Message from the President, Dec. 2014

Hello, VALL members! As we near the end of 2014 I just want to take a moment to thank you all for helping make this year - our 30^th Anniversary year – such a success.

We followed up AALL with another great turnout, this time at our Fall Meeting, which was held at Hunton & Williams LLP in Richmond, back on October 10. It was a great day, which started with a visit from AALL Vice President Keith Ann Stiverson. She reported on all of AALL’s activities during the year. In addition, we learned about net neutrality from Public Knowledge’s Sherwin Siy, as well as the copyright issues of 3D printing, from Washington & Lee Law Professor Sally Wiant.

At the end of the business meeting we topped off our 30^th Anniversary celebration, with the sharing of the VALL Memory Book by Sally Wambold; and with a nice cake and lovely toast by Jane Harrison, Chair of the 30^th Anniversary Committee.

Afterward, despite the rain we were treated to a tour of the Virginia State Law Library and Supreme Court courtroom, led by State Law Librarian Gail Warren; finally, we gathered at The Tobacco Company to wind down after such an eventful day.

Thanks to everyone who attended!



Sally Wiant, Professor of Law at Washington & Lee University, talks about 3D printing

VALL Member Sally Wambold shares a few memories that were collected in the VALL Memory Book.

Our yummy VALL 30^th Anniversary cake!

VALL 30^th Anniversary Committee Chair Jane Harrison makes a toast to end the fall meeting

State Law Librarian Gail Warren gets ready to lead her tour from the Virginia Supreme Court foyer into the courtroom

VALL Member Meldon Jenkins-Jones, Sherwin Siy of Public Knowledge and AALL Vice President Keith Ann Stiverson relax at The Tobacco Company

 

And so, as we turn the calendar to 2015, we are planning to make next year the biggest one yet for VALL. Stay tuned for upcoming announcements. 

 

Again, thanks so much for your participation in VALL. We certainly could not be as active and as strong an association without you all. 

 

May you have a wonderful holiday season; and I’ll see you next year!

 

Ben Almoite

 

 

 

 

Georgia State Case & Fair Use

By Paul Hellyer

 

Fair Use Guidelines After the Georgia State Case

In this last installment of VALL’s Copyright Column, we’ll take a look at the recent ruling from the 11^th Circuit in the Georgia State University copyright infringement case.[1] As other commentators have already pointed out, this ruling is mostly favorable to users and libraries. But it’s not a welcome development for anyone hoping to formulate fair use guidelines, because it rejects any notion of general purpose guidelines aside from the ambiguous statutory factors in Section 107. Librarians and users need guidelines, but what can we do when a court tells us that everything must be decided on a case-by-case basis?

First, some background info for those of you who need a refresher. In 2008, several publishers sued GSU for copyright infringement arising from GSU’s use of e-reserves. GSU had posted online many excerpts from the plaintiffs’ books as assigned reading for courses, sometimes relying on fair use instead of paying for a license. In 2012, the district court issued an opinion that almost entirely vindicated GSU, finding that all but a handful of the excerpts fell under the fair use exception.[2] In reaching its decision, the district court articulated some rules of thumb about when a use is a fair use, and this is what stirred up some trouble on appeal. The 11^th Circuit reversed and remanded, with instructions to reconsider the alleged infringements individually without the aid of nonstatutory rules of thumb.

Although the 11^th Circuit’s approach seems to be correct as far as the law is concerned, it’s certainly a lot less helpful than the district court opinion in providing actual guidance to the public. It’s tough to draft any e-reserves guidelines after reading this case. Let’s explore some of the difficulties the 11^th Circuit throws in our way.

The “10% or One Chapter” Guideline

The most prescriptive part of the district court opinion was the “10% or one chapter” guideline. The court developed this guideline to make it easier to apply the third factor of Section 107, which requires the court to consider “the amount and substantiality of the portion used.”[3] The court held that copying not more than 10% of a book, or not more than one chapter in books with ten or more chapters, weighed in favor of fair use under the third factor.[4] This part of the district court’s opinion lacked a solid legal basis, but it did have the virtue of being easy to apply. The language in Section 107 doesn’t give much guidance to a professor who’s trying to decide how much text she can copy for her students to read. Imagine how much easier it would be if the courts would just tell us how much we can copy. 

The 11^th Circuit threw some cold water on that idea. Not only did the 11^th Circuit reject the district court’s suggested limits, but it rejected any attempt to set general limits on the amount copied. Instead, the court ruled that the third factor must be analyzed separately for each instance of infringement and refused to accept the “10% or one chapter” guideline even as a starting point in the analysis.[5] The court pointed out that Section 107 refers not only to “amount”, but also to “substantiality.” In other words, users have to think about not just the quantity they’re copying, but also the significance of the content. This is the correct legal analysis, but it invites subjective judgments and unpredictable results.

Adding Up the Factors

Next, let’s consider what the 11^th Circuit said about weighing the four factors from Section 107. The 11^th Circuit complained that the district court took an “arithmetic” approach to the four factors by adding them up and finding fair use whenever at least three factors favored fair use. The 11^th Circuit held that the correct approach was to give different weight to each factor depending on the circumstances, then reach a decision considering all of the factors.[6] Even in situations where three out of four factors favor fair use, the 11^th Circuit holds out the possibility that the use is not fair. Again, the court’s legal reasoning is on solid ground, but the practical result is more uncertainty for users.

Fair use guidelines often give users a list of factors to consider—whether based on the four statutory factors or more specific factors suggested by the guidelines. It’s not too difficult to ask the user to add up the factors, or to point out that some factors are more important than others. It’s much more difficult when we say that any factor could be given particular weight depending on the circumstances, and that any single factor could outweigh all the others. This renders a list of factors almost meaningless for the average user. It takes a copyright expert to go beyond the “arithmetic” approach and decide which factors are most important in any given case.

Guidelines Don’t Sway the Court

Both the district court and the 11^th Circuit declined to follow the well-known “Classroom Guidelines” on fair use. [7] These guidelines were printed in a House Report accompanying the 1976 Copyright Act, so they’re about as close to official as nonstatutory guidelines can get. The rejection of these very conservative guidelines is a win for libraries and users, but the 11^th Circuit’s reason for rejecting them is troublesome.

It wasn’t really the Classroom Guidelines’ content that was the problem. Rather, the court rejected the Classroom Guidelines because fair use analysis must be performed on a case-by-case basis.[8] The court also held that industry best practices are “not relevant to an individualized fair use analysis.”[9] The somewhat startling message here is that nonstatutory guidelines carry little if any weight in copyright jurisprudence. If you think that following well-respected guidelines will protect you, think again.

What to Do?

In the face of this decision, can we continue to offer meaningful guidelines for e-reserves or for fair use generally? I believe the answer is yes, and I think that our guidelines can go beyond the ambiguous guidance offered by the 11^th Circuit or the four statutory factors from Section 107. In my view, guidelines don’t serve the same purpose as a court opinion or a copyright treatise. They’re not intended as an analysis of the law. They’re a pragmatic tool designed to reduce the risk of copyright lawsuits. If we do nothing more than offer ambiguous advice that tracks the language of Section 107 and the 11^th Circuit case, there’s no way of predicting how users who are untrained in copyright law will react. The result may be egregious infringements. So I think it’s a good idea for us to develop guidelines that are more specific than what the primary sources say.

We can accomplish this by offering specific examples of uses that have been found to be fair uses, or that we believe to be fair uses. We can compare and contrast instances of fair use and instances of infringement, even if those comparisons suggest bright lines that don’t really exist. I also believe we can continue to offer rules of thumb—such as the “10% or one chapter” guideline—even if they’re not supported by case law, provided that we offer a disclaimer that these are suggestions and not legal rules. A guideline will accomplish its purpose if it helps to cut down on infringing uses while supporting fair use. If litigation ensues, guidelines won’t carry any weight, but all they need to do is keep us from getting into litigation in the first place.  

---

[1] Cambridge University Press v. Patton, 769 F.3d 1232 (11th Cir. 2014).

