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.

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[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.



Down Memory Lane with Terry Long

by Suzanne Corriell

 

 

 
As E. Terry Long celebrates 40 years as an employee of the Commonwealth this October, she also celebrates 30 years with VALL. As a Librarian at the Virginia State Law Library, Terry was one of the founding members of VALL in 1984, helping it develop from a casual network of librarians who would gather over lunch into an official organization, and then into a chapter of AALL in 1998.

One of her most vivid memories of VALL was being in charge of local arrangements with the joint VALL/SEAALL meeting held in Richmond in 1995; at the time, she was serving as Vice-President/President-Elect of VALL (and de facto Chair of the Program Committee). Though she had prior experience in volunteering with the Junior League, serving on the board and chairing committees, working with local arrangements for the SEAALL meeting and conference was an incredibly intense volunteer role with a professional organization – and she had a good time! “I have a deep appreciation for the professional staff at AALL – putting on a meeting of that size is a huge undertaking. A lot goes into it.”

VALL has played a strong role in Terry’s professional development, helping her network with a variety of people; and in our profession,people are of immeasurable value. “We all benefit from knowing more about each other and helping each other out. Helping people, that’s what librarians are all about. I’m not a nurse because I can’t stand blood, but librarianship is a helping profession. Just hopefully not in a bloody situation.” 

To her, the secret to VALL’s success – in addition to inexpensive dues - is getting peopleinvolved in the organization. She suggests that small groups of members get together a few times a year in their own regions, harkening back to VALL’s roots. “VALL is a richer organization with a varied,active membership. Everyone should participate – it enriches the organization.”