This Week in LIS - 16 October 2009

Headline of the Week: Copyright: A Case Decided

This past Wednesday, Blackwell Publishing, Incorporated et al v. Miller was decided, offering further insights into legal interpretation of Fair Use for libraries. Such cases play important roles in helping us to discern how to legally and properly provide information services with copyrighted material. This case is similar to the oft-cited Michigan Document Services that covered coursepack reproduction by third-party vendors. In the current case, Excel Test Preparation, Coursepacks & Copies was accused of violating copyright by several major publishers. The court ruling describes the business model:

First, a professor brings Excel photocopies of the contents of the coursepack (or creates copies using Excel’s copy machines). These photocopies become the “master” copy. Excel numbers the pages by hand. It take steps to ensure good copy quality, which may require re-copying the original source.

A student wanting a coursepack comes to Excel’s premises and fills out a form on which the student writes the course the student is enrolled in and for which the student needs the material. The form contains a statement to the effect that: “I am a student in this class and am making a copy for educational purposes.” The student signs and dates the form. The student hands the form over to an Excel staff member who retrieves the “master,” hands it to the student, who then makes a copy using Excel’s copy machines. Excel also offers the student binding services, where an Excel staff member uses a special binding machine to bind all the pages of the coursepack. The student pays Excel.

Excel does not pay copyright fees to the publishers, which it admits enables it to charge a lower fee than if the students obtained the materials at a traditional “copyshop” or copied the materials on a copy machine located on campus. As Miller testified at deposition:

Since each student is making just one copy for his or her own individual use, no copyright permissions or royalty fees are involved . . . As a result, you have greater flexibility and convenience in selecting your readings and your students benefits by paying substantially less (generally saving 50% or more) for their coursepacks.

Does this scenario sound familiar? Essentially Excel has formed a third-party reserve service built around the argument that if they aren’t the ones pressing the “Copy” button, they aren’t responsible for copyright clearance. Libraries follow this same model almost exactly by collecting materials, maintaining them on reserve, providing them to students who then use our duplication equipment (for which they pay us – and likely more than just cost) to copy them.

So what did the court have to say about this activity? It is illegal. Three arguments were advanced by Excel:

Reproduction of the works were covered under license agreements made by the University of Michigan with publishers.
The court found that even when such licenses existed (which they didn’t in all cases), Excel was not a licensed user as a third-party for-profit organization. Therefore their custody and use of copyrighted material was not covered under license. This finding likely doesn’t concern libraries much as libraries function as integrated units of an enterprise engaged in teaching and learning. Therefore in the case of licensed use libraries would be included and covered.

Because students made the copies, Excel carried no liability in their actions.
The court found that because Excel controlled the master source of reproduction, owned and operated the equipment used for reproduction, and provided staff assistance for reproduction to occur, they cannot absolve themselves of liability given that they structured their business to encourage and profit from this business. The court noted that it would be different if a student on their own walked in the front door to copy a coursepack. The court in essence found intent to duplicate without permission. This is more worrisome from a library perspective in that often library copyright policies focus on education on users to be responsible for their own compliance. This has been supported by Section 108 of the Copyright Act which grants safe harbor for libraries in these cases. However this court decision chips away at that argument, and now brings Section 108(f) to the forefront for reconsideration about how that section is interpreted. Granted libraries aren’t set up to fund themselves off of copy revenue, but there is revenue involved for libraries.

Use and reproduction of these materials fell under Fair Use.
The court examined this claim along the four factors of fair use. Excel claimed because the material was for teaching, reproduction favored Fair Use. The court disagreed, saying that the professors may have enjoyed Fair Use, but Excel did not. It also found that use of the materials in this way met none of the other factors for Fair Use (nature of the work, amount of the work, effect on the market for the work). This interpretation held closely to the findings in the Michigan Document Services case, and does not change interpretations of Fair Use for libraries.

Peter Hirtle notes this ruling is a mixed bag. While it raises questions of how libraries have long provided access to reserve materials and reproduction devices, it also does not try to make new rulings in clearly difficult areas. This finding references the Sixth Circuit appeal of the Michigan Document Services case:

As to the proposition that it would be a fair use for the students or professors to make their own copies, the issue is by no means free from doubt. We need not decide this question, however, for the fact is that the copying complained of here was performed on a profit-making basis by a commercial enterprise. And, “[t]he courts have . . . properly rejected attempts by for-profit users to stand in the shoes of their customers making nonprofit or noncommercial uses.