[2] Cambridge University Press v. Becker, 863 F. Supp. 2d 1190 (N.D. Ga. 2012).

[3] 17 U.S.C. § 107.

[4] 863 F. Supp. 2d at 1243.

[5] 769 F.3d at 1271-72.

[6] Id. at 1260.

[7] Agreement on Guidelines for Classroom Copying in Not–For–Profit Educational Institutions with Respect to Books and Periodicals, H. Rep. 94-1476 (1976).

[8] 769 F.3d at 1273-74.

[9] Id. at 1272.



Nominations for VALL Board 2015-2016

Candidates are needed to fill three positions on the Executive Board: Vice President/President-Elect, and two-year terms for Treasurer and Director. The Vice President must be a member of AALL. Any VALL member may serve as Treasurer or Director regardless of AALL membership status.

 

Please contact any member of the Nominating Committee to nominate yourself or a fellow VALL member as a candidate for any/all open positions.

 

Please submit any nominations by January 15, 2015.

Candidates will be announced via the Chapter listserv on or before February 1, 2015.

 

Donna Bausch:dbausch@norfolklawlibrary.org, 757-622-2910

Suzanne Corriell:scorriel@richmond.edu, 804-289-2817

Greg Stoner:GStoner@mcguirewoods.com, 804.775.1068

Virginia's Access to Justice Commission: The First Year

by Gail Warren

 

 

In early 2013, utilizing an “Access to Justice Commission Expansion Project Grant” from the American Bar Association, the Supreme Court of Virginia convened an Access to Justice Planning Committee, chaired by Justice S. Bernard Goodwyn.  The committee was charged with determining whether an access to justice commission was needed in Virginia and, if so, what direction such a commission should take.  The committee recommended to the court the creation of the Virginia Access to Justice Commission and a little over a year ago, on September 13, 2013, the Supreme Court of Virginia established the Virginia Access to Justice Commission.

 

In creating this commission, Virginia joined 28 other states with access to justice commissions, each charged with expanding access to civil justice for low income and disadvantaged persons.  The mission of Virginia’s commission, which is comprised of judges, lawyers, and others, is to promote equal access to justice in Virginia, with particular emphasis on the civil legal needs of Virginia residents.  The commission is co-chaired by the Honorable S. Bernard Goodwyn, Justice, Supreme Court of Virginia, and John Whitfield, Executive Director, Blue Ridge Legal Services, Inc.  The full commission roster appears here: http://www.courts.state.va.us/programs/vajc/resources/members.pdf

 

The first meeting of the commission, in December 2013, provided an opportunity for introductions, a presentation by Steve Grumm, Director of the ABA's Access to Justice Resource Center, and, last but not least, consideration of the “operational nature” of the commission such as rules, tasks and agendas.  As a result of our discussion and the clear need for action, four working committees were established, each chaired by a member of the commission:

1. Pro Se Litigant/Court Access Committee (now the Access for Self-Represented Litigants Committee)
2. Pro Bono Committee
3. Judicial Education Committee
4. Public Relations/Communications/Education Committee

 

In addition to appointing each commission member to at least one of the above committees, the committees were charged with identifying and adding other professionals to their roster.  VALL member Patty Petroccione not only serves as the chair of the VALL Access to Justice Committee, she also serves on the Access for Self-Represented Litigants Committee of the commission and I serve on the Public Relations Committee.

 

Both Patty and I benefit from the wise counsel and support of the other VALL members serving on the VALL Access to Justice Committee, including Leslie Ashbrook, Donna Bausch, Robert Davis, Ben Doherty and Meldon Jenkins-Jones.  Many of you will recall this special committee was established in January of this year and its charge includes “advising the law librarian appointee to the Virginia Access to Justice Commission about the public’s needs for access to legal information and legal information literacy instruction, about initiatives of law librarians statewide in serving those needs, and issues concerning access to and use of legal information by this population.”  The committee is also responsible for coordinating “efforts of law librarians across the state to improve public access to legal information and legal information literacy instruction,” and reporting to VALL “about the relevant activities and interests of entities beyond Virginia’s borders and, conversely, share information about VALL’s activities and interests with outside organizations as appropriate.”

 

While the full Virginia Access to Justice Commission meets on a quarterly basis and submits quarterly reports to the Supreme Court of Virginia, the working committees meet far more frequently and are the “wheels” that are moving the commission toward its goals. [Note the commission’s meeting calendar at the Virginia Judiciary web site:

http://www.courts.state.va.us/programs/vajc/calendar/home.html]

 

Over the past year, the four working committees have completed a number of tasks, including:

• Revising the Virginia Judiciary web site to make it easier to locate the form for proceeding In Forma Pauperis [= proceeding without payment of fees or costs] and incorporating a link to Virginia Legal Aid
• Expanding the “Firms in Service” model beyond the Richmond Metropolitan Area to provide more opportunities for attorneys interested in pro bono service
• Creating a Virginia Access to Justice Commission Wiki to serve as a repository for commission rosters, meeting agendas and minutes, and links to access to justice resources
• Preparing a draft of “talking points” for commission members and others interested in promoting access to justice
• Providing focused judicial programming at the Judicial Conference of Virginia for District Courts, by arranging for Professor Kelly Tait, University of Nevada-Reno to address procedural fairness and self-represented litigants
• Drafting practice points for the bench books regarding self-represented litigants in the courtroom, to be reviewed by the Judicial Inquiry and Review Commission

 

Because Virginia’s Access to Justice Commission is intended to be a permanent entity within the judicial branch, I encourage more members of VALL to become involved -- one option for VALL members is utilizing your “current” connections with those currently serving on the commission.  For example, if an individual from your law firm or academic institution appears on the commission’s roster, offer this individual your research and legal information expertise for their commission activities.  And, even if you are unable to volunteer right now for a working committee or lend your expertise, there will be ongoing opportunities for law librarians in the years ahead.

 

Stay tuned for updates!



VALLkyrie Gail Zwirner, VALL Past President

by Sally Wambold

 

 

 

 

Kent Olson has dubbed Gail a VALLKyrie.  I was so delighted by this designation that I thought all VALL members should know who their VALLkyrie is!

Gail remembers becoming VALL president in 1999 after she began working at University of Richmond.  She also served as secretary and newsletter editor during her time at Hunton & Williams.

 

 

One of the most meaningful projects Gail has shepherded is the collaboration with the Virginia State Bar on the “Law Libraries” column in the Virginia Lawyer.  This project won VALL an AALL Excellence in Marketing award.  AALL wants to copy this project on the national level, a real VALLidation of VALL.  VALL authors have contributed almost 100 articles.

 

Gail believes the strength of VALL is its size which results in a smaller, tighter network and enables better communication.  VALL members can and do share information really well.  An example of great information sharing for Gail was the help VALL gave her that enabled her to use OCLC in the early days of online work in technical services.

 

 A fond memory for Gail was the fun she had when she attended the first official VALL annual meeting at the Norfolk Public Law Library when Gail Warren was VALL President and Jean Holcomb was the librarian at NPLL.  The meeting was held after VALL gained chapter status.

 

 Gail's first meeting as VALL President was at UVA.  Gail remembers learning the value of focus and limiting the scope of discussion at that town meeting, the theme of Gail's first meeting.

 

Another fine memory Gail shared is the work VALL did to get Lexis & Westlaw to include comprehensive access to all Virginia opinions.  As a result of VALL's work, other states followed.  What a contribution Gail made!

 

Jim Heller and Gail worked tirelessly to secure an Administrative Code for Virginia.

 

Gail also worked on the project to secure a preservation copy of the Virginia Reports.  This set is housed at the Virginia Historical Society.

 

Gail believes VALL has made these contributions because of outstanding leadership.

 

Gail's memories and insights made me think of the Peter Principle, which includes the concept of smaller groups doing better work.

 

I have to express gratitude to Gail for presenting these memories.  I hope others will find them as motivating as I do.

