The document discusses several key issues relating to ebooks and libraries, including copyright law, accessibility requirements, privacy concerns, and ebook licensing models. It provides an overview of the laws around preservation, interlibrary loans, and the concept of "first sale" in both print and digital formats. The document also examines recent court cases on fair use and the rights of libraries to provide accessible ebook services to all patrons. Finally, it surveys different ebook platform vendors and licensing terms that libraries should consider.

1. Copyright, Licensing,
and the Law of Ebooks
Presented by
Mary Minow, J.D., A.M.L.S.
LibraryLaw.com

2. Poll
Our library knows what e-lending rights it has,
by law, before it signs a contract
YES
NO

3. Copyright, Licensing
and the Law of Ebooks
Library Ebook Law
Copyright
Accessibility, Privacy, Free Speech
Ebook platform vendors and
emerging library-based projects
Licenses

4. Legal Disclaimer
• Legal information
• Not legal advice!

5. Library Ebook Law: Copyright
www.copyright.gov

6. Library Ebook Law:
UNDERLYING LICENSES
www.copyright.gov

7. Library Ebook Law:
Specific Allowances under Copyright
Preservation
Interlibrary Loan
www.copyright.gov
First Sale

8. Preservation
Scanning your own books
Allows 3 digital copies
Replace damaged published
works unavailable at fair price
17 U.S.C. Sect. 108(c)

9. Interlibrary Loan
May always LEND print book
First Sale:
Permission not required
to lend or sell particular copy*
17 U.S.C. Sect. 109
*lawfully made under this title
books as objects
no copying involved

10. Interlibrary Loan
Copy Entire BOOK
Sect. 108
Libraries
May also COPY whole book
if reasonable investigation
shows cannot buy at fair price
e.g. out of print
… but must become property of
user for private study
17 U.S.C. Sect. 108(e), (g) and (i)

11. Interlibrary Loan and ebooks
What kind of copy is it?
Replicator or Transporter?
End up with TWO COPIES End up with ONE COPY

12. FIRST First Sale Court Case
Doesn’t Matter: NO COPYING
Redigi - used mp3 marketplace
Sued by Capitol records
So far, mainly a win for Capitol
records
new copy made,
even if old was
deleted
17 U.S.C. Sect. 109
First sale does not allow copying at
all

13. Digital First Sale?
Outdated law.
Rights triggered when
copy is made, even
if original is deleted.

14. Digital First Sale?
Outdated law.
Rights triggered when
copy is made, even
if original is deleted.

15. Digital First Sale? No.
Outdated law.
Rights triggered when
copy is made, even
if original is deleted.*
*nonprofit library might win FAIR USE argument,
different from for-profit company

16. Redigi update
2014
Redigi 2.0 uses cloud
No “copying” from user computer
Sept 2, 2014 Court order denying dismissal
against Redigi executives
Capitol Records, LLC v. ReDigi Inc., No. 12 Civ. 95 (RJS), 2013 WL 1286134 (S.D.N.Y. Mar. 30, 2013)
RSS feed at http://dockets.justia.com/docket/new-york/nysdce/1:2012cv00095/390216/

17. First Sale Legislative Hearing
Expand to allow copy
and delete?
Narrow further?
http://judiciary.house.gov/index.cfm/hearings
June 2, 2014

18. First Sale opponents
point to Supreme Court 2013
Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351 (2013); See also First Sale Fast Facts for
Libraries / Library Copyright Alliance http://www.librarycopyrightalliance.org/bm~doc/lca-tp-firstsale18jan13.
pdf
Are copies printed abroad subject to First Sale?
Yes. First Sale WIN.
Library Copyright Alliance cited in opinion.

19. Fair Use on the rise
Google Books case
authors sue for-profit company
Hathi Trust
authors sue research libraries

20. Authors Guild v. Google Books
20 million book scans from libraries
Publishers settled; authors still suing
District Court: FAIR USE
“snippets” are “indispensable research tool”
Now on appeal
Not at issue:
2 million public domain books
2 million previews with publisher agreements

21. Authors Guild v. HathiTrust
APPELLATE COURT:
FAIR USE
Full text search
Print disabled users
text mining
Authors Guild, Inc. v. HathiTrust,
755 F.3d 87 (2d Cir. 2014).

22. Fair Use Legislative Hearing
http://judiciary.house.gov/index.cfm/hearings
January 28, 2014

23. Backlist: Do Authors Retain Ebook Rights?
Depends on their contract
No. Julie of the Wolves (1973) Jean Craighead George
Contract gave HarperCollins exclusive rights to e-pubs
HarperCollins v. Open Road (March 2014)
Yes. William Styron, Kurt Vonnegut, Robert B. Parker
Contract language did not include ebook rights
Rosetta vs. Random House (2002)
BUT TERMINATION RIGHTS TRUMP CONTRACT !
35 years after contract signed, authors may get
copyright back, some hoops to go through – 5 yr window
Authors Alliance working on “termination” tool (2014)
www.authorsalliance.org
http://judiciary.house.gov/index.cfm/h
earings
July 15, 2014

24. Library Ebook Law
Disability, Privacy, First Amendment
DISABILITY ACCESS
Brown v. Free Library of
Philadelphia
Nook Lending Program
Federal funds
Settlement: purchase only fully
accessible mainstream devices
"Fully accessible”
a blind individual needs to
access same information,
same transactions, and
same services
as a non-disabled individual
with substantially equivalent
ease of use
SETTLEMENT Oct 23, 2012
http://docs.justia.com/cases/federal/district-courts/pennsylvania/paedce/2:2012cv02373/461996/14/
See also Dear Colleague Letter http://www2.ed.gov/about/offices/list/ocr/docs/dcl-ebook-faq-201105.html

25. Similar Settlement: Sacramento Public Library
No additional inaccessible content
• Provide text-to-speech and access to menus and controls
• May require users to attest eligibility
• May not require doctor’s note
[See also 28 C.F.R. Sect. 35.138(h)(2)]
http://www.ada.gov/sacramento_ca_settle.htm August 28, 2012
See also IMLS Advisory: E-book Reader Lending Programs
http://pld.dpi.wi.gov/files/pld/pdf/ebook_guidance.pdf

26. http://inova.snv.jussieu.fr/ifla-lpd/colloques/colloques/83_index_en.html

27. Classic Accessibility Checks Fail eReaders Mike Wald, E.A. Draffan and Neil Rogers (University of Southampton)
http://inova.snv.jussieu.fr/ifla-lpd/colloques/colloques/83_programme_en.html August 2014

28. 28
Copyright
rights
Disability
rights
HathiTrust
case
https://nfb.org/national-federation-blind-applauds-landmark-court-ruling

29. Poll
Our library patrons are sometimes required to create
nonlibrary “user accounts” to use library services
YES
NO

30. Privacy – State Laws
30

31. Library and reader
privacy laws
Check with local
counsel
Consent? Choice?
Transparency?
Professional ethics
blog.librarylaw.com/

32. Free Speech and
Withdrawing Ebooks
Removing books based on viewpoint can
trigger First Amendment lawsuit
Use same criteria for weeding as print
Ebook trends: self-published, very small
presses, community “maker” movement

33. Ebook platform vendors and
emerging library-based projects
http://readersfirst.org/ReadersFirst-Guide--Library-E-Book-Vendors.pdf

34. Licensing and Pricing Models
www.culc.ca/

35. Oyster, Scribd, Kindle Unlimited

36. Models and Licensing Terms
1. Replicating print model
2. Inclusion of all titles
3. Right to transfer content
4. Right to lend indefinitely
5. Accessibility
6. Integration with catalog
7. Single user
8. Limited number of loans
9. Variable pricing
10. Delayed sales with discounts
11. Premium for immediate
access to delayed titles
12. In library checkout
13. Restrictions on consortia/ILL
14. Enhanced discovery
15. Sales channel (buy link)
http://www.districtdispatch.org/wp-content/uploads/2013/01/Ebook_Scorecard.pdf

37. International
http://www.ifla.org/node/8851
UK An Independent
Review of E-Lending in
Public Libraries in
England 2012
EBLIDA Right to eRead
Campaign calls on EU
Commission for a clear
copyright framework
allowing libraries to
acquire and lend
ebooks with adequate
remuneration to
authors and rights
holders

38. http://www.infodocket.com/2013/01/30/ifla-releases-thinkpiece-on-libraries-e-lending-
and-the-future-of-public-access-to-digital-content-27-pages/

39. libraryebookprojects.blogspot.com

40. No Shelf Required
http://www.libraries.wright.edu/noshelfrequired

41. Licenses

42. Licenses
understand
default copyright
rights before
signing

43. Wealth of experience in
e-content licensing
http://www.niso.org/news/events/2014/webinars/licensing

44. International (including U.S.)
http://www.eblida.org/satellite-meetings/copyright-and-beyond-libraries-in-the-public-sphere/programme.html

46. Termination Clause
Kansas State Library – old Overdrive contract
Newer version does not allow content transfer
http://www.scribd.com/LibraryJournal/d/52439233-OverDrive-s-current-contract-with-Kansas-State-Library

47. Nondisclosure Clause
Preferred Practices
A. Non-disclosure language
should not be required for
any licensing agreement,
particularly language that
would preclude library
consortia from sharing
pricing and other significant
terms and conditions with
other consortia.
7.1 The terms of this
Agreement are confidential;
however xxx reserves the right
to use the name of Library for
publicity purposes.
May conflict
with sunshine
ordinances
International Coalition of Library Consortia 2004 Statement on preferred practices for selection and
purchase of electronic information
http://icolc.net/statement/statement-current-perspective-and-preferred-practices-selection-and-purchase-electronic
See also Association of Research Libraries 2009 – ARL Encourages members to refrain from signing
nondisclosure or confidentiality clauses http://www.arl.org/news/pr/nondisclosure-5june09.shtml

48. Privacy Clause
Any such patron information shall be protected
to an extent equal to or greater than that
imposed on the library by a state privacy statute,
other laws, or library policy under which the
licensee-library operates.
See other samples in Tomas Lipinski, The Librarian’s Legal Companion
for Licensing Information Resources and Services (ALA: 2012) p.659

49. ALA Store
http://www.alastore.ala.org/
Basic contract law
Licensing glossary
Four common library licenses
deconstructed
Twenty sample key clauses
126 Q & A for evaluating licenses

50. http://www.ala.org/groups/committees/special/ala-dcwg

51. http://readersfirst.org

52. Copyright, Licensing
and the Law of Ebooks
Library Ebook Law
Copyright
Accessibility, Privacy, Free Speech
Ebook platform vendors and
emerging library-based projects
Licenses