Webinar: Before Friends Become Frienemies

For nearly the past two years, I have been the board president for my library system's board of trustees. Our system also has a friends group. So it was only natural that I be interested in this webinar sponsored by the Friends of Libraries Section of the New York Library Association. 

The webinar was on Sept. 30 and it has taken me a while to get my notes together.

Presenters: 

• Lisa C. Wemett, Immediate Past President of FLS/NYLA
• Melissa Tacke, Director, Castleton Library  

Short Description:

Hear some practical strategies to facilitate positive and productive discussions, working together to avoid potential conflict between the library administration, library trustees, and Friends of the Library. We’ll discuss some common situations where the community volunteers and library civic leaders could conceivably lock horns.

Learning Objectives:

At the conclusion of the webinar, participants will be able to:

• Relate the basics of conflict behavior and approaches to conflict resolution
• Explain and utilize the outline of “Working Together: Roles & Responsibilities Guidelines” for discussion with all parties (library administration, Board of Trustees, Friends)
• Formulate a basic operating agreement for the Friends, library administration, and library’s Board of Trustees to manage operations smoothly and guide the arrangements for a constructive partnership
• Prepare a standardized document to guide financial contributions from the Friends to the library

Notes:

This session was focused on what friends of a library do and how to avoid conflict between the friends, the library, and the library's board of trustees.

Friends are a valuable support system. They provide goodwill, public awareness, and advocacy. This is a team that helps to support the library's efforts.  The library director, library board, and friends should work together to benefit the library.

Board of trustees and friends often find their relationship to be complicated, because of how they intertwine. Conflict includes:

• Misunderstanding
• lack of information 
• poor communication
• looking for a scapegoat

If a conflict becomes wide spread, more people can become affected by it. Strategies to avoid conflict include:

Open Communications

• Clear and open communications including written reports, emails, memos, and meeting minutes
• Face to face meetings can be helpful in ensuring cooperation
• The trio of liaisons, who serve as ex-officio members
  
• Staff liaison to the friends - the director or designee
• The entire library staff can be champions for the friends' activities
• trustee liaison to the friends
• Helps the friends feel like true partners
• A representative of the friends should  be invited to the library's board of trustees

Clarifying Roles and Responsibilities

• All parties must be clear in their roles.
• See Library Friends and Foundations in the Handbook for Library Trustees of New York State.
• See also Working Together: Roles & Responsibilities Guidelines in the Handbook for Library Trustees of New York State.
• The director, board, and friends all have specific responsibilities
• Friends control their own operations and decision-making, but cannot make decisions about library operations.
• Friends may collaborate with staff on specific activities
• Keep in mind that the role of the friends may depend on the interests of its members

Having a Memorandum of Understanding (MOU)

• Consider this a "pre-nup" for friends, board, and staff
• It defines how the entities will function together
• Written, provides guidelines, clarifies roles and responsibilities
• United for Libraries has guidelines for drafting these documents in Libraries Need Friends: Starting a Friends Group or Revitalizing the One You Have (see "The Formal Operating Agreement" and "Sample Memorandum of Understanding").
• See also "Understanding Roles"
  
• Development of this document requires frank and open discussions. 
• Parties need to consider "what ifs" and scenarios.
• Should be jointly drafted by all parties.
• The sample MOU from United for Libraries is short. Consider what information it might contain including:
• Names of the parties involved
• Purpose and mission
• Include that the friends are an independent group 
• Friends roles and responsibilities
• Friends will publicly support library policies
  
• What are the friends initiatives, e.g., purpose of fundraising
• Document should include what the friends will not fund.
  
• How funds will be distributed
  
• Support needed from the library, e.g., staff support. Statements may be broad.
• How friends will be included in the library's planning processes
  
• A plan for communications
• Assurance that friend will maintain their non-profit status
• MOU is signed by the board president, friends president and director.
• The MOU should be reviewed regularly and when there is a change in leadership.
• Should include a succession plan. 
• Disbanding and dissolution language, which allows the group to continue with new leadership and new members. This is separate from the text required by the IRS.
  

