrine: Resale
Even if you own an ebook, can you resell it?
2013: Capitol Records v. ReDigi
Sale of used (legal & owned) digital music
Federal judge in NY ruled against “Copy and Delete”
The physical object is what you can sell under first sale
You can’t make unauthorized copies, so no copy and delete
Appeal likely
Me
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Buyer
Images from Microsoft Clip Art
First Sale Doctrine: Resale
ReDigi’s solution: files stored in their cloud
You aren’t selling a copy, you’re selling the original by
redirecting access
ReDigi plans to start used ebook marketplace this
summer
Still unresolved: do you actually own your mp3s?
Amazon has a patent for selling used ebooks, too
ReDigi
Buyer
Me
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Images from Microsoft Clip Art
First Sale Doctrine: Resale
Can digital files be sold under First Sale?
Yes, but:
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You have to be the owner
You can only sell the original physical copy
You can’t sell a copy (even if you delete the original)
You can sell the device with the original file (e.g. thumb
drive)
First Sale Doctrine: One Publisher’s OK
O’Reilly Media
“If you buy an O'Reilly ebook, when you are done
with it you may resell it, provided that you do not
retain any copies of the book after you sell it. This is
the same as the situation when you sell a used print
copy—when you sell the copy, you deliver it to the
buyer and no longer have a copy in your library.”
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http://shop.oreilly.com/category/customer-service/ebooks.do
IT publisher, books quickly made obsolete anyway
First Sale Doctrine: In a Nutshell
Great for libraries (at least for physical items)
Most eContent is sold as a license, so the First
Sale Doctrine does not apply
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Privacy Concerns
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Privacy Concerns
Content Providers
Third-parties (e.g. OverDrive, Amazon) may be
collecting data on your patrons
Devices
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What does your device keep track of?
Privacy Concerns
“[T]he American Library Association urges all
libraries to…[l]imit the degree to which
personally identifiable information is collected,
monitored, disclosed, and distributed.”
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ALA Resolution on the Retention of Library Usage Records
http://www.ala.org/offices/oif/statementspols/ifresolution
s/libraryusagerecords
Privacy Concerns
When Amazon lends a library kindle book, it
retains a user’s notes and other data
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Even after the loan ends
A perk?
Privacy Concerns
King County Library (WA)
NOTE FOR KINDLE READER DOWNLOADS:
You may receive renewal or purchase messages
from Amazon regarding your OverDrive download of
library eBooks to Kindle readers. These messages
are not from…your local library, and do not affect
the terms of your library download. [The library]
never solicits purchases, or charges any fees for the
use of digital material.
Available at: http://www.thedigitalshift.com/2011/12/ebooks/overdrive-amazonprivacy-disclaimer-pops-up-in-wisconsin-in-virginia-questions-about-catalog-disparities/
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Privacy Concerns
Wisconsin Public Library Consortium
Attention Kindle Book User:
By clicking “Accept to Continue” you consent to
being linked away from the library’s download
platform to a commercial service. This third party
service does not have the same policies used by
the library for your session privacy or use of your
user information. If you continue, you are advised
to consult the commercial website’s privacy policy
for additional information. Click “Accept to
Continue”
Available at: http://www.thedigitalshift.com/2011/12/ebooks/overdrive-amazonprivacy-disclaimer-pops-up-in-wisconsin-in-virginia-questions-about-catalog-disparities/
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Privacy Concerns
Overdrive Privacy Policy
“We may collect certain information about your interactions
with us and information related to you and your use of our
Services, including but not limited to, Personal Information,
your online activity, digital content selections, reviews and
ratings, as well as Internet Protocol addresses, device types,
unique device data, such as device identifiers, and
operating systems.
Personal Information remains anonymous unless you
explicitly identify yourself to us by creating and using an
account with OverDrive and/or otherwise consenting to the
sharing of information with us. Please be aware that some
of our Services cannot be offered unless you identify
yourself to us.”
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http://www.overdrive.com/privacy-policy/
Privacy Concerns
3M Cloud Library Service Benefits
“We know that privacy is important to most
patrons, which is why we do not require them
to provide any personal information to use the
3M Cloud Library. Patrons simply provide us
their library barcode number and PIN - a stark
contrast with some services that require users
to provide them with their names, contact
information, and even job titles.”
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Available at:
http://www.library.arkansas.gov/libraryDivisions/Traveler/Documents
/AAIM20133M%20Cloud%20Library%20Service%20Benefits.pdf
Privacy Concerns
Devices
Track searches
Monitor what/how you’re reading
Keep record of purchases
Share information (including with third parties)
Electronic Frontier Foundation eReader Privacy Chart
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https://www.eff.org/pages/reader-privacy-chart-2012
Privacy Concerns
Let library patrons know that third-party
websites are not covered by your privacy policy
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Just because the library doesn’t collect the data
doesn’t mean that nobody is
Legal Issues in eContent
Accessibility
First Sale Doctrine
Text-to-speech & feedback on buttons/touch screen
Won’t apply to eContent unless actually owned
Resale may be difficult/impossible without copying
Privacy
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When patrons use your eContent, someone is likely
collecting data on it
Consider notifying patrons
Resources
Ebooks on Fire: Controversies Surrounding Ebooks
in Libraries (December 2011)
IMLS Advisory: E-Book Reader Lending Programs
No link, do a search engine query to locate
Why We Miss the First Sale Doctrine in Digital
Libraries
http://www.infotoday.com/searcher/dec11/Hamaker.shtml
http://www.thedigitalshift.com/2013/03/copyright/why-wemiss-the-first-sale-doctrine-in-digital-libraries/
Rachel Ann Geist, “A ‘License to Read’: The Effect of
E-Books on Publishers, Libraries, and the First Sale
Doctrine,” 52 IDEA 1 (2012)
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http://law.unh.edu/ip-law-review/past-issues/volume-52number-1
Questions
For questions about this presentation, contact:
Angela Moore: [email protected]
At ISL until July 31st
For questions about how eContent issues
specifically affect your library, contact your
library’s attorney.
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