Vol. 2012, Issue 10
A Look Ahead
Supreme Court Special Edition
SCOTUS Hears Textbook
Despite the severe weather brought on by Hurricane Sandy,
the Supreme Court heard oral arguments in Kirtsaeng
v. John Wiley & Sons, Inc. on Monday, October 29. At issue in the case
is the first
sale doctrine, a crucial copyright limitation that allows owners to resell,
lend out, or give away copyrighted goods without interference and which is fundamental
to the ability of libraries to operate. The case originated when a Thai
graduate student studying in the U.S., Supap Kirtsaeng, resold publisher Wiley
& Son’s copyrighted textbooks online after relatives bought nearly
identical, cheaper versions abroad. In
July, AALL signed on to amicus
brief in support of Kirtsaeng.
This case centers on the meaning of the phrase “lawfully
made under this title” in Section 109(a) of the Copyright Act, specifically
whether “lawfully made under this title” applies to content manufactured
outside of the United States. Much of Monday’s argument focused on the “parade
of horribles,” theoretical problems that might follow a ruling in favor of one
side or the other. Justice Stephen Breyer posed a series of hypothetical
questions, including whether he was permitted to buy a book abroad and give it
to his wife, resell a Toyota manufactured abroad, or whether “libraries with
three hundred million books bought from foreign publishers that they might
sell, resell or use” could be liable for lending foreign-made books.
In late October, the AALL Executive Committee approved a
time-sensitive request from the Copyright Committee for AALL to join the Owners’ Rights Initiative (ORI),
a diverse coalition of retailers, libraries, educators, Internet companies and
associations that have partnered to protect ownership and lending rights of
businesses and libraries. ORI released the following statement:
The Owners’ Rights Initiative hopes
that the Supreme Court will take this opportunity to defend owners’ rights and
clarify that if you buy something, you own it. We believe when you purchase
something you should have the right to sell it, lend it, or donate it,
regardless of whether that good was made in the US or elsewhere. If the Court
rules in favor of Wiley, libraries may be unable to lend books, individuals
could be restricted from donating items to charities, and businesses and
consumers could be prevented from selling a variety of products, from
electronics, to books, to jewelry, to used cars. ORI looks forward to the
Court’s decision in 2013 and regardless of the outcome, we will continue to be a
champion for owners’ rights in America.
Transcript of Monday’s oral argument is available from the
Supreme Court here.
For background and further analysis on the impact on libraries, see our
interview with Copyright Committee chair Tracy Thompson-Przylucki below and check out the
Brief written by George H. Pike, former Copyright Committee chair, and Amy
Ash, member of the committee.
Copyright Today: Excerpts
from an Interview with Tracy Thompson-Przylucki
This is the first in a series of interviews with the 2012-2013 chairs of AALL’s three policy committees: the Copyright Committee, Digital Access to Legal Information Committee, and Government Relations Committee.
Tracy Thompson-Przylucki is the Executive Director of the New England Law Library Consortium (NELLCO) and Chair of the Copyright Committee. The Government Relations Office recently sent Tracy a number of questions about the status of copyright today. Below are excerpts from her response. Our full interview is
The courts have recently handled several
cases affecting copyright and mass digitization projects, including Authors Guild, Inc v.
Hathi Trust and Authors Guild, Inc v. Google Inc. What is the impact of
these cases on law libraries?
evolution from a print to a digital information world has forced us all to
rethink the application of copyright laws to the business of libraries. What
may once have seemed like settled law is no longer sufficient to address the
rights and interests of information stakeholders in a wired, global
marketplace. Freeing information from the limits of the bound volume, and
access from the limits of brick and mortar has led to a series of copyright
challenges in the courts over the past several years.
decisions coming out of these courts suggest a trend that is generally
favorable to libraries’ interests. The two you mention, as well as the Georgia
State case and Kirtsaeng (see below), all have copyright implications that
impact libraries. Hathi and Georgia State, both decided within the last six
months, dealt with fair use exception claims under section 107 of the
U.S. Copyright Act.…The decisions in these two cases, both of which are subject
to appeal, favor a more expansive definition of fair use and provide guidance
to libraries to help shape future digitization and distribution activities.
The Supreme Court heard arguments in Kirtsaeng
v. John Wiley & Sons, Inc. on October 29. What is the potential impact of Kirtsaeng?
the court decides that First Sale applies only to goods manufactured
domestically, libraries would be required to track the origin of each and every
item that they lend, sell or otherwise dispose of, or risk copyright
infringement claims. Even if libraries had the resources to comply with this
sort of requirement, the origin of manufacture of any item is not necessarily
readily discoverable. The impact on library work flows, gift management, and
acquisitions would be enormous. The impact on library users’ ability to gain
access to information could be severely curtailed. The efficiency and utility
of libraries could be undermined.
Kirtsaeng has the attention of the library world, its impact is actually much
further reaching. First Sale applies not only to those things we typically
think of as copyrighted materials (books, articles, etc.) but also to almost
all goods in the consumer sphere.… If Wiley were to prevail in Kirtsaeng the
whole downstream disposition of consumer goods, not just library materials,
comes under fire.