Other Thoughts

• If there is no current MOU, what are the current operating procedures? That could be the start point for the development of an MOU.
• There should be an annual joint meeting of the friends and the board of trustees. 
• Could their be a joint standing committee? Would that be helpful?
• How does volunteer support fit into the long term plans for the library?
• Discuss the library's budget and what the friends hope to contribute.
• Note that friends cannot tell the library how to spend money. They also cannot withhold money. Friends funds are for the library.
• Create guidelines for expenditures of funds.
  
• There should be transparency on how the funds are used. "We made this happen."
• Friends and the library should agree on how funds will be used. Fund extras.
• What kinds of expenses have the friends been covering? These should be things that are outside the library's normal operating budget.
• How much revenue should the friends hold to help with their organizational expenses? 20%?
• Who should request funds from the friends? When are requests sent to the friends? How often can requests be sent?
• Friends need good, clear financial systems. Put safe guards in place. Create guidelines.

Takeaways

We tend to shy away from having formal agreements, thinking that a handshake (informal) agreement will suffice. Creating an MOU may seem like too much work, but they create a framework to ensure that everything proceeds as the friends, library board, and director intend. It could be that the MOU does not need to be consulted frequently. It will be vital, though, when questions are asked or people are unsure what to do. 

The defined processes - e.g., having specific meetings between the friends, library board, and director - are another step in assuring that each party is communicating well and asking as expected. Yes, having liaisons are good, but joint meetings brings more people into the conversation and hopefully into agreement.

Having a friends group is work for all involved - library board, library director, and the friends themselves. There is a cookware ad that says, "set it and forget it".  That phrase is not one to use with your friends group! Just like the library itself and the board of trustees, the friends group needs regular attention.

Additional Resources

• Dr. Barbara Benoliel. (2017) What’s Your Conflict Management Style?
• K. Thomas and R. Kilmann. An Overview of the Thomas-Kilmann Conflict Mode Instrument (TKI), Kilmann Diagnostics (bottom of page).

CDL Co-Op Releases Statement on Using Controlled Digital Lending as a Mechanism for Interlibrary Loan

I am very pleased to have been part of this effort below. Please feel free to share this press release with people in your library, library system, or consortia.

---

PRESS RELEASE

October 4, 2021

CDL Co-Op Releases Statement on Using Controlled Digital Lending as a Mechanism for Interlibrary Loan

In September 2021, the CDL Co-Op, a group of librarians and information professionals working on issues of resource sharing, interlibrary loan, and controlled digital lending, announced its Statement on Using Controlled Digital Lending as a Mechanism for Interlibrary Loan, available at https://controlleddigitallending.org/illstatement. Developed with deep community input, the Statement’s introduction provides context for library use of controlled digital lending (a modern method for libraries to loan digitized items from their print collection to their patrons in a “lend like print” fashion) as a mechanism for Interlibrary Loan. By situating it within the purpose of libraries and the ways they serve their communities and society, the introduction lays the foundation for 10 brief statements that define and affirm the use of Controlled Digital Lending (CDL) in library and interlibrary loan (ILL) contexts.

The Statement was developed by the CDL Co-op during 2020 and 2021 in response to community need, and in conjunction with broad library community conversation and feedback. This approach to the development of the Statement increased awareness of controlled digital lending (CDL) in the context of interlibrary loan among librarians and library staff, and also provides an opportunity to improve the services provided by the library resource sharing community by ensuring libraries and consortia are operating from a shared set of assumptions and principles.

Recognizing the uncertainty many library staff and related organizations feel around CDL practices and legalities, the CDL Co-Op framed its Statement as a shared starting point for broader community conversation around these issues. CDL Co-Op participant Charlie Barlow, Executive Director at the Boston Library Consortium, noted, “These statements were intended to build comfort with CDL among members of the library community, and to diminish the fears and misconceptions that prevent us from properly and permissibly using technology to increase equitable access to information. The sudden switch to remote learning for so many this past year and a half made this work even more urgent.  These statements are a starting point that we hope will generate an open and candid discussion among all stakeholders.”

The authors are now calling on libraries, related organizations, and individuals to endorse the Statement by adding their names to its list of signatories, which includes a dozen organizations such as the Boston Library Consortium (BLC), Duke University Libraries, the Private Academic Library Network of Indiana (PALNI), the Partnership for Academic Library Collaboration & Innovation (PALCI) Board of Directors, Orbis Cascade Alliance, VIVA - the Virginia Academic Library Consortium, and the Association of Southeastern Research Libraries (ASERL), among others. Organizations may endorse the statement online at https://controlleddigitallending.org/ill/sign. In the coming months, the CDL Co-Op will build on this work with a forthcoming white paper that further explores the use of Controlled Digital Lending for ILL purposes.

