Legal Issues in eContent Angela Moore Indiana State Library Intern July 9, 2013

Presenter Introduction  Rising 2 nd year law student  Not a lawyer  Summer legal intern at ISL  Former librarian at Berne Public Library 2

Disclaimer  This is legal information, not legal advice  I cannot apply the law to your specific situation 3

Legal Issues in eContent: An Overview  Accessibility  First Sale Doctrine  Resale  Privacy Concerns 4

Accessibility 5

 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 6

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 7

Accessibility  Americans with Disabilities Act of 1990  Title II (42 U.S.C. § 12132)  “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  Title III (42 U.S.C. § 12182)  “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. 8

Accessibility 9 Complaints: lack of accessibility  Arizona State University  Sacramento Public Library Authority  Free Library of Philadelphia  Primarily an issue of lending eReaders  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 

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

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:

Accessibility: Sacramento PL Authority Complaint  2012  Nook  Menus and controls accessible only through touch screen (no audio or tactile feedback)  No text-to-speech engine 13

Accessibility: Sacramento PL Authority Settlement  Purchase no additional inaccessible eReaders  Purchase and loan 18 accessible eReaders within 2 months of settlement agreement  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:

Accessibility: Free Library of Philadelphia Complaint  2012  Nook Simple Touch  No text-to-speech  Touch screen with no audible or tactile feedback  Pilot program for patrons 50+  In 5 of 54 library locations 15

Accessibility: Free Library of Philadelphia Settlement  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: courts/pennsylvania/paedce/2:2012cv02373/461996/14/1.htmlhttp://docs.justia.com/cases/federal/district- courts/pennsylvania/paedce/2:2012cv02373/461996/14/1.html 16

Accessibility Lessons learned in eReader lending  Accessible eReaders  Text-to-speech capability  Access to menus with audio/tactile feedback  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  e.g. includes dyslexia 17

First Sale Doctrine 18

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  With physical objects, some associated issues can be solved via secondary markets 19

First Sale Doctrine  Owner vs. Licensee  Copy & Delete 20

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  Licensees do not get benefit of first sale doctrine  Test depends only on the copyright holder’s actions, not the purchaser’s  9 th Circuit: persuasive, but not binding authority in Indiana 21

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.”  f=hp_ _storeTOU1?nodeId= (emphasis added) f=hp_ _storeTOU1?nodeId=

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, non- commercial use of the Digital Content in accordance with these Terms of Use.”  (emphasis added) 23

First Sale Doctrine: Licenses Library Licenses  OverDrive Consortium Access Agreement  “OverDrive grants the Consortium, Participating Library and/or Authorized Patrons a non-assignable, non- transferable, limited license to use the Digital Content provided by OverDrive’s suppliers for personal, non- commercial use.”  (emphasis added) 24

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: nts/AAIM20133M%20Cloud%20Library%20Service%20Benefits.pdf (emphasis added) nts/AAIM20133M%20Cloud%20Library%20Service%20Benefits.pdf  But be cautious:  Random House repeatedly said libraries “own” ebooks, just meant content can migrate across platforms  st-another-word/ st-another-word/ 25

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 26Images from Microsoft Clip Art MeBuyer

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 27Images from Microsoft Clip Art Me Buyer ReDigi

First Sale Doctrine: Resale Can digital files be sold under First Sale?  Yes, but:  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) 28

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.”   IT publisher, books quickly made obsolete anyway 29

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 30

Privacy Concerns 31

Privacy Concerns  Content Providers  Third-parties (e.g. OverDrive, Amazon) may be collecting data on your patrons  Devices  What does your device keep track of? 32

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.”  ALA Resolution on the Retention of Library Usage Records s/libraryusagerecords s/libraryusagerecords 33

Privacy Concerns  When Amazon lends a library kindle book, it retains a user’s notes and other data  Even after the loan ends  A perk? 34

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: privacy-disclaimer-pops-up-in-wisconsin-in-virginia-questions-about-catalog-disparities/ privacy-disclaimer-pops-up-in-wisconsin-in-virginia-questions-about-catalog-disparities/ 35

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: privacy-disclaimer-pops-up-in-wisconsin-in-virginia-questions-about-catalog-disparities/ privacy-disclaimer-pops-up-in-wisconsin-in-virginia-questions-about-catalog-disparities/ 36

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.” 

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.”  Available at: /AAIM20133M%20Cloud%20Library%20Service%20Benefits.pdf /AAIM20133M%20Cloud%20Library%20Service%20Benefits.pdf 38

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 

Privacy Concerns  Let library patrons know that third-party websites are not covered by your privacy policy  Just because the library doesn’t collect the data doesn’t mean that nobody is 40

Legal Issues in eContent  Accessibility  Text-to-speech & feedback on buttons/touch screen  First Sale Doctrine  Won’t apply to eContent unless actually owned  Resale may be difficult/impossible without copying  Privacy  When patrons use your eContent, someone is likely collecting data on it  Consider notifying patrons 41

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  miss-the-first-sale-doctrine-in-digital-libraries/ miss-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)  number-1 number-1 42

Questions For questions about this presentation, contact:  Angela Moore:  At ISL until July 31st For questions about how eContent issues specifically affect your library, contact your library’s attorney. 43