 



Factory Man by Beth Macy

By Evelyn Campbell

   Factory Man is about John Bassett III, a third generation factory man, whose family built the Bassett Furniture Company, once the world's biggest wood furniture manufacturer in the world. It is also more than a story about a fascinating man who stood up against price dumping from China and fought to keep his family business going. More importantly it is a story about what globalization has done to the American worker -- as industries fled the US, millions of workers lost their jobs and once thriving towns withered, the factories and plants that once sustained them, standing empty and abandoned.
  Beth Macy gives voice to former furniture workers like Wanda Perdue, who asked her to go to Surabaya, Indonesia, where most of the world's furniture is now made. "I want you to see what they do in Indonesia and explain to me why we can't do that here no more," Perdue said.
  Macy shared parts of this her first book with a packed room at the Library of Virginia's Book Talk series and later signed copies of Factory Man for the audience.

In Memoriam: Joan Cochet

Remembering our colleague, Joan Cochet, who passed away on Oct. 9, 2014. Joan's Obituary

From the National Center for State Courts:

NCSC and nation's court community experience loss
NCSC Library resource manager touched many lives

NCSC and the nation's court community lost a friend and colleague October 9 with the unexpected death of Joan Cochet, NCSC Library resource manager. Joan worked at NCSC for 10 years, during which time she touched the lives of court professionals around the country. In addition to her NCSC colleagues, Joan worked closely with court leaders, members of the nation's court associations, and Fellows of the Institute for Court Management. Joan was the court community's go-to person, no detail or resource too obscure for her to locate. "Joan possessed the unique combination of being extremely knowledgeable and professional and equally genuine and personable. She made an impact on everyone she met," said NCSC President Mary McQueen. Joan's reach is evident through the outpouring of condolences NCSC has received upon word of her death. "Joan's passion for NCSC's library was evident and she was truly dedicated to helping all of us be successful," said ICM Fellow Faye Guertin, deputy court administrator, Chandler Municipal Court, in Arizona. Joan is survived by her husband, Anthony Andrew Cochet, Sr.; son Anthony Andrew Cochet, Jr.; daughter, Cheryl Cathleen Cochet; grandchildren, Camile Joan, Noah, and Drew; twin sister Jean Ann Gentry; and father, David Galliart.

Orbis-Cascade Summit

By Jennifer Gonzalez

This program at the 2014 AALL Annual Conference was an open and honest discussion on the challenges of creating a shared catalog among many libraries.  Three speakers from the University of Washington Gallagher Law Library shared their view of the Alliance, specifically illuminating their struggles and how reality was different from what they expected.

The Orbis-Cascade Alliance is a partnership between 37 academic libraries (both public and private) in Oregon, Idaho, and Washington that will share an Integrated Library System —both the front end and back end.  The goal is to seek efficiency and productivity, or to “do more with less.” In fact, they found it to be a “moral obligation” to save the library money in participating in this alliance.

The entire migration will take quite some time to complete. The University of Washington was in the first of four cohorts, or divisions, of the 37 libraries. It is the largest university in the alliance and wields great influence in creating the shared ILS, particularly by being one of the first libraries to migrate. 

Richard Jost spoke first, offering the systems librarian or technical aspect. He was involved in the early stages of planning and leading the change in the law library. He spoke about the choice of Ex Libris as the ILS for this partnership. While Ex Libris was more expensive than other options, it was willing to be a development partner and had a greater understanding of the consortial concept.

Richard then explained some of the challenges he faces as the technologist in charge of the project. Among those were the fact that this was an “untested, untried product,” poor training from Ex Libris for the staff, a lack of flexibility in handling data migration issues, a mental adjustment from a bibliographic-centered ILS to a network-centered system. The UW Law Library also had to do a double migration, moving its records first from an independent law library system into the UW system, then into the new Ex Libris system. He then shared some of the rewards they would receive when the kinks were worked out of the system: shared cataloguing, shared collection development, potential staff savings, potential cost savings, and potential sharing of electronic resources.

Next, Alena Wolotira spoke from a public services perspective. Her job was to serve as the representative of law library staff and users at meetings. From her perspective, the main challenge was the lack of flexibility of the new system. Specifically, she believes that this system is created more for the general undergraduate user and therefore may not meet the needs of a typical law library user.  She also noted the poor training for staff, but spoke about the closer sense of community among the Pacific Northwest universities that will occur as a result of sharing an ILS.