Media Contact:
CDL Co-op
Email: cdl-co-op@googlegroups.com
https://controlleddigitallending.org/illstatement

The CASE Act and Libraries: 2021 Miami University Libraries Copyright Conference

This is the last session (Oct. 1). Thanks to Miami University (Ohio) for an excellent conference.  I enjoyed having the sessions spread over five days and was able to attend five of the seven sessions.  (I missed "Offering Copyright Services" and "U.S. Copyright Office Update".) A big thanks to Carla Myers for hosting this event.

Speaker: Kenneth D. Crews

Description: The CASE Act, passed in late 2020, has the potential to impact library users. Join us  to learn more about the development of the copyright small claims court and ways in which we can educate our users about it.

Questions asked by participants are in bold.

The CASE Act answers the age old question, "Do we need to sue more people?" Congress answered, "yes." Thank you for the opportunity to litigate!

This is a means that people who don't have deep pockets can bring a legal proceeding. 

Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020. This is a alternative for resolving copyright disputes in a small-claims court.  

What is a small-claims court? Looking at existing small-claims courts, a small-claim litigation  may have a cap on the dollar amount which can be awarded. They are also informal. You do not have a lawyer represent you. A person may have a larger claim, but decide to go to small-claims court for a smaller amount, just to get it done.

Why the Copyright Claims Board (CCB)?

• Simpler, streamlined proceedings.
• Cap on damage awards of $30,000.
• Determinations are generally final.
• You may be represented by a lawyer. You can also be represented by law students (pro bono).  This could cause CASE Act law clinics to form in some of our law schools.
  
• Staff of the CCB will help with filings and proceedings.  So this meant for people who don't file many cases.

The CCB does not hear cases, rather it hears proceedings.  It is not a court. A claimant brings the proceeding against a respondent. The judges are referred to as Copyright Claims Officers. Rather than decisions, there are determinations. Taking a proceeding to the CCB is voluntary.

These are not an Article 3 Court. In other words, they are not part of the judicial system that is set up in the Constitution, Article 3. The CCB is part of the Copyright Office, which is part of the Library of Congress, with is part of Congress.

In the an earlier session we talked about the possible constitutionality or lack there of the tribunal. What does Kenny think?

He does not have a strong opinion. He had heard the people wonder if moving the CCB into the Judiciary would be better.

What kind of proceedings?

• Claims of Infringement
• Claims of Non-Infringement
• Claims of Misrepresentation (Section 512(f))

This is not really a "court"

• Not part of Article III
• Proceedings are voluntary
• No formal rules regarding evidence. The CCB can request evidence. The CCD could request evidence in one case and not another.
  
• Monetary relief only.
  
• "Injunction" only if agreed.  The CCB cannot force it.
• The CCB is allowed to put into its determination that Party A has agreed to cease activities, if both parties agreed. The CCB can note if the Party has ceased their activity when determining the monetary relief.
  
• No recovery of attorneys' fees (usually)
• There are a couple of places where attorneys' fees can be awarded, but not enough to make a big difference.
  
• Determinations are not precedent and may not be used in future proceedings.
• You cannot rely on the determinations of CCB in future CCB cases or in future court cases.
• The determinations will be made public and will be studied, which might produce influential information and trends.
• Filings and decisions will be easily available online. Crews believes there isn't much room for confidentiality. He does not know how quickly determinations will be online.

My understanding is that the CCB has to consider what courts have ruled for other copyright cases in their decisions.  Is this the case, and could the CCB rulings possibly influence court decisions?

Yes, it is possible that CCB rulings will be influential. The CCB is required to look at court cases, when making its determinations. They should look for precedents in the court district where a court case would have been filed, or in the nearest district.

A deep-pocket party will have a big advantage in the CCB, because they can file more documents in their proceedings.

CCb doesn't seem to have much ability to enforce terms outside of the proceeding. What happens when the respondent later fails to honor an injunction or determination? Courts have repercussions for defendants who violate terms.

