LEGAL ISSUES

Section Editors: Bruce Strauch (The Citadel) Jack Montgomery (Western Kentucky University) Legally Speaking — Librarians, Publishers, and Educators Help out During the Coronavirus Pandemic

by Anthony Paganelli (Western Kentucky University)

s a light spring rain falls, I am Samaritans are contributing to aiding those es online or as they distributed printed currently writing this column in need and others are helping the best way copies to students without computers or Ain my home while my wife is that they possibly can. Internet access. Some librarians have conducting a Zoom meeting with her provided information via email, telephone, It was a very difficult situation. Natu- colleagues, and the children are doing video conferencing, websites, and through rally, humans want to be helpful, but when school work on their devices. I joked blogs. The University of Florida has you are told that you could do more harm with them that their new at home school is even created a Coronavirus Library Guide by reaching out and helping, it becomes called the “School of Constant Sorrow.” that has provided information for faculty frustrating and depressing when you can’t. Of course, I thought it was funny, but they regarding copyright as they transitioned However, we are all doing the best we can just rolled their eyes. Now it is called, the their course assignments online. This is a through the knowledge and experiences “Paganelli Learning Academy.” major way librarians are assisting teachers that each of us possess. For instance, and students. While we are practicing “social dis- businesses are adapting to continue to pro- tancing” during this global pandemic, I vide goods and services, manufactures are Librarians’ Statement realized that we are witnessing an histor- changing their production lines to produce A statement was released on March 13, ical moment. I can honestly say, I have medical equipment and supplies, and more 2020 by a group of academic librarians, never witnessed such mass closures and people are thinking of other ways to con- public librarians, and library administra- uncertainty in our communities, nor have tribute, such as people using their sewing tors that provided information regarding I ever heard of “social distancing” until machines to produce masks. fair use and emergency remote teaching March 2020. We have even encouraged and research. The authors noted that copy- our children to periodically write in a It has been good to see people coming right restrictions do not go away because journal about their experiences, so they together and helping in the best way that of “a public health crisis.” The statement can share them with others in the future. they can. While librarians may not be able contends that the copyright law was creat- This time has truly been frightening to to physically reach out to our communities ed to help in this type of emergency based encounter and endure. due to the restrictions, we have sprung into on the constitution’s goal “to promote the The coronavirus or COVID-19 pan- action with our experience and wisdom. As librarians, we have many roles that Progress of Science and the useful Arts,” demic is causing thousands of the deaths which is through Fair Use. across the world, healthcare systems are have been helpful to others during the stretched far beyond their capacities, it pandemic. The most notable way librar- Librarians were able to provide infor- is crippling national economies, causing ians are helping are providing resources mation for teachers about the relief from chaos amongst the masses, the sports and to teachers and students. Millions of copyright resources, which are provided entertainment industry students across the world through the U.S. Code 17 § 108 Limita- is taking a hiatus, are studying at home. tions on Exclusive Rights: Reproduction and social interac- In the United States, by Libraries and Museums and U.S. Code tions are changing teachers worked dili- 17 § 107 Limitations on Exclusive Rights: rapidly. And during gently and swiftly to Fair Use. Section 107 is the most import- this time, the world adjust their learning ant section for educators based on “the is watching and outcomes and means purpose and character of use,” which is praising health care of instruction to meet for non-profit educational purposes. workers who are battling the new “Non-Tradi- As the authors of the statement noted, the virus on the frontlines. tional Instructional” “It is evident that making materials avail- They are risking their lives and initiative. In order able and accessible to students in this time sacrificing time away from their loved to help provide these resources to their of crisis will almost always be fair use. ones, as well as witnessing the devastation students, librarians stepped up to assist. As long as we are being thoughtful in our that the virus leaves. Thousands of first Numerous librarians have reached out analysis and limiting our activities to the responders are also placing themselves in to teachers and faculty to best assist them specific needs of our patrons during this harm’s way to help others. Several good as they transitioned their learning resourc- continued on page 46

