1. Ebooks and Libraries: Tuesday March 12, 2013 Presented by Mary Minow, J.D., A.M.L.S. LibraryLaw.com Legal Issues for Library Administration and Staff An Infopeople Webinar Infopeople webinars are supported in part by the U.S. Institute of Museum and Library Services under the provisions of the Library Services and Technology Act, administered in California by the State Librarian. This material is licensed under a Creative Commons 3.0 Share & Share-Alike license. Use of this material should credit the author and funding source.

2. Legal information Not legal advice! Legal Disclaimer

3. Ebooks and Libraries: Legal Issues Library ebook lending update Lending ebook devices including disability access Licenses and Emerging Issues

4. Library Ebook Lending “There is an overall disconnect between publishers and distributors of e-books and libraries throughout the state. The main roadblock is no stable pricing/licensing or availability from publishers to libraries. Some offer no titles, some charge exorbitant amounts, and some offer only selected titles. I think a standard policy of access and pricing, across the board is in everyone's best interest.” Rep. Brian Sear, 47 th Assembly District Connecticut

5. Connecticut bill to require publishers “sell” ebooks to libraries at consumer prices hearing archived at http://www.ctn.state.ct.us/CTNplayer.asp?odID=867 7 http://www.ctn.state.ct.us/CTNplayer.asp?odID=867 7

6. http://evoke.cvlsites.org/files/2013/03/DCL-Pricing-Comparison-3-4-13.pdf Many ebooks are not available to libraries. Others have much higher prices. Many ebooks are not available to libraries. Others have much higher prices.

7. http://www.ala.org/transforminglibraries/sites/ala.org.transforminglibraries/files/content/Ebook%2 0and%20libraries%20FAQ_rev2%2013%2013.pdf two books to date Minotaur backlist – expires after two years or 52 lends backlist; pilot with newer, double prices pilot: delay six months, expires after one year 26 checkouts dramatic price increases

8. Why is it different with Print Books? Loan books Sell used books Copyright Law- First Sale 17 U.S.C. Sect. 109

9. Lending Content Copyright Specific Copyright Exception: FIRST SALE PART OF PUBLIC LAW

10. Lending Content License Specific Copyright Exception: FIRST SALE PRIVATE CONTRACT overrides copyright law (almost always)

11. Vendors need licenses Specific Copyright Exception: FIRST SALE PRIVATE CONTRACT overrides copyright law (almost always) VENDORS NEED LAYER OF CONTROL Copyright only protects authors/publishers

12. Digital First Sale? Outdated law. Rights triggered when copy is made, even if original is deleted.* *may make INCIDENTAL OR FAIR USE argument, depending on circumstances

13. Digital First Sale? Outdated law. Rights triggered when copy is made, even if original is deleted.* *may make INCIDENTAL OR FAIR USE argument, depending on circumstances

14. Digital First Sale? Outdated law. Rights triggered when copy is made, even if original is deleted.* *may make INCIDENTAL OR FAIR USE argument, depending on circumstances

15. Case to Watch: Capitol Records v Redigi http://dockets.justia.com/docket/new-york/nysdce/1:2012cv00095/390216/ A right to sell used digital music? MP3 reseller Deletes MP3 from user’s computer

16. If Yes, Ebooks Next https://www.redigi.com/learn

17. Licenses Offer Access with Restrictions No perpetual rights When contract ends, ebooks disappear

18. Licenses understand default copyright rights before signing understand default copyright rights before signing

19. Alternative – Library Hosting Skip Platform Vendor OK: Public Domain Creative Commons Permission (e.g. local author)

20. Hosting with Ownership examples Douglas County Libraries and Califa Uses copyright law, not license Describes how copyright law applies One user- One loan Statement of Common Understanding http://jaslarue.blogspot.com/2012/01/statement-of-common-understanding-for.html

21. Additional Layer of Content Control: Digital Rights Management (DRM) and Digital Rights Mgmt “Technological Protection Measures” Additional Layers Multiple versions of DRM protects content - Limits copying, printing - Limits loan time

22. Illegal to Tamper with Digital Rights Management DMCA Digital Millennium Copyright Act Exception: ok to make lawfully obtained nondramatic works accessible for print disabled Oct. 2012 - 2015 see http://www.copyright.gov/1201/

23. Internet Archive 20 th Century Ebooks http://openlibrary.org/borrow Scans print copies and puts in deep storage One book One user A combination of First Sale and Fair Use

24. How to use OpenLibrary http://openlibrary.org/help

25. 200,000+ books 1000 circulations per day http://openlibrary.org/librariesin its third year endorsed by COSLA

26. http://openlibrary.org/subjects/accessible_book For legal support of Fair Use and disability access, see Authors Guild v Hathi Trust DAISY format National Library Service for the Blind and Physically Handicapped (NLS) users qualify. 3 million DAISY 200,000+ modern ebooks 3 million DAISY 200,000+ modern ebooks 26