We still need courts:

• May file an action is the U.S. District Court for review of the CCB proceedings.
• Decisions are final. However, the District Court can review the CCB process.
  
• May file an action in the U.S. District Court for confirming CCB order for relief.
• The power of the District Court may be used to get the determination fulfilled.
  
• Opposing party may be ordered to pay those costs and attorneys' fees. 
• Regular courts provide oversight and enforcement.

Strictly voluntary:

• The Claimant files voluntarily
• The Respondent has 60 days to opt out
• Otherwise: 
• Loses ability to have the matter heard in a real court.
• Loses the right to a jury trial.

As the respondent, how would you know that the claimant has gone to the CCB?

Watch for service of notice. We don't know yet what the form of the notice will look like. When we know what that form looks like, look at it closely so you know if one has arrived at your home or office. If you don't spot it, and 60 days go by, you have lost your ability to opt out.

Let's talk more about trolls. There already are people that send demand letters, asking for thousands of dollars for an immediate settlement. With the threat of initiating a lawsuit and the potentially massive statutory damages. I think it is reasonable to assume that the CCB will be used as a lower stakes, especially for the trolls, mechanism for extracting payment. This could also circumvent the mechanisms that the CCB puts in place to limit trolling.

Congress evaluated the concerns that this could attract trolls and feel the risk of trolls are low. The Copyright Office can limit the number of actions a party can submit to the CCB.

There are three copyright claims officers. They are required to render their determinations as a group of three. They render determinations together. All three address all cases. This process could be overwhelming for the CCB. It will have an overloaded schedule. They can hire staff attorneys and other staff, which might help.

Libraries, Archives, and the Opt-Out

• Libraries and archive may preemptively Opt-Out of all actions brought against them.
  
• But not:
• Librarians, archivists, and other staff. So a copyright action could come against an individual, instead of against the institution.
• Libraries within a parent institutions, e.g., college or university
  
• "Libraries" as defined within the scope of Section 108
• Libraries open to the public or to outside researchers
• Could their be legal disputes over what "libraries" fit into Section 108?
  

Wonky legal stuff (things lawyers will love):

• CCB can assist with subpoenas under 512(h)
• Tolling (freezing) of the Statute of Limitations. An interesting way of using the CCB.
  
• Must register the copyright with the U.S. Copyright Offices or at least have an application submitted. If only an application, it affects your damages.
  
• CCB shall apply precedent from the district where the matter could have been filed.
• Determination of ownership in one proceeding cannot be used in any other case or proceeding.

Get ready!

• Watch for services of notice
• Report any Notice to:
• Senior staff
• Legal counsel
• Act immediately on the Opt-Out
• Know your rights and options
• Protect your institution
• Protect yourself - You may be the one the claim is brought against. If necessary, get independent advice. Remember that liability generally flows upstream.
  
• Develop policies and procedures
• Don't under-react. If your name is on the piece of paper, keep track of what is happening.
• Don't over-react. Don't immediately stop how you are using copyrighted materials now.
  

When will libraries be able to start the opt-out process?

The Copyright Claims Board is schedule to commence business one year after the enactment of the statute. That means it should occur at the end of December 2021. The Copyright Office could put a six-month extension on the start date. The day it begins, there should be a way of opting out. That method could be released sooner.

Corporate libraries are not eligible?

Section 108 allows libraries to be open to outside researchers, which covers some corporate libraries.

What does opting out do?

You're opting out of being a respondent.The CCB may check to see if you're on the opt-out list.  A claimant may file anyway if they feel that the library does not fit under Section 108.

Can a library that has opted out of being a respondent, be a claimant? Crews believes the answer is "yes."

If institution receives notice, will the CCB also provide notice to you? Could you be named on that notice but not receive it, that it goes to the institution instead? If you are named but notice is given to institution and not you, how would you know you needed to opt out? Does that make sense? 

Everyone named in the proceeding should be notified.

Why wouldn't an individual opt-out?

There is not one rule. A person should look carefully at the proceeding. It is likely tht the decision will be to opt-out.  If you believe that the accusations are false, you may decide to proceed with the matter and not opt-out. You will want to size up the other party, their financial resources, etc., when making that decision. You may want legal counsel to help you with that decision.

Resource:

• Register of Copyrights. (2013) Copyright Small Claims.