Against the Grain / April 2020 45 In an effort to provide research in- and advocated for the heritage of the Legally Speaking formation for Coronavirus researchers region’s culture. from page 45 and other similar research interests, Taylor & Francis Group has created the Future of Copyright in time of crisis, copyright law supports our “COVID-19: Novel Coronavirus Content a Public Crisis uses.” The statement also included a link Free to Access” site.” According to the The pandemic continues to cause to resources for fair use and emergency site, “Taylor & Francis is committed thousands of deaths and is devastating remote teaching and research materials. to helping public health authorities, national economies. People are changing The statement concluded with infor- researchers, clinicians and the general the way we are interacting with each other, mation for copyright holders. The authors public contain and manage the spread of especially as we communicate through noted that the statement was in support the COVID-19.” The site “provides links Zoom and other devices. While most of copyright laws, but the statement also and references to all relevant COVID-19 people can’t physically help, librarians, mentioned the extreme situation and research articles, book chapters and infor- educators, publishers, researchers, and pressure educators endured transitioning mation that can be freely accessed.” The even museum security guards are work- materials and resources to their students company is also working with editors, ing diligently to provide resources and due to the pandemic. Further information peer-reviewers, and researchers to ensure materials to students and our community highlighted other resources for educators the information is prioritized. during this pandemic. to seek, such as resources that were in Museums Adapting The librarians’ statement regarding fair public domain and already licensed online use during a public health crisis brings content. The American Alliance of Museums an issue to the foreground. While the Publishers Offer Relief has also provided information for the pub- statement and the code itself is reassuring lic and those in the museums profession that people receive sufficient resources As librarians offered assistance, pub- with resources and information regarding for educational purpose during times lishers began to offer some relief for edu- the coronavirus that included educating of hardship, the situation does raise the cators and book sellers. The Association the public on COVID-19 and preparing question of how to best handle copyright of American Publishers released a list of for closures. The museums quickly issues during a public health crisis. In education publishers that were providing realized the need to provide and engage other words, should there be an addition or support for students and educators during their audiences through digital means as revision to the U.S. Code § 107 to provide this pandemic. Many of the publishers the museums were being closed across exemptions on copyrighted materials for issued statements and guidelines for fair the nation. educational purposes during a crisis. use and offered benefits for librarians, educators, and students for the remainder Same as libraries and publishers, the Fair use is an important part of U.S. museums have begun to provide resources of the spring term. copyright law and it does provide some for the public via online platforms, such as relief for educational purposes. Yet, For example, Cambridge University websites and social media. The American fair use is a difficult law to assess. El- Press has offered free online access to Alliance of Museums provided muse- kin-Koren and Fischman-Afori (2017) their higher educational textbooks. K-12 ums four best options to engage patrons stated, “Applying the four factors of fair institutions are also receiving some relief remotely, which were social media cam- use involves complex analysis, which from Cengage’s National Geographic paigns, virtual streaming, virtual tours, may lead to unpredictable outcomes, thus learning platforms and eBooks. and through artificial reality. For instance, failing to offer sufficient guidance to users MacMillan Learning are offering people can take a virtual tour of the USS on whether a particular use is permissible. college professors that had adapted their Constitution through the USS Constitu- Some users, especially risk-averse users print books to receive free access to their tion Museum’s Facebook page, as well such as libraries or schools, may choose online learning platforms for the remain- as a virtual tour of the Metropolitan Art to avoid certain uses which are otherwise der of the term. In addition, MacMillan Museum. desirable and could promote copyright Children’s Publishing Group has created A wonderful social media campaign goals simply due to uncertainty regarding a “database of activities, educator guides, that went viral recently was the National the legal consequences.” discussion guides, and other downloadable Cowboy & Western Heritage Museum Because fair use does not provide an resources to make them easily accessible in Oklahoma City. The administrators exact amount of copyrighted material that and shareable for booksellers, educators, gave their head of security Tim Tiller can be used before it is declared infringed, librarians, and parents.” McGraw Hill charge of the museum’s social media there are various interpretations to the law, has also provided assistance to educators accounts. His social media posts while which hinders some people and organiza- and students. The list of publishers assist- touring the museum during its closure tions from maximizing fair use. Maybe in ing is extensive. went viral, mostly because he had no clue the future, a revision could be added to 17 In addition to textbook assistance, about social media, which was quickly § 107 that would provide a more detailed Chronicle Books are allowing librarians noticeable as he wrote the word “hashtag” amount of fair use that could be utilized and teachers to read-aloud their titles for instead of the actual symbol. In fact his for educational purposes during a national free. Librarians and teachers can read first post to Instagram stated, “I’m new crisis. The concept would most likely their books either live or pre-recorded. to social media but excited to share what never enter legislation, but it is a thought. Other read-aloud publishers include Dis- I am told is called ‘content’ on all of The Of course during this crisis, it is good that ney Publishing Worldwide, Scholastic, Cowboy’s what I am told are ‘platforms’ publishers, authors, researchers, librarians, Bloomsbury Kids, and Candlewick including the Twitter, the Facebook, and and educators are rising to the challenge have specific guidelines regarding how the Instagram.” His social media posts and working within the law to provide af- the books are read-aloud and presented. elevated the museum to a national level continued on page 48