27. Lending Devices: Disability Access Brown v. Free Library of Philadelphia Nook Lending Program Federal funds Claim: ADA Title II Sect. 504 of Rehabilitation Act Settlement: purchase only fully accessible mainstream devices "Fully accessible” ebook devices means a blind individual may access or acquire same information, engage in same transactions, and enjoy same benefits and services of the book reading device as a non-disabled individual with substantially equivalent ease of use http://docs.justia.com/cases/federal/district-courts/pennsylvania/paedce/2:2012cv02373/461996/14/ See also Dear Colleague Letter http://www2.ed.gov/about/offices/list/ocr/docs/dcl-ebook-faq-201105.html SETTLEMENT Oct 23, 2012

28. Similar Settlement: Sacramento Public Library May not add additional inaccessible content Must provide device with text-to-speech and access to menus and controls (other than touch screens without audio and tactile feedback) May require users to attest eligibility in writing … but may not require doctor’s note [See also 28 C.F.R. Sect. 35.138(h)(2)] http://www.ada.gov/sacramento_ca_settle.htm August 28, 2012

29. 2013 http://pld.dpi.wi.gov/files/pld/pdf/ebook_guidance.pdf

30. Nook update National Federation of the Blind – Nook App for iOS NYT 2/25/13 Barnes & Noble Weighs E-Reader Investment

31. Kindle report card Shows inaccessibility of kindle http://www.readingrights.org/1315

32. Screenshot Readingrights.org Coalition of 30 organizations focused on ebook accessibility Screenshot Accessible Technology Coalition

33. Licenses and Emerging Issues Free Speech “Buy now” Privacy Sample License clauses

34. Free Speech and Withdrawing Books Who removes books? If public institution removes based on viewpoint, could trigger First Amendment Use same criteria for weeding as print Ebook trends: self published, very small presses, community “maker” movement

35. Private Enterprise: “Buy now” https://bilbary.com/ CHECK WITH LOCAL LEGAL COUNSEL *may we endorse a vendor? *may we get income? (cost recovery v. profit)

36. Privacy – Sharing Patron Reading Records 36

37. Privacy Clause Any such patron information shall be protected to an extent equal to or greater than that imposed on the library by a state privacy statute, other laws, or library policy under which the licensee-library operates. See other samples in Tomas Lipinski, The Librarian’s Legal Companion for Licensing Information Resources and Services (ALA: 2012) p.659

38. Termination Clause http://www.scribd.com/LibraryJournal/d/52439233-OverDrive-s-current-contract-with-Kansas-State- Library Kansas State Library – old Overdrive contract Newer version does not allow content transfer

39. Nondisclosure Clause Preferred Practices A. Non-disclosure language should not be required for any licensing agreement, particularly language that would preclude library consortia from sharing pricing and other significant terms and conditions with other consortia. 7.1 The terms of this Agreement are confidential; however xxx reserves the right to use the name of Library for publicity purposes. International Coalition of Library Consortia 2004 Statement on preferred practices for selection and purchase of electronic information http://icolc.net/statement/statement-current-perspective-and-preferred-practices-selection-and-purchase-electronic See also Association of Research Libraries 2009 – ARL Encourages members to refrain from signing nondisclosure or confidentiality clauses http://www.arl.org/news/pr/nondisclosure-5june09.shtml May conflict with sunshine ordinances

40. 1. Replicating print model 2. Inclusion of all titles 3. Right to transfer content 4. Right to lend indefinitely 5. Accessibility 6. Integration with catalog 7. Single user 8. Limited number of loans 9. Variable pricing 10. Delayed sales with discounts 11. Premium for immediate access to delayed titles 12. In library checkout 13. Restrictions on consortia/ILL 14. Enhanced discovery 15. Sales channel (buy link) http://www.districtdispatch.org/wp-content/uploads/2013/01/Ebook_Scorecard.pdf Ebook Scorecard

41. Resources http://www.alastore.ala.org/ 2013 2009 2012 and blog Website liblicense

42. http://www.infodocket.com/2013/01/30/ifla-releases-thinkpiece-on-libraries-e- lending-and-the-future-of-public-access-to-digital-content-27-pages/

43. Summary Library ebook lending update still in disarray, getting more attention Lending ebook devices ensure disability access Licenses and Emerging Issues

44. Questions? Thanks for attending webinar. Mary Minow consult@librarylaw.com

45. Infopeople webinars are supported in part by the U.S. Institute of Museum and Library Services under the provisions of the Library Services and Technology Act, administered in California by the State Librarian. This material is licensed under a Creative Commons 3.0 Share & Share-Alike license. Use of this material should credit the author and funding source.