Answering Tough Questions: Consultations and Policy Development: 2021 Miami University Libraries Copyright Conference

This session is "Answering Tough Questions: Consultations and Policy Development."

Presenters: Kenneth D. Crews and Jack Bernard

Description: As copyright librarians, we are sometimes asked to be involved with challenging consultations, projects, or policy development. In this session, we’ll identify ways to help efficiently guide our libraries and library patrons through these situations and establish balance between the rights of content creators and those seeking to reuse works. 

Conference host, Carla Myers, reminded us that the copyright community is a welcoming one. She is thankful for those who are presenting this year and have presented in the three previous years.

Jack Bernard has done work with HaithiTrust.

This was a Q&A. Questions are in bold below.

Crews: What do we mean by tough copyright questions? Difficult? Unusual? Complex? Mysterious? The mythology of copyright? Questions can be tough because of sensitive situations, emotional investment, financial investment, etc.

Bernard: Tough could be because of a tight timeline or risk. It could be tough because we see a copyright concern, when the person who has sought us out does not. Context matters incredibly.

Crews: Some people are risk tolerant and look for forgiveness if something goes wrong. Others are not risk tolerant. Those are not risk tolerant will not be happy if contacted by a copyright owner. A publisher, for example, may not be risk tolerant because of their investments in a project. Risk changes depending on the situation and people involved.

Bernard: Risk is a X-Y graph. Risk is on the X-axis. The Y-axis is how likely someone will care. There could be more factors, but this is a simple way of thinking about risk. Are you willing to endure any transaction?

Crews: An additional variable on a scaleis decision-making. So not just one item, but making a decision that will affect multiple items. For example, deciding to digitize all dissertations for a university. Can you make sweeping decisions? We will error by being over protective or by being under protective. How big of a mistake are you willing to absorb? Who should make the decision?

Bernard: He talked about how complex dissertations are! They could include databases, for example. Our old fashion systems cannot handle those layers and layers of complexity.

Crews: And what will the university's alumni think about their dissertations being digitized? That adds to the complexity. Should you ask your alumni for permission?

Bernard: Don't ask for permission. BTW once a dissertation is online, search engines might find plagiarism.

Crews & Bernard: What if a person said they had a dissertation and no dissertation is digitized or discoverable...and the institution can't find it?  Digitization finds a flaw in that person's past!

How do you evaluate risk practically? What considerations do you take into account? How to explain risk to people who do not understand copyright?

Bernard: We set standards at our institutions. Get to know the attorneys at your institution and have an open dialogue. It is perfectly fine that your interpretation is different than ours, but recognize that our standards and practices are different. Don't feel that you always need to engage in a copyright 101 or 501 class on the fly.

Crews: Think about a policy that has gone through a vetting process. The policy can be instructive and an educational tool. It also guides you. That policy then helps you address the person who has a copyright question.  If that is not satisfactory, then the policy should tell them who to contact.

Bernard: Some of you might be "the copyright person." You might be reluctant to pass the question to someone else, especially if they are highly knowledgeable about copyright. 

People who are really serious about this issues will be willing to invest time to improve the system.

Be willing to hire someone to help you develop policies, etc., if you need it.

Crews: He has been inside counsel and outside counsel. He noted that pressure is on the outside counsel more in assuring that the questions are answered properly. They are the last line of defense.

I think preservation questions under Sect. 108 very difficult -- where is the nexus with fair use?

Bernard: He started with Section 106 (of course!). It begins with noting Sections 107-122. Some of those things in Section 107-122 are fair use and some are not, but we're giving people rights to use.

Crews: Section 107 uses the word "consider".  The four factors are to be considered.  It does not give exact answers and many people had questions, which led to Section 108-122.

Section 108 let's libraries to make use of works in their collections in different, specific ways.  The preservation statutes in Section 108 are specific, even if some words are not defined (e.g., library).  For example, you can make preservation copies of unpublished works in specific circumstances. You need to work through the statute - slowly - and see what Congress wants you to do. 

Bernard: Preservation is not a hard problem, but how to you use what you preserve? That is hard. Efforts to preserve things will not be the problem. But then there will be new appetites for how to use those works. That is where the challenges and potential problems will lie.

Crews: Section 108 in terms of preservation is pretty good, but it has limitations. He notes that some sections - like this - are the result of lots of lobbying. Congress does want to give the library useful exceptions, but various industries don't want Congress to give libraries too much power. 

In 1998, there was an amendment to Section 108 to makes explicit the ability to make digital copies. Libraries wanted it to be explicit, but then Congress added text to make the entertainment industry happy (e.g., restrictions on the distribution of the high quality digital master).  There are sections of this statute that need to be followed closely.

If you can fit your activity satisfactory into a specific statute, do it. But if your activity is not fit into a specific statute (108-122), go back to fair use. Evaluate whether if your activity can fit into fair use.  Maybe yes. Maybe no. Maybe you need to modify your use.

Bernard: Sections 108-122 are designed to be easier than fair use. But remember you can do a fair use evaluation.

Section 107 is the trickiest for music!  Bass line (Under Pressure) or chord structure?  or remixes? or arrangements, samplings...

Crews: I don't know if that makes fair use trickier. What is the use? 

Bernard: We spend more time romancing the issues. And there are music bounty hunters. Music has also gotten more complex.

The public performance rights for music have been cut up into small piece, which becomes problematic.

Both Crews and Bernard talked a bit more about music, based on comments in the Zoom chat. Bernard noticed that even sampling small pieces can get someone into trouble. Crews even mentioned Katy Perry and "Dark Horse."

[The conversation shifted to e-reserves, which was something in the session description.]

Crews: E-reserves! We think of this as a library question, but it's not really.  It is not in Section 108. 

Many universities and colleges have policies which the instructors and librarian use. Be wary of word count guidelines and simple answers. Can we use the four factors of fair use in this context? What are the details? 

How much time will be spent thinking about fair use? Could the time and energy be offset by taking a different course? Can you be more creative? For example, rather than making copies of two chapters for each student in your class, buy a copy of the book for each student. 

Bernard: Walked through a similar scenario.  In his example, he told the faculty member to keep notes of how the decision was made.

If the book isn't in yet for a class, can a few portions of the book be made available for students?

Bernard: He feels this would be low risk.  He also said publishers often will provide copies of introductory chapters, knowing that books are being purchased.

What is a public performance?

Bernard: Many places that seem very private to use are public places under copyright law. Private places are your house or your hotel room, for example. A wedding, which may be a private affair, are considered a public place.

Crews: The definition of "public" is troublesome. He notes the details (in the bold text below), which are often forgotten.

From Section 101:

To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Section 110 notes what can happen in a live face-to-face classroom. Section 110 exists to give greater certainty. It must exist, because the behavior - showing a movie in the classroom - could be a copyright infringement ("substantial number of persons outside of a normal circle of a family and its social acquaintances").

Bernard: Courts are likely to take a narrow view of what is private and an expansive view of what is public.

In conclusion...

You don't have to be a lawyer to be knowledgeable about copyright and help your institution make thoughtful decisions. Copyright is not simple to apply, so learning and applying it is not for everyone.

Think about the whole ecology of your institution.  If you are going to disrupt the ecology too much, your risk goes up.

Crews: Look at the statutes. Be flexible on what the words mean, especially those that are not defined in the law. Always give yourself an out, while recognizing that there are exceptions.  Remember that there may be multiple routes to get to the use you want.

About Kenny Crews' background, @RateMySkypeRoom (a.k.a. Room Rater) on Twitter said: "Good depth. Horns.* We are pro duck. Lighting needs a tweak. 9/10 @kcrews *Horns are not considered taxidermy which is the ultimate Room Rater violation."

Copyright Chat Live: 2021 Miami University Libraries Copyright Conference

This session is "Copyright Chat Live: Learning to be a copyright librarian through community conversations."

Presenters: Will Cross and Sara Benson

Description: In this session we will introduce the Scholarly Communication Notebook (SCN), an open, community-based resource for copyright education. We will explore the opportunities for connecting open education and copyright literacy through one of the unique projects that is part of the SCN, the Copyright Chat Podcast. Join us to participate in an interactive workshop where you will learn more about podcasts as OER (open educational resources), collaborate to decide on a topic for a podcast episode about the SCN, and help to record a live episode of the Copyright Chat Podcast. Come ready to participate in a fun and interactive session! 

"Our collaboration is both from the mutual realization that scholcom [scholarly communications] and copyright have been under-addressed in LIS education." Coming out of library school, Cross wished that he knew more. 