46 Against the Grain / April 2020 Is Sci-Hub Being Investigated by the FBI?

by Bill Hannay (Partner, Schiff Hardin LLP, Chicago, IL)

ast December, the Washington fully delayed extradition to the U.S. with about someone perceived by Big Business Post ran an article reporting that court appeals, as recently as 2019. (or at least Big Publishing) as an Enemy Lthe Justice Department is inves- A prosecution of Ms. of the People. Such a report tigating Alexandra Elbakyan and her Elbakyan and Sci-Hub would be more trustworthy if Sci-Hub website for possible criminal could be even more prob- the nameless “people familiar 1 links to Russian intelligence agencies. lematic for the Department with the matter” were DOJ or A hubbub immediately arose on the In- of Justice than prosecuting FBI officials, but thePost ar- ternet. Academic and library-oriented the elusive Dotcom. Most ticle doesn’t say that. When blogs breathlessly repeated the story, and importantly, it may be difficult to prove the the sources are in the DOJ, reporters publication giant Elsevier issued a news essential element of a criminal copyright usually identify them as “Department of 2 release commending the probe. But is case: that the infringement was done “for Justice officials.” there really an “investigation”? purposes of commercial advantage or The bottom line is that — for all the Numerous blogs have repeated and private financial gain.” Unlike Megaup- storm and fury from publishers about Sci- quoted the Washington Post article in the load, Sci-Hub is “free” and is expressly Hub’s massive copyright infringements past month. Indeed, one of them (The operated for altruistic purposes, e.g., to ad- — it is questionable whether there is in Geyser) stated that “The DOJ’s public vance scientific research. Ms. Elbakyan fact any governmental investigation of announcement of an investigation strongly is often called a modern “Robin Hood.”6 criminal conduct by Sci-Hub. suggests the investigators have found So the smart bet is that the government By the way, did you hear that the enough evidence to not only proceed with is not seriously investigating copyright Trump administration has launched a confidence, but to announce to the world violations by Sci-Hub. criminal investigation into Greta Thun- that they’re proceeding.” In fact, there The Washington Post article highlights berg? was no such announcement. instead the government’s “suspicion” that There is no press release or other state- she may be working with Russian intelli- ment on the U.S. Department of Justice gence to steal U.S. military secrets from William M. Hannay is a partner in the website announcing such an investigation. defense contractors. The article does not Chicago-based law firm, Schiff Hardin Nor have I found any subsequent confir- cite any proof of this occurring but in- LLP, and is a frequent contributor to mation of such an investigation from any stead notes that “the scale of Elbakyan’s Against the Grain and a regular speaker other newspaper. The only source cited operation has led experts to conclude that at the Charleston Conference. He can in the Post article is that the information she is not operating alone and must have be reached at . matter” who spoke “on the condition of So, is there a government investigation anonymity.” (For her part, Ms. Elbakyan or not? The only evidence that there is one Endnotes is quoted as calling the Post article “balo- is from unnamed “people familiar with the ney.”) Let us ask whether it is likely that 1. https://www.washingtonpost.com/ matter.” Should you trust such unnamed national-security/justice-depart- there is an investigation. sources? Maybe… maybe not. In order ment-investigates-sci-hub-found- Of course, it’s possible that the FBI is to trust the information from unnamed er-on-suspicion-of-working-for-rus- investigating Sci-Hub. The company is sources, you have to start with trusting the sian-intelligence/2019/12/19/9dbc- engaged in massive copyright infringe- reporter(s) who accepted and published b6e6-2277-11ea-a153-dce4b94e4249_ ment, as the federal District Court in the information. story.html New York City found when it entered a Here, the two Post reporters are expe- 2. https://www.elsevier.com/connect/ allegations-linking-sci-hub-with-rus- $15 million civil judgment against the rienced in covering national security sto- sian-intelligence website two years ago in a suit brought ries, so presumably they’ve been around 3 3. Elsevier Inc. v. Sci-Hub, No. 15-cv- by Elsevier. And federal law includes the block enough to know whether to 4282, 2017 WL 3868800 (S.D.N.Y. June criminal sanctions to protect copyrighted trust their sources. The Post is sensitive 21, 2017). works, providing that “[a]ny person who to using unnamed sources: anonymous 4. 17 U.S.C. § 506(a). infringes a copyright willfully and for pur- sources can be overused and abused. 5. https://archives.fbi.gov/archives/ poses of commercial advantage or private But the Post does have a reputation for news/pressrel/press-releases/justice-de- financial gain” shall be punished up to five honesty and integrity to uphold — think partment-charges-leaders-of-megaup- years in prison.4 Pentagon Papers and Watergate — and its load-with-widespread-online-copy- The government used this statute in editors know that sources who are afraid right-infringement 2012 to indict “Kim Dotcom” for criminal to identify themselves have in the past 6. Science correspondent John Bohan- copyright infringement, as well as money provided key information that exposed non sums up the creation of the controver- 5 grave government failings. sial Sci-Hub as “an awe-inspiring act of laundering, racketeering, and wire fraud. altruism or a massive criminal enterprise, (Dotcom aka Kim Schmitz is the founder On the other hand, this is not a “whis- depending on whom you ask.” https:// of the now-defunct music and video file tleblower” situation where unnamed www.sciencemag.org/news/2016/04/frus- hosting service Megaupload.) Schmitz sources have disclosed government or trated-science-student-behind-sci-hub resides in New Zealand and has success- corporate misconduct. It’s information