Finally, Penny Hazelton spoke of the Alliance from a director's point of view. She said one of her biggest challenges was to find a way to explain to faculty and law school administration why this was a difficult time for the law library. She was especially concerned with staffing resources being diverted to create this product and the stress that the migration brings to the law library staff. Her bottom line was that technology systems will likely never be stable because customers constantly build and improve the systems. This is an opportunity to learn new skills and create a project that will bring the Northwest community together and increase potential staff savings.

Despite the challenges that each presenter discussed, the overall sentiment was one of great optimism with a sense that this type of collaboration is the future of libraries and that all challenges will eventually be worked out in the end.

 

Our Own Section of the Copyright Act: Section 108

by Paul Hellyer

In this third installment of VALL’s copyright column, we’ll take a look at Section 108 of the Copyright Act, which covers copying by libraries and archives.

This section made its first appearance in 1976, the last year the Copyright Act was completely overhauled. Section 108 expressly allows libraries to make copies of protected works without the owners’ permission under certain circumstances. Here’s a quick summary of what a library may copy (check the code section for more details):

·         Up to three copies of an unpublished work owned by the library for deposit in another library or for preservation. (Section 108(b)).

·         Up to three copies of a published work to replace copies that are damaged, deteriorating, lost or stolen, or that are in an obsolete format, if authorized new copies can’t be obtained at a fair price. (Section 108(c)).

·         One copy of an article or book excerpt for a patron, including through interlibrary loan, provided that the library has no notice that the use will be for anything other than private study, scholarship or research. (Section 108(d)).

·         One copy of an entire work (such as a book or journal issue) for a patron, provided that a new or used copy can’t be obtained at a fair price and the library has no notice that the use will be for anything other than private study, scholarship or research. (Section 108(e)).

Libraries were already engaging in these activities prior to the 1976 Act, but were doing it under the fair use doctrine. There’s a long history supporting these practices, including the 1973 U.S. Court of Claims case Williams & Wilkins Co. v. United States,[1] which the U.S. Supreme Court affirmed without an opinion.[2] Section 108 was intended to clarify matters, not bring about any major changes in the status quo. It was never clear that Section 108 created any new rights that libraries would not have had under general fair use principles.

It’s important to note that Section 108 doesn’t extinguish libraries’ fair use rights—Section 108(f)(4) expressly reserves library’s fair use rights. So you don’t need to fit all your activities within Section 108 to stay within the law—you may also engage in copying that fits within the fair use section (Section 107). We saw a good example of that in my last copyright column on the HathiTrust case, where a library got away with copying and distribution that clearly had nothing to do with Section 108.

So if Section 108 was designed to clarify the law for us, has it succeeded? Increasingly, the answer seems to be no. Section 108 was never a model of clarity—from the start, it had to be supplemented with nonstatutory guidelines.[3] Over time, as we’ve moved into the digital age, Section 108 is looking even murkier. Several years ago, a distinguished group of librarians and copyright experts, convened by the U.S. Copyright Office and the Library of Congress, issued a very thorough report on how to update Section 108 for the 21^st century,[4] but in Congress, the report fell on deaf ears.

Another issue is that Section 108 has never attracted much litigation. That’s a mixed blessing. While it’s a good thing that publishers haven’t been aggressive in suing libraries over the boundaries of Section 108, it also means we don’t have much guidance from the courts on what Section 108 means. In West’s annotated U.S. Code, Section 108 has a single note of decision—a 1990 district court opinion that’s of little relevance to libraries. KeyCite reports that 36 cases have cited Section 108 since its creation, compared to over 1,300 cases that cite Section 107.

Let’s delve into some of the questions surrounding Section 108.

