Saturday, January 07, 2012


I am here at AALS in Washington, DC. We have had the meeting of the Society of Academic Law Library Directors, kindly hosted by Billie Jo Kaufman at American University's Washington School of Law, on Thursday morning. Then, librarians rushed back to the hotels for the Law Library section luncheon. Lolly Gasaway, the retired director from University of N. Carolina at Chapel Hill, and copyright expert, spoke at the luncheon. Lolly talked about licenses being used as a way to contract around fair use rights under the federal copyright statute, and how non-disclosure clauses make it very difficult to study or compare what is going on. She had several recommendations:

1) Model licenses;
2) Use federal copyright law as a backstop, where the terms offered in a license might be preempted by statute;
3) Some state consumer law may make license terms unconscionable. For instance, in Massachusetts, we have very strong consumer protection laws that assist in making such an argument. State statutes and regulations can help moderate the swing that federal legislation has made in recent decades toward an extreme in protecting the rights of copyright holders.

But finally, according to Lolly, all these arguments come down to judicial decisions. Libraries continue to "agree" to restrictive licenses, sometimes through "shrinkwrap" or click-through licenses, and sometimes by trying to obtain subscriptions for faculty or students for items such as Netflix or other subscriptions that are really envisioned for individual consumers. Increasingly e-book licenses, including e-casebooks, have licenses that are designed for individual ownership, and the vendors are not rewriting the license to tailor it for library use. Consortial negotiators, such as NELLCO can help educate and shape the licensors, and are slowly having an effect. See California Digital Libraries licensing toolkit.

Lolly cautions libraries very strongly, though, that violating copyrights will run them afoul of the law. Just because your heart is "good and pure," the law will still come down hard on you for violating copyright.

Following Lolly's excellent talk, we had a very thought-provoking section program, "Libraries and Copyright: Friends, enemies or Strangers on a Common Path?" Speakers were chosen from a call for papers: David Robert Hansen from U.C. Berkeley School of Law and Hannibal Travis from Florida International University School of Law. It was a copyright-heavy day. Travis' talk on the Google Books Project and the law suit that stopped it was fascinating. I particularly liked his study on how the 4 publishers involved in suing Google to stop the project have actually seen their sales increase since the Books Project began.

This only covers Thursday. I still have to tell you all about Friday and Saturday & of course, I haven't lived through Sunday, yet! The decoration image of the Washington monument is courtesy of

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