Washington E-Bulletin - November 2012

Vol. 2012, Issue 10

A Look Ahead
Supreme Court Special Edition

SCOTUS Hears Textbook Copyright Case
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 new Issue 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.

The 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. 

The 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?

If 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.

While 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?

In 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.

To 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 Wiretap
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 2012 (H.R. 5949).

SCOTUSblog 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.

Act Now

Calling All 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 task force.

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

Atlanta Libraries Support Georgia Archives
The Atlanta 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 session.

SNELLA at Work on UELMA
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 15, 2012.

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.

• Have you read our recap of the 2012 DLC Meeting and Conference? Conference proceedings 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!

• Check out the new Law Library of Congress homepage. The new site features prominent links to Congress.gov and the Guide to Law Online.