Against the Grain / April 2020 47 Questions & Answers — Copyright Column

Column Editor: Will Cross (Director, Copyright & Digital Scholarship Center, NC State University Libraries) ORCID: 0000-0003-1287-1156

here’s a comic that was often seen of questions about how we understand situation where neither physical access taped on the doors of my law copyright and implement policy during nor established licensing models can be Tschool copyright professors way the prolonged period of social distanc- applied to education and research. In back in the mid-2000s. It featured a stick ing that began in my neck of the woods response, many educators, researchers, figure person sitting peacefully under a in early March 2020 (much later than and librarians have turned to fair use to tree and looking out at a beautiful blue many other nations) and is expected to fill this exigent, time-limited gap. As li- sky. A thought bubble appears over their continue throughout the spring and into brarian-lawyer April Hathcock has noted, head reading “sometimes, I just can’t get the summer (and perhaps longer still, de- “fair use is made for just these kinds of outraged over copyright law.” (You can pending on a number of factors). While contingencies.” The center of gravity for see it here: https://xkcd.com/14/ and tape questions about balancing copyright many practices is articulated in a statement it to your own door if you like — it’s law with other legal and human consid- shared by a group of leading copyright openly licensed!) That comic has been erations may be better-answered by an experts working in libraries called the going through my head a lot as the global ethicist or religious official, I think this “Public Statement of Library Copyright community has been dealing with the moment also brings into focus the ways Specialists: Fair Use & Emergency Re- COVID-19 outbreak that has closed the that copyright is flexible by design so that mote Teaching & Research” and available doors of my own institution and of most it can accommodate good practice even at https://tinyurl.com/tvnty3a. non-essential services around the world. during a moment like this. The statement articulates the power How much does copyright matter when QUESTION: An instructional librar- of fair use to support public purposes people are in mortal danger or locked ian asks, “How does copyright apply to such as education and the way that power away from society for months or longer? supporting online instruction increases in moments of crisis. It walks How can we understand and respect during global pandemic?” through the four statutory fair use factors, the values of copyright in a ANSWER: In many grounding analysis in the first factor’s way that also recognizes the ways, online instruction questions about the purpose of the use as complexity of applications is entering uncharted well as the importance of checking for and in these unprecedented waters right now since relying on licensed alternatives but notes times? U.S. law has few mod- that a “lack of time to check for licenses With these issues in els for applying mod- should not be a barrier to meeting the mind, I’ve selected a set ern copyright law to a needs of our communities.” The statement offers a set of approach- es to mitigate risk and suggests caution around circumvention of technical protec- tion measures. Finally, it ends by encour- Elkin-Koren, N. and Fischman-Afori, Legally Speaking aging use of already-licensed online con- O. (2017). Rulifying Fair Use. Arizona from page 46 tent, openly licensed and public domain Law Review, 59(1), 161-200. alternatives, and of working with content fordable options for our teachers, students, Library Statement. (2020). Public vendors to find mutually agreed-on ways and our communities. Stay safe! statement: Fair Use & Emergency Re- to expand existing access to support social mