7 ms·

The U.S. Copyright Office requires libraries to lie about fair use rights

229 points by colinprince 3y ago

brightlancer 3y ago
The legal language seems correct, though it could be misleading. This is why we don't let lawyers say grace before dinner.
theknocker 3y ago
[dead]
gridspy 3y ago
The difference is subtle > One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” "[I]s not to be used for any purpose other than" sounds very restrictive. However the language from the statute is the opposite > The fair use of a copyrighted work, ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. This sounds like the opposite. A list of times when fair use is OK. The article could benefit from further discussion of this subtle distinction, as a librarian I think the writer assumes we already know exactly why this message is incorrect. From my interpretation the message seems to "remove" several of the examples in the statute from the message, for instance news reporting. I think that is the concern here, along with the mandate that libraries then promulgate this subtle misinformation.
paulddraper 3y ago
This requirement comes not from the copyright office, but straight from the 17 USC 108: "(e) The rights of reproduction and distribution...made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if- "(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and "(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation." The author's issue is primarily with the inconsistency of the law itself.
bee_rider 3y ago
It seems like basic CYA text for the libraries? > Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,” that user may be liable for copyright infringement. Emphasis mine. Of course it is possible to commit some sort of copyright infringement using a document copied in a library. You are being reminded of the fact that you could use this service provided by the library to commit a some copyright violation, the fact that the library helped you doesn’t magically change the law.
PraetorianGourd 3y ago
It seems to me that there are a few caveats that may explain this. The first is that the blurb covers _furnishing_ the archival/photocopy, not creating the copy itself. This is more akin to whether I can give a friend a copy of a book I purchased, as opposed to the act of photocopying it myself. That is to say, it is okay to provide a photocopied version of a copyrighted document, but only under certain usage circumstances as defined by fair use doctrine. The other aspect may simply be laziness. Perhaps it could be read as: > [institutions such as] libraries and archives are authorized to furnish a photocopy or other reproduction Either way, I think "requires libraries to lie" is a bit sensationalist.
mrbabbage 3y ago
I realize the headline is designed to be attention-grabbing, but "lie" is pretty strong given the warning's actual text. Could the warning be better phrased? Almost certainly—it's a four-sentence digest, designed for a lay audience, of an incredibly complicated area of law (copyright fair use). But the warning itself is completely accurate: There are conditions where reproducing a copyrighted work (which otherwise infringe's the owner's exclusive right of reproduction) is acceptable. And "one of these specified conditions" (quoting from the warning) is for scholarship. It's not the only such condition! To me, this feels like the author is making a mountain out of a molehill.
bombcar 3y ago
It sounds to me like this wording is left over from previous copyright regimes/laws, where libraries were explicitly allowed to do things "against the law" for "private study, scholarship, or research" - all of which has been supplanted by fair use and Xerox. (I'm thinking things like asking the librarian to hand-copy down pages from a book in the 1800s or similar.)
crazygringo 3y ago
The headline/interpretation seems incorrect. Copying for "private study, scholarship, or research" specifically by libraries is permitted by §108 [1], while fair use is permitted by §107 [2]. These are separate concepts. Libraries are not intended for photocopying of materials for all possible fair use cases; they're only intended for "private study, scholarship, or research" purposes. So the sign correctly indicates what's allowed per library policy; it also correctly indicates you have additional rights per fair use policy and warns not to go beyond those. (A good example is that a teacher can use a private/school photocopier to make 30 copies of material for classroom use according to fair use; but you're not allowed to use the library photocopier to make more than 1 copy of anything.) [1] https://www.law.cornell.edu/uscode/text/17/108 https://www.law.cornell.edu/uscode/text/17/108 [2] https://www.law.cornell.edu/uscode/text/17/107 https://www.law.cornell.edu/uscode/text/17/107
- londons_explore 3y ago
  But the notice attached to any library-produced copy should therefore presumably refer to the rights of the reader (ie. the member of the public), rather than the library.
  - kayodelycaon 3y ago
    It's basically a disclaimer limiting how you can use the library to make copies. You still have fair use, but the library won't copy documents for you outside of their own limitations.
  - cvoss 3y ago
    The user is welcome to investigate their own rights on their own time. The government has no interest in that here. The government has a different interest. The library is furnishing a powerful tool to users: the ability to make copies readily. The government's ability to police or regulate this tool so that it complies with copyright law is extremely limited. The government's options are to ban the tool outright, or to permit the tool while impressing a scary warning upon the user, hoping law-abiders will exercise self-control. "If you do something potentially illegal, then you are potentially liable for something illegal." It's a tautological warning, but it still has an effect. And the way they can force the library to communicate the scary warning to the end user is by conditioning the library's liability on the posting of the warning.
cvoss 3y ago
The author has misread the statute. The notice and the statutory language from which it derives (Title 17, sec. 108 (d) and (e)) are about the conditions under which the library is released from liability for copyright violations. No statement is made about conditions under which the user is released from copyright liability. Each paragraph in 108 lays out various situations under which libraries and archives are permitted to furnish copies without liability (without this, no library would dare). Paragraphs (d) and (e) are the relevant ones (dealing with one component of a larger collection or to an entire work if necessary, respectively). Clause (1) of each paragraph describes a situation where the copy is to become property of the user making the request (so, I walk up to a copy machine, make a copy, and take possession of the copy). In this situation, the library is released from liability if two conditions hold: a) "the library ... has had no notice that the copy ... would be used for any purpose other than private study, scholarship, or research". (Note that this is the source of the quote in the posted notice.) Naturally, that condition holds for self-service copy machines. b) "the library ... displays prominently ... a warning of copyright...". Said warning just recaps 108 (d) and (e). I do not find any lie here.
- torstenvl 3y ago
  Agreed. That is my read of the statute as well (I don't practice in this area, however, so I'll defer to an IP lawyer if one chimes in).
yieldcrv 3y ago
Friendly reminder: A government agency isn't a better authority on the law than your own lawyers are, if you’re rich enough to access the courts. The agencies, including the white house, offer one interpretation of the law, and they don't know your interpretation. Make it expensive for them to disagree with you and they will likely back off. But also be prepared to continue that fight in court in case they didnt back off. They theoretically have unlimited resources but are frugal.
- firstlink 3y ago
  > but are frugal That is a potentially grave mistake to make. They are in no way frugal (the very concept of being frugal with an unlimited faucet of "other people's money" is truly ridiculous). If they forbear to go to trial and/or appeal adverse rulings, it is only because they strongly prefer never to suffer adverse precedent. They would rather lose the same case a thousand times, than have precedent which restores the rights of ten thousand all at once, let alone 300 million. In a way it's quite the opposite of frugality.
  - yieldcrv 3y ago
    its a calculated risk, but you better be good at math.
ftxbro 3y ago
In general what if there are laws that contradict so by definition you are breaking one of them? Does this create a purge-like situation where no law applies and you can do anything at will even unrestrained riotous rampage through the city.
fsckboy 3y ago
> not to be “used for any purpose other than ... research" If I go into my library and stand there and pretend to photocopy things, but really I'm looking around, casing the joint, so I can come back and burgle the place, that's research, isn't it?
teus666666 3y ago
[flagged]
clbrmbr 3y ago
Couldn’t you add a Monty Pythonesque notice below the required verbatim text to explain fair use rights? Perhaps even a direct quote from the statue?
RecycledEle 3y ago
I do not see the power to lie in Article 1, Section 8 of the US Constitution. Therefore, Congress does not have the power to force these signs on us.

229 points by colinprince 3y ago

The legal language seems correct, though it could be misleading. This is why we don't let lawyers say grace before dinner.

theknocker 3y ago

[dead]

gridspy 3y ago

The difference is subtle > One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” "[I]s not to be used for any purpose other than" sounds very restrictive. However the language from the statute is the opposite > The fair use of a copyrighted work, ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. This sounds like the opposite. A list of times when fair use is OK. The article could benefit from further discussion of this subtle distinction, as a librarian I think the writer assumes we already know exactly why this message is incorrect. From my interpretation the message seems to "remove" several of the examples in the statute from the message, for instance news reporting. I think that is the concern here, along with the mandate that libraries then promulgate this subtle misinformation.

paulddraper 3y ago

This requirement comes not from the copyright office, but straight from the 17 USC 108: "(e) The rights of reproduction and distribution...made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if- "(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and "(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation." The author's issue is primarily with the inconsistency of the law itself.

bee_rider 3y ago

It seems like basic CYA text for the libraries? > Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,” that user may be liable for copyright infringement. Emphasis mine. Of course it is possible to commit some sort of copyright infringement using a document copied in a library. You are being reminded of the fact that you could use this service provided by the library to commit a some copyright violation, the fact that the library helped you doesn’t magically change the law.

PraetorianGourd 3y ago

It seems to me that there are a few caveats that may explain this. The first is that the blurb covers _furnishing_ the archival/photocopy, not creating the copy itself. This is more akin to whether I can give a friend a copy of a book I purchased, as opposed to the act of photocopying it myself. That is to say, it is okay to provide a photocopied version of a copyrighted document, but only under certain usage circumstances as defined by fair use doctrine. The other aspect may simply be laziness. Perhaps it could be read as: > [institutions such as] libraries and archives are authorized to furnish a photocopy or other reproduction Either way, I think "requires libraries to lie" is a bit sensationalist.

mrbabbage 3y ago

I realize the headline is designed to be attention-grabbing, but "lie" is pretty strong given the warning's actual text. Could the warning be better phrased? Almost certainly—it's a four-sentence digest, designed for a lay audience, of an incredibly complicated area of law (copyright fair use). But the warning itself is completely accurate: There are conditions where reproducing a copyrighted work (which otherwise infringe's the owner's exclusive right of reproduction) is acceptable. And "one of these specified conditions" (quoting from the warning) is for scholarship. It's not the only such condition! To me, this feels like the author is making a mountain out of a molehill.

bombcar 3y ago

It sounds to me like this wording is left over from previous copyright regimes/laws, where libraries were explicitly allowed to do things "against the law" for "private study, scholarship, or research" - all of which has been supplanted by fair use and Xerox. (I'm thinking things like asking the librarian to hand-copy down pages from a book in the 1800s or similar.)

crazygringo 3y ago

The headline/interpretation seems incorrect. Copying for "private study, scholarship, or research" specifically by libraries is permitted by §108 [1], while fair use is permitted by §107 [2]. These are separate concepts. Libraries are not intended for photocopying of materials for all possible fair use cases; they're only intended for "private study, scholarship, or research" purposes. So the sign correctly indicates what's allowed per library policy; it also correctly indicates you have additional rights per fair use policy and warns not to go beyond those. (A good example is that a teacher can use a private/school photocopier to make 30 copies of material for classroom use according to fair use; but you're not allowed to use the library photocopier to make more than 1 copy of anything.) [1] https://www.law.cornell.edu/uscode/text/17/108 https://www.law.cornell.edu/uscode/text/17/108 [2] https://www.law.cornell.edu/uscode/text/17/107 https://www.law.cornell.edu/uscode/text/17/107

londons_explore 3y ago
But the notice attached to any library-produced copy should therefore presumably refer to the rights of the reader (ie. the member of the public), rather than the library.
- kayodelycaon 3y ago
  It's basically a disclaimer limiting how you can use the library to make copies. You still have fair use, but the library won't copy documents for you outside of their own limitations.
- cvoss 3y ago
  The user is welcome to investigate their own rights on their own time. The government has no interest in that here. The government has a different interest. The library is furnishing a powerful tool to users: the ability to make copies readily. The government's ability to police or regulate this tool so that it complies with copyright law is extremely limited. The government's options are to ban the tool outright, or to permit the tool while impressing a scary warning upon the user, hoping law-abiders will exercise self-control. "If you do something potentially illegal, then you are potentially liable for something illegal." It's a tautological warning, but it still has an effect. And the way they can force the library to communicate the scary warning to the end user is by conditioning the library's liability on the posting of the warning.

cvoss 3y ago

The author has misread the statute. The notice and the statutory language from which it derives (Title 17, sec. 108 (d) and (e)) are about the conditions under which the library is released from liability for copyright violations. No statement is made about conditions under which the user is released from copyright liability. Each paragraph in 108 lays out various situations under which libraries and archives are permitted to furnish copies without liability (without this, no library would dare). Paragraphs (d) and (e) are the relevant ones (dealing with one component of a larger collection or to an entire work if necessary, respectively). Clause (1) of each paragraph describes a situation where the copy is to become property of the user making the request (so, I walk up to a copy machine, make a copy, and take possession of the copy). In this situation, the library is released from liability if two conditions hold: a) "the library ... has had no notice that the copy ... would be used for any purpose other than private study, scholarship, or research". (Note that this is the source of the quote in the posted notice.) Naturally, that condition holds for self-service copy machines. b) "the library ... displays prominently ... a warning of copyright...". Said warning just recaps 108 (d) and (e). I do not find any lie here.

torstenvl 3y ago
Agreed. That is my read of the statute as well (I don't practice in this area, however, so I'll defer to an IP lawyer if one chimes in).

yieldcrv 3y ago

Friendly reminder: A government agency isn't a better authority on the law than your own lawyers are, if you’re rich enough to access the courts. The agencies, including the white house, offer one interpretation of the law, and they don't know your interpretation. Make it expensive for them to disagree with you and they will likely back off. But also be prepared to continue that fight in court in case they didnt back off. They theoretically have unlimited resources but are frugal.

firstlink 3y ago
> but are frugal That is a potentially grave mistake to make. They are in no way frugal (the very concept of being frugal with an unlimited faucet of "other people's money" is truly ridiculous). If they forbear to go to trial and/or appeal adverse rulings, it is only because they strongly prefer never to suffer adverse precedent. They would rather lose the same case a thousand times, than have precedent which restores the rights of ten thousand all at once, let alone 300 million. In a way it's quite the opposite of frugality.
- yieldcrv 3y ago
  its a calculated risk, but you better be good at math.

ftxbro 3y ago

In general what if there are laws that contradict so by definition you are breaking one of them? Does this create a purge-like situation where no law applies and you can do anything at will even unrestrained riotous rampage through the city.

fsckboy 3y ago

> not to be “used for any purpose other than ... research" If I go into my library and stand there and pretend to photocopy things, but really I'm looking around, casing the joint, so I can come back and burgle the place, that's research, isn't it?

teus666666 3y ago

[flagged]

clbrmbr 3y ago

Couldn’t you add a Monty Pythonesque notice below the required verbatim text to explain fair use rights? Perhaps even a direct quote from the statue?

RecycledEle 3y ago

I do not see the power to lie in Article 1, Section 8 of the US Constitution. Therefore, Congress does not have the power to force these signs on us.