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Materials Challenges in the Library: What Does the Law Say?

Letters of the Law with Tomas A. Lipinski

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, Lipinski addresses new regulations governing exemptions to copyright law, case law surrounding challenges to public library collections, and legal factors when considering controlled digital lending.

Updated regulations from the US Copyright Office and the Library of Congress outlined new exemptions for circumvention of copyright law in October 2021. What does this mean for libraries?

Congress has realized that part of the Digital Millennium Copyright Act of 1998, Section 1201—which prohibits the “circumvent[ion of] a technological measure that effectively controls access to a work protected under this title”—could jeopardize or adversely affect noninfringing uses, like in most library settings. So, there is a mechanism by which users can request a regulatory exemption to the statutory prohibition on circumvention, and the regulations are periodically updated.

GovInfo provides a deeper look at the explanations for the latest round of exemptions. There are several provisions that might interest public libraries: those that involve face-to-face instructional activities, those supporting the accessibility of content or equipment, and those governing preservation activities of certain works.

The first exemption allows circumventing an access control on motion pictures, including television shows and videos, for education purposes by “educators and participants in nonprofit digital and media literacy programs offered by libraries, museums, and other nonprofit entities with an education mission.”

Several provisions support accessibility services. Literary works with technological measures that “prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies” can be circumvented by qualifying entities—including public libraries—that function with “a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind [persons] or other persons with disabilities.” Cornell Law School’s Legal Information Institute breaks this provision down further. Another provision allows circumvention of videogames in the form of computer programs to allow “an individual with a physical disability to use software or hardware input methods other than a standard keyboard or mouse.”

A final set of exemptions relate to the preservation activities of an eligible library. To be eligible, a public library must have a collection that is lawfully acquired or licensed and open to the public or “routinely made available to researchers who are not affiliated with the library.” Second, the library must have a “public service mission” and its staff or volunteers must “provide professional services normally associated with libraries.” Finally, the library must implement “reasonable digital security measures.”

Three types of works can be circumvented, and the same rules generally apply to all: Preservation must be done with no direct or indirect commercial advantage; the item must be lawfully acquired, damaged or deteriorating, and unavailable elsewhere; and distribution or display must be limited outside the library.

  • Motion pictures, including television shows and videos, in DVD or Blu-ray format
  • Videogames in the form of a computer program when “access to an external computer service” is no longer provided; copying and modification are allowed to restore access to the game on a PC or game console
  • Computer programs including “digital materials dependent upon a computer program as a condition of access,” except videogames

With the ongoing wave of challenges to books and materials in public library collections, typically under the guise of so-called parental empowerment initiatives, what legal principles should we bear in mind?

As we have discussed in prior columns on meeting rooms, patron space in a public library is best thought of as a limited public forum for free speech, meaning that any restrictions on that speech must be narrowly tailored to serve a significant government interest. The public library collection itself, however, is a nonpublic forum where patron speech is most limited, and the library possesses the broadest ability to regulate that space (by deciding what goes into the collection). This has been upheld in United States v. American Library Association (2003) and Egli v. Chester County Library System (2019), which found that “libraries have broad discretion in determining the content of their collections.”

This discretion is not without limit. In a legal context, the library’s policies and conduct regarding content decisions must be reasonable or, in the view of the courts, must pass a test known as rationale basis (see Board of Education, Island Trees Union Free School District No. 26 v. Pico, 1982).

The policy or conduct must also be viewpoint neutral. But what exactly constitutes a viewpoint in the context of contemporary book challenges? One example: Content on human sexuality is considered a category of speech, but an expression of support for heterosexual perspectives over LGBTQ perspectives is a viewpoint. Thus, attempting to block, filter, or remove content that favors one viewpoint is legally impermissible (see Parents, Families, and Friends of Lesbians and Gays Inc. v. Camdenton R-III School, 2012, and Case v. Unified School District No. 233, 1995).

The courts have repeatedly upheld that it is the role of the librarian to decide what content belongs in a public library collection and how it is displayed, not parents’ groups or any other subset of the community. For example, implementing a process whereby 300 members of the community could sign a petition requesting the LGBTQ content be relocated from the children’s area to the adult stacks was found to be “nonetheless constitutionally objectionable” (Sund v. City of Wichita Falls, Texas, 2000). Requiring parental permission to access certain materials is likewise problematic (Counts v. Cedarville School District, 2003, which involved the Harry Potter books).

This does not mean a public library couldn’t decide to institute a parental preference process; it could do so, assuming the library is willing to undertake the administrative burden, but it would still be impermissible to require a parental preference before a child could access certain content. The default of access would have to change from “no child can access unless we have your parent’s permission” to the “every child can have access unless your parent indicates you cannot have access to the content” (see Brown v. Entertainment Merchants Association, 2011). Further, there is no indication in the case law that a library could be forced to institute such a parental preference process unless mandated by the library’s board or a state statute to do so.

What legal aspects of controlled digital lending (CDL) should public libraries be aware of in light of the ongoing pandemic and the growing popularity of ebooks?

The existing interlibrary loan provisions of US Code section 108—which empowers libraries to reproduce materials in certain circumstances—may apply to CDL, but its requirements do not quite fit the spirit of the practice, which involves the item returning to the control of the library after the digital loan period is concluded rather than becoming the property of the user.

Another option is to consider CDL schemes within a fair use analysis, which I’ve discussed in a previous column relating to online programming during the pandemic. David R. Hansen and Kyle K. Courtney provide a thorough analysis of CDL and fair use in their 2018 white paper on the topic, in which they argue in favor of CDL as long as six requirements are met. Hansen and Courtney say that libraries should:

  • Ensure that original works are acquired lawfully
  • Apply CDL only to works that are owned and not licensed
  • Limit the total number of copies in any format in circulation at any time to the number of physical copies the library lawfully owns (maintain an “owned-to-loaned” ratio)
  • Lend each digital version only to a single user at a time just as a physical copy would be loaned
  • Limit the time period for each lend to one that is analogous to physical lending
  • Use digital rights management to prevent wholesale copying and redistribution

Relying on fair use to justify CDL is not without risk, the authors conclude, but “a library is acting within fair use if it digitizes and lends to users the full text of a copyrighted book, provided it does so within carefully implemented limits and safeguards … and provided that the library’s primary purpose for making and using the digitized book is limited to uses that are within the distribution and related rights that all libraries have under the first sale doctrine, as applicable to the original book in the collection.”

Ultimately the decision to engage in CDL depends on the level of legal risk the library is willing to accept, as no court has definitively addressed this issue yet. Obviously, a work in the public domain poses no risk from digitization and digital lending. Works near the end of their copyright—especially those works no longer available in the marketplace and for which commercial viability no longer exists—may pose some risk, but certainly far less than that of works of popular fiction published in the past decade that are still available in the marketplace.

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.

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