Remembering Teresa Parker-Bellamy

by Evelyn Campbell

 

It is with deep regret that we note the passing of longtime VALL member, Teresa Parker-Bellamy, on January 7, 2015.  Teresa was head of bibliographic services at Regent University Law Library from 1996 - 2013. Before that she worked at Old Dominion University Library.

It was at ODU that I first crossed paths with Teresa - she was coming to the end of her library science program at the Catholic University of America and I was just starting mine in 1993.

Teresa was kind and helpful and encouraged me to apply for the CUA assistant position at ODU, something I would normally not have done. I had a fulltime job, a toddler at home and was just starting a second Master's, and did not want anymore on my plate. But I listened to Teresa, and it worked out beautifully.

That was the essence of Teresa - kind, helpful, and encouraging, never ever complaining about the burdens she had to carry.

Those of us who had the privilege of knowing Teresa will never forget her and will miss her.

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.