Are there other copyright issues law
librarians should be watching?
addition to all of these cases that have bubbled up on the copyright landscape,
the Copyright Office has begun exploring a more active approach to the orphan
works problem. Orphan works are those published materials still in copyright
for which no rights holder can be located. Earlier this month, the Copyright
Office issued a notice of inquiry
inviting comment by the public. According to the notice, they are “interested
in what has changed in the legal and business environments during the past few
years that might be relevant to a resolution of the problem and what additional
legislative, regulatory, or voluntary solutions deserve deliberation at this
time.” I encourage AALL members from all library types to seize this advocacy
moment and comment. The special expertise of lawyer librarians can really help
to inform the efforts of the Copyright Office with respect to orphan works. The
comment period is open through Jan. 4, 2013.
read the rest of our interview with Tracy, including a discussion of the Google
Books decision, initiatives of the Copyright Committee, and recommended copyright
resources, visit our Washington Blawg.
FISA and the Right to
The Supreme Court heard oral arguments in Clapper
v. Amnesty International USA on Tuesday. At issue in the case is a
challenge to the Foreign Intelligence
Surveillance Act (FISA), the federal law that provides for large-scale
electronic surveillance of international phone calls and emails. The FISA Amendments Act of 2008 dramatically
expanded the government's authority to monitor Americans' international
communications, store them indefinitely in databases, and share them with other
agencies with few restrictions, and was reauthorized by the House in September
reports that though the Justices appeared troubled by several aspects of the
government’s interpretation, it is not immediately clear which way the Court
will rule. Meanwhile, the Senate is expected to consider its version of the
bill (S. 3276) in the lame duck session. If approved, the FAA Sunsets Extension Act of 2012 will extend the National Security Agency's controversial
warrantless wiretapping program for another five years.
Depositories! AALL FDLP Task Force Seeks Submissions
With the Government Printing Office, Depository Library
Council, and much of the library community focused on the future of the Federal
Depository Library Program (FDLP), it is crucial that law librarians make their
voices heard. The AALL FDLP
Task Force is collecting model language from depository library mission
statements and collection development policies. If your library’s policy
language reflects your depository status, please consider submitting the
language to any member of the
Chaired by Sally Holterhoff, the FDLP Task Force seeks to
support law library participation in the FDLP by highlighting the benefits of
the program, identifying changes to the program that will enable law libraries
to continue to participate, and working to facilitate a broader role for law
librarians in the national conversation on the FDLP.
AALL in the States
Support Georgia Archives
Law Libraries Association (ALLA) sent a letter in support of the Georgia
Archives, the subject of an intense budget debate last month. Georgia Governor
Nathan Deal recently announced that the Georgia Archives will not permanently
close November 1st as it had been slated to following a decision by Secretary
of State Brian Kemp in the face of severe agency budget cuts. Governor Deal
restored $125,000 to keep the archives running as normal, though two of ten
staff people will be laid off.
Sent to Governor
Deal, Secretary Kemp, and Georgia House Speaker David Ralston, the ALLA letter commends
the Governor for upholding his promise to keep the Archives open to the public
and urges support for full funding for the Archives in the upcoming legislative
SNELLA at Work on
Jon Stock, Government Relations chair of the Southern New
England Law Libraries Association (SNELLA), recently shared this update on the
chapter’s work with the Connecticut Bar Association:
The Connecticut Bar Association Law
Librarians Section has been working diligently on matters related to the Uniform Electronic Legal Material Act
(UELMA) since its first meeting in July. Our Executive Committee, early on,
unanimously approved a recommendation that UELMA be passed in the 2013
Connecticut General Assembly session. In August, the CBA LLS membership
approved this recommendation by majority vote. Documentation supporting our
position was then prepared for study by the CBA Legislative Policy & Review
Committee. At its October 4 meeting, LPRC recommended this position for
consideration by the House of Delegates. The CBA House of Delegates
unanimously adopted the LLS position supporting 2013 UELMA passage on October
On November 27, SNELLA is jointly sponsoring a program on
UELMA with the Connecticut Bar Association Law Librarians Section. Titled “Official
Documents on the Web: Are They For Real?” the program with feature three speakers:
Connecticut State Librarian Kendall Wiggin, AALL Immediate Past President Darcy
Kirk, and AALL Director of Government Relations Emily Feltren. For more
information, see page 5 of SNELLA’S Obiter Dicta newsletter.
Roundup and Review
- GPO, the Office of the Federal Register and the
National Archives and Records Administration have released an upgraded
Electronic Code of Federal Regulations (e-CFR) website. The old e-CFR
site has been shutdown and will redirect users to the new page.
- Videos from the Law Via
the Internet Conference at Cornell Law School are now available.
- The deadline for submitting FDLP Library Forecasts, FLDP State Forecasts, and State Focused Action Plans to GPO has been extended to November 30, 2012. If you haven't already submitted your forecast or plan, please do so now!