Open education gives us the opportunity to say that there is more than one correct answer.  It allows for conversation. "...knowledge should not be an elite domain." 

Cross noted that there is exciting work being done with open education at community colleges. That work should not be lost.

Benson's Copyright Chat Podcast goal is to bring quality information to the public. Not all of the podcast episodes are focused on copyright and libraries. Most of the episodes are interviews with experts. She is contributing a "fun way to learn about copyright by listening to the Chat podcast and completing exercises tied to episode content." The podcast is licensed to be open and she encourages others to build upon them.

 Benson provided some podcast tips.

Benson and Cross then began recording a podcast episode of Copyright Chat using the conference participants as those asking questions of them on the topic of potential liability under the CASE Act and sovereign immunity. October 4 is the deadline to give comments to the Copyright Office on the CASE Act.

Does sovereign immunity extend to librarians in the scope of their employment at land grant institutions? 

Benson referenced the Georgia State case. Sovereign immunity protects from large statutory damages. It does not prevent you from being sued and asking for an injunction. It is unclear if sovereign immunity extends to employees in the CASE Act.  

Cross noted that sovereign immunity is for public information. the CASE Act is a small claims tribunal. Should individuals opt out? Should the be covered by their employment? If staff run the library, how can you separate them from the library?

Libraries serve society, hence Section 108.  So it is weird to protect the institution and not the people who do the work.

This part of the CASE Act will impact what libraries do.  If library employees are being sued, then that could cause libraries to shut down. 

Libraries often weigh in on court cases that could impact libraries. We need to remember those and that advocacy is important.

Is there is a risk involved in stressing how the CASE Act will impact our daily work?

Benson says, "no." She did not include everything she does in her comment to the Copyright Office. She did include information on specific areas where this would have an impact (e.g., in her teaching). She used very normal examples.

Cross agreed that Fair Use is a risk assessment and exercising a "muscle." The Copyright Office has not always been a "library first" organization. 

He also noted that there are concerns about sovereign immunity and its broad use. "These are stormy times." Benson noted ongoing conversations on sovereign immunity.

Question about the constitutionality of the CASE Act?

Benson believes this has to do with the tribunal, because it is not an official court and part of the judiciary. Cross noted that the 7th Amendment states that people have the right to a trial by jury.

While this tribunal is said to be for small claims, Cross notes that the amounts are not small, although small for large multi-national organizations.

Benson said that EFF is interested in backing a plaintiff, once someone is sued.

Does the CASE Act affect faculty?

The opt out provision is for libraries and archives specifically. 

However, will the CASE Act affect faculty? Yes, but we don't know specifically how that will occur.

How do we educate our non-library community?

Benson noted that this is all still a moving target. Once we know more details, that education will be important. What is it? What are the potential outcomes? How does being at a state institution impact this? What are the options? 

Be sure to talk with your administrators and the organization's counsel office.

Who should submit comments about the CASE Act?

Check with your institution and see if someone else should send in those comments, e.g., counsel office, dean of the library, government relations, etc.

Consider if you can send in a comment as yourself and not as an employee of your institution.

What type of communication would you have with your administration?

Cross said that our associations could produce model language. That would be a great service from our associations. Create a repository. It is too early to do that.

What's next?

People should sign-up for U.S. Copyright Offices notices. This will help you be engaged in the process. 

Once things get a bit more settled, then we can create tools to help with our staff and faculty. Don't engage them too early, because right now things could change.

Will the CASE Act create copyright trolls?

Benson, yes, that is a possibility. 

Someone has said the CASE Act could be a copyright troll factory. Trolling models already exist.

Resources:

• OER + ScholComm 
• Scholarly Communication Notebook
• In Blackbeard Pirate Ship Case, Supreme Court Scuttles Copyright Claims (2020) - on sovereign immunity
• Copyright Small Claims and the Copyright Claims Board
• Copyright regulations and libraries: The CASE Act and how to make your voice heard (webinar recording)
• Draft Letter to US Copyright Office re: CASE Act Rulemaking
• Rise of the Copyleft Trolls: When Photographers Sue After Creative Commons Licenses Go Awry (2021)
• Creative Commons License Enforcement 
• Beware the Copyleft Trolls (2021)
• MLA Copyright for Music Librarians