Can the Library Protect Itself from Copyright Suits?
Our online column Letters of the Law explores a wide range of legal issues that arise in libraries, with the help of a pair of leading authorities: Mary Minow, a librarian who became a lawyer; and Tomas A. Lipinski, a lawyer who became a librarian. Together they have authored four books on the subject, including The Library’s Legal Answer Book (ALA Editions, 2003, with a new edition forthcoming in 2022), and led forums at American Library Association (ALA) conferences in collaboration with the Public Library Association (PLA).
In this edition, Minow explores the process through which libraries can immunize themselves from copyright lawsuits based on user postings.
What types of copyright lawsuits can libraries protect themselves against, exactly?
By crossing some t’s and dotting some i’s—and designating your library as an online service provider with the US Copyright Office—you can protect your library from copyright lawsuits that stem from user comments or other forms of expression that are possibly infringing on copyright. For example, if a user were to post a review of a book that included someone else’s copyrighted content, the copyright owner could file a lawsuit against your library for vicarious or contributory copyright infringement.
Section 230 of the US Communications Decency Act protects libraries and others from defamation, hate speech, misinformation, and nuisance claims by users based on online content published by others. It’s the shield that protects sites like Facebook from liability from user comments. However, it explicitly does not protect from copyright claims. For that, you need to take a couple of steps to register your library as a safe-harbor exclusion from copyright claims.
As long as the library has no actual knowledge of infringing material on its system and no awareness of facts or circumstances through which infringing activity is apparent, it can shield itself from liability by registering a copyright agent with the US Copyright Office. The library’s copyright agent must respond expeditiously to takedown notices. Check with the office to see if your library has an active designated agent. Registrations last for three years, and it’s quick and easy to apply online.
A designated agent may be an individual (example: Jane Doe), a position (example: copyright manager), a department (example: Copyright Compliance Department), or a third-party entity generally (example: ACME Takedown Service). The designated agent does not need to be a lawyer but must regularly check for and respond to submitted takedown notices. The identity and contact information of the agent must be readily findable on the library’s website, enabling an aggrieved copyright owner the information needed to issue a takedown notice. The contact information can be linked on your website’s footer, below the Contact Us link or something similar. Stanford University provides a good example of placement and sample language.
After your designated agent is registered with the Copyright Office, its online system will automatically email a reminder 90 days prior to the renewal deadline.
What should the library do if it gets a takedown notice?
There is an established set of procedures to be sure your immunity is maintained. Essentially, the library must expeditiously remove or disable access to the infringing material. It must also make reasonable efforts to promptly notify the user who posted the material that it has been removed. This gives the user an opportunity to submit a counter notice if the material was removed by mistake or misidentified. The Copyright Office lays out specific requirements for notices and counter notices.
Giving the user information on counter notices and restoration of their content is recommended as a legal best practice. The Lumen project of the Berkman Klein Center for Internet and Society at Harvard University describes the procedure in a helpful way for patrons who may believe that their material was wrongly taken down. Quite often, once a counter notification is sent, copyright owners let it go and the material can be restored.
If a library does not designate an agent or keep its filing current, it risks losing the safe-harbor protections of section 512 of the US Digital Millennium Copyright Act, leaving it potentially vulnerable to certain types of claims of copyright infringement.
Can we get sued if a patron is using our equipment, such as a scanner or public printing terminal, to make illegal copies?
The designated copyright agent and safe-harbor exclusion do not help in this case. However, a special provision of the US Copyright Act known as “the library exception” (Section 108) protects libraries from this kind of user infringement. You likely already have a notice by your photocopier, and placing the same notice next to any reproducing equipment is recommended.
The provision reads: “Nothing in this section shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises, provided that such equipment displays a notice that the making of a copy may be subject to the copyright law.”
The notice your library posts might simply read: “Using library equipment to copy and distribute copyright-protected works may be an infringement of the copyright law (Title 17 US Code).”
The information in this column does not constitute legal advice, nor does it necessarily reflect the views of ALA or PLA. It is meant to serve as a starting point for librarians and library lawyers who wish to research the law and consider its applications. Different jurisdictions will have different laws and may even apply the same laws differently. If you require legal advice or expert assistance, we urge you to seek the services of a competent legal professional.
Look for a new column by Lipinski in the fall. Send questions or ideas to Associate Editor Sallyann Price at firstname.lastname@example.org.
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