What counts as a library or archives in the digital age? Section 108 is limited to libraries or archives, but Congress didn’t define those terms for us. Maybe there wasn’t much need for definitions in 1976, but now we have some so-called archives whose collections exist only online. Does something like the Internet Archive (home of the Wayback Machine) qualify for Section 108 protection? It’s a question with no definitive answer. All we can say with certainty is that Section 108 doesn’t offer much that an online archive could make use of. As a practical matter, online archives are better served by the general fair use doctrine.

Can libraries within for-profit institutions participate in Section 108? Section 108 is limited to copying made without any purpose of direct or indirect commercial advantage,[5] but that restriction is directed at the copying itself, not the overall nature of the parent institution. There’s nothing in the statutory text that excludes libraries in for-profit institutions.[6] There is a requirement that the collections of the library be open to the public or available to researchers outside the parent institution, but a library could meet this requirement by making its collections available through interlibrary loan.

Can libraries make digital copies and deliver them electronically under Section 108? When Section 108 was first enacted, libraries were making copies through photocopying and microfilming. When digital copies appeared on the scene, publishers became alarmed, and it’s easy to see why. A digital copy facilitates further copying by users, who can easily forward copies via email or post them on the web. In 1998, Congress amended subsections (b) and (c) (covering copies for preservation and replacement) to expressly allow for digital copies, with the proviso that libraries are not permitted to distribute these digital copies outside the premises of the library. Subsection (d), which covers copies for patrons including ILL, was not affected by this change.[7] So the key question now is whether libraries may fill ILL requests by making digital copies and delivering them electronically. We know that many libraries are already doing so. Subsection (d) never specified what method of copying is permitted, and because a copy is a copy for purposes of copyright law, it would seem that digital copies would be permitted. The problem, as pointed out in the Section 108 Study Group Report, is that subsection (d) specifies only one copy, and making and delivering a digital copy involves creating more than one copy--at least one on the sender’s computer and one on the recipient’s computer.[8] Until there is further clarification from the courts or Congress, the best solution seems to be a compromise—if you have to make more than one copy, make sure you treat the extra copies as temporary and delete them. Even if this doesn’t fit neatly into subsection (d), remember that you always have fair use as a fallback position.

Can libraries use subscription databases for Section 108 purposes? As more and more of our content migrates from print and microfilm sources to subscription databases, we find that Section 108 is bumping up against our license agreements. Can a library fill an ILL request using content from a subscription database? As a default rule, the answer seems to be yes, but subscription databases always come with license agreements that change the default rules. If you try to use your subscription databases for Section 108 purposes, you might be inviting a breach of contract claim. Congress could step in here to say that Section 108 overrides license agreements, but don’t hold your breath.

What fees may libraries charge when making copies under Section 108? Section 108 doesn’t apply to any copying done for direct or indirect commercial advantage, but there’s no further guidance in the text of the section about charging fees. If we limit fees to cover direct expenses such as postage, paper and toner, libraries should be in the clear. But when fees go beyond this, we fall into a gray area. Covering some overhead costs for equipment and personnel seems reasonable, but there are no clear boundaries as to what counts as “overhead.” Spending part of your ILL revenue on your acquisitions budget would be an example of something that’s out of bounds, even if you’re at a non-profit institution. Remember that it doesn’t matter whether the parent institution is for-profit or non-profit, but rather whether the copying itself is for “direct or indirect commercial advantage.” Being part of a non-profit institution doesn’t give you carte blanche to charge whatever fees you like.

As a reminder, if you have questions about copyright law that you would like to see addressed in this column, please send them to me at phellyer@wm.edu.

---

[1] 487 F.2d 1345.

[2] 420 U.S. 376 (1975).

[3] Final Report of the National Commission on New Technological Uses Of Copyrighted Works (1979), more commonly known as the CONTU Guidelines.

[4] Section 108 Study Group Report (2008), available at http://www.section108.gov/docs/Sec108StudyGroupReport.pdf

[5] 17 U.S.C. § 108(a)(1).

[6] See also H.R. Rep. No. 94-1733 (Conf.), at 73-74 (1976).

[7] Pub.L. 105-304, Title IV, § 404, Oct. 28, 1998, 112 Stat. 2889.

[8] Section 108 Study Group Report, supra note 4, at 100.