This is a reminder of the fragility of Fair Use in legal opinion, and while clarity is often a good thing, with the general tone of legal cases shading toward copyright owners, there is a real threat to Fair Use through cases such as this. Interestingly there is another case in the pipeline (Cambridge University Press et al v. Patton et al) that also deals with the issue of making copyrighted material available to students without paying clearance fees, though this one does directly involve a university and library. It is likely this upcoming case will provide very direct and relevant data to base policies on for the future. Stay tuned …

Link to the full ruling in Blackwell Publishing, Incorporated et al v. Miller

LIS Blog Highlights from the Week

The following articles are sampled from those available on the LIS Blog:

Notes from LIS Council

LIS Council is the leadership team within LIS. Among the topics discussed this past week were:

  • NEIT Cell Phone Coverage on Campus — Adam will be meeting with representatives from NEIT (iWireless) and Facilities to discuss improving GSM cell phone coverage on campus. We also discussed contacting Verizon/U.S. Cellular as well for addressing troublesome spots for CDMA coverage.
  • Iowa/Microsoft Antitrust Settlement — Luther has received benefits from the legal settlement between the State of Iowa and Microsoft. No decisions have been made on how those benefits will be used by the College.
  • Student Residential Telephone Service — Dennis Blake has proposed assigning static telephone numbers to rooms instead of assigning them to students. After implementation, this would significantly improve workflow as telephones would not change from year to year. We will be discussing this with Student Life and Residence Life before making a final decision.
  • Renovations for Miller Hall — While no decisions have been made, LIS will be planning to be ready with renovation upgrades when the College makes a final decision to move forward on renovations.
  • Service Points Update — The group that will inhabit the former Help Desk area has met and will meet again to finalize thinking for those office spaces.
  • Emergency Response Planning — We discussed considerations for using Citrix and VPN for off-campus employees in the event of a campus emergency, particularly limitations thereof and licensing issues. We are now engaging administrative offices to be proactive in thinking about how they would function in these situations.
  • Luther Artwork to American Embassy in Norway — Final arrangements are being made to send works from our Norwegian-American collections to Oslo on loan.
  • NetLibrary and Macs — There is an issue with using NetLibrary books on Macs.
  • CFA Network Upgrades over Fall Break* Portions of the CFA wired network will be down early in the week for switch upgrades.

The User Perspective on LIS Services: David Kamm

David Kamm, Luther’s first gallery coordinator, has been working with Luther’s fine arts collection for the past twenty years and also serves an assistant professor of art in the Center for the Arts. Kamm received his undergraduate degree from Wartburg and his graduate degree from the University of Iowa. Before taking the gallery coordinator position, he used to hand paint signs on a freelance basis.

As the Luther gallery coordinator, Kamm is tasked with arranging art exhibitions from professionals and students alike across campus. He also assists in managing the fine arts collection which consists of about 1,400 pieces and assists with the repairs and maintenance the collection requires. The main galleries are in the Center for the Arts, Preus Library and the Center for Faith and Life. He likes to make the displays diverse as well as coordinate them with specific events. For example, the Navajo exhibit that began in early September 2009 in the Center for the Arts coincided with a weaving conference at the Vesterheim. A book art exhibit also was scheduled to be on display in the Library for its 40th Anniversary. But sometimes the displays are simply for “the sensory delight, that’s all we need sometimes,” said Kamm.

Among the services provided by LIS that Kamm finds most useful for his work are the special collections held by the library. Every year he helps the Decorah High School by doing a presentation on pottery to inspire ideas for their art class using materials held in the library. The library’s rare book collection is another resource that he uses in his classes as a reference for some projects. In 2011, Kamm is planning to have an exhibit on Jens Jensen, the designer of the Luther campus, to celebrate that anniversary and will be utilizing the Library archives for material.

What are the Special Collections? Special Collections is an umbrella term used at Preus Library for materials located in areas of the library that are typically outside of or separate from the main collection. Materials in Special Collections do not circulate and are segregated from the main collection in closed stack areas to which there is no public access. However, most of the materials are cataloged and can be found on Magnus, the online catalog.

Areas included in Special Collections are the Alumni, Faculty/Staff, Luther College Press collection, the DEPO collection and the Rare Book collection. Two adjunct assemblages of materials related to Special Collections, administered under the aegis of the library, should also be mentioned. The Luther College Archives collects and makes available records of enduring value, focusing principally on the College. The Fine Arts Collection, comprised of the visual art owned by the College, is supplemented by extensive documentation maintained on the art and artists represented in the collection.

More information about Special Collections in the Luther College Library is available.

— Contributed by Adam Kobler ’11

NITLE Opportunities

As a member of NITLE (National Institute for Technology and Liberal Education), Luther has the opportunity to participate in a wide variety of developmental and training programs intended for faculty, librarians, and information technologists. Events listed at the link below are currently open for registration by Luther participants. LIS Staff who are interested in participating in an event should speak with Christopher Barth. Faculty who are interested in participating should speak with Lori Stanley. Participation is contingent upon available funding and program acceptance.

A full list of events (sortable by registration deadline) is available at http://www.nitle.org/www/events.

Upcoming LIS Training, Instruction, and Professional Development Opportunities

Click on the event below for specific information and for a link to register. More information on training and development events is available.

CourseFormatDateStart TimeEnd TimeLocation
Social Networking Basics: Getting Started with Facebook and TwitterSkills TrainingOct 209:00 am10:00 amOlin 301 – Round Table Room
Norse Mail Tips & TricksSkills TrainingOct 2211:00 am12:00 pmOlin 301 – Round Table Room
New Faculty Teaching Group: Research and Technology ResourcesFaculty DevelopmentOct 262:45 pm3:45 pmDahl Centennial Union – Nansen
Teaching Writing: Helping Students ReviseFaculty DevelopmentOct 264:00 pm5:30 pmOlin 101
Current Trends in Student CommunicationFaculty DevelopmentOct 284:00 pm5:00 pmOlin 301 – Round Table Room
Call Pilot Desktop MessagingProduct DemonstrationOct 292:30 pm3:00 pmDahl Centennial Union – Borlaug
MUS 231A: Introduction to Music ResearchLibrary InstructionOct 308:00 am8:00 amJenson-Noble Choir Room
MUS 231B: Introduction to Music ResearchLibrary InstructionOct 3011:00 am12:00 pmJenson-Noble Choir Room
MUS 231C: Introduction to Music ResearchLibrary InstructionOct 301:30 pm2:00 pmJenson-Noble 123
Call Pilot Desktop MessagingProduct DemonstrationNov 911:30 am12:00 pmDahl Centennial Union – Borlaug
New Faculty Teaching GroupFaculty DevelopmentNov 92:45 pm3:45 pmDahl Centennial Union – Nansen
Encouraging Student Participation with ClickersFaculty DevelopmentNov 123:00 pm4:00 pmTBA
Norse FormsSkills TrainingNov 192:45 pm3:45 pmOlin 301 – Round Table Room
New Faculty Teaching GroupFaculty DevelopmentNov 232:45 pm3:45 pmDahl Centennial Union – Nansen
Teaching Writing: Using Rubrics to Evaluate PapersFaculty DevelopmentNov 304:00 pm5:30 pmOlin 101
German 201: Intermediate German ILibrary InstructionDec 212:15 pm12:15 pmRare Book Room – Preus Library
New Faculty Teaching GroupFaculty DevelopmentDec 72:45 pm3:45 pmDahl Centennial Union – Nansen

Internet Resource of the Week: Adobe BrowserLab

Designing for the Internet isn’t a cakewalk. Not only does dealing with HTML/CSS involve all sorts of nit-picky code and headaches, there is the maddening fact that no two browsers render content the same way. This is even true of browsers in the same family (Internet Explorer 8 vs. Internet Explorer 7). Because standards aren’t guaranteed across browsers, designers are left to try to develop code that functions well or at least degrades gracefully. The challenge is testing designs in multiple browsers, since most folks generally use only one or two. Sites also have to be tested across platforms (Windows, Mac and Linux). Several sites online offer functionality that allows you to submit jobs and view screenshots of renderings so you can easily test multiple configurations quickly. Adobe has a product in this field called BrowserLab. It allows easy queueing of web pages in Firefox, Internet Explorer, and Safari on both Microsoft and Apple operating systems. Multiple versions of each browser are supported. While this service is not as complete as some others (does not include other browsers like Opera or Chrome) it is easy to use and relatively quick to deliver results. All that is required is an Adobe ID and a URL. Viewing sites can be done 1-up, 2-up or Onion Skin, which superimposes all the browser views into one image showing different layouts at once.

On the web at http://browserlab.adobe.com/

Quote(s) of the Week:

  • “Listening to newspapers’ supporters talk about the role they play in civic society and how we can’t live without them is like a fading movie star telling us how lovely her legs were back before talkies.” – Stowe Boyd
  • “We are not what we know but what we are willing to learn.” – Mary Catherine Bateson
  • “In times of change learners inherit the earth; while the learned find themselves beautifully equipped to deal with a world that no longer exists.” – Eric Hoffer
  • “What is more important in a library than anything else – than everything else – is the fact that it exists.” – Archibald MacLeish
  • “Put another way, the idea that Windows 7’s quality will spur upgrades from XP is predicated on the fact that the people holding out on XP make their computing choices based on quality. But if that’s the case, why exactly are they still running Windows XP? Why are they still using Internet Explorer? I think it’s hard to overstate the fact that, with the explosion of the Internet as a universal communication medium, hundreds of millions of PCs have been purchased around the world by people who don’t care about computers or software at all.” – John Gruber

Image of the Week: Frank & Ernest

Frank & Ernest

Video of the Week: 10/GUI

This video examines the benefits and limitations inherent in current mouse-based and window-oriented interfaces, the problems facing other potential solutions, and visualizes my proposal for a completely new way of interacting with desktop computers.

10/GUI from C. Miller on Vimeo.

Links of the Week

infoneer.pngThe links and media above are selected from material posted to Infoneer.net, which gathers links and comment on the worlds of libraries, technology, higher education, culture, intellectual property, copyright, information, ethics, design, professional identity, leadership, and the future. Subscribe to Infoneer.net RSS

This Week in LIS is published most Fridays by Christopher Barth, Executive Director of Library and Information Services at Luther College in Decorah, Iowa for the Luther College community as well as those interested in information services and higher education.

This issue is Volume 4, Number 7 (#134)

Content is made available under Creative Commons license. Creative Commons License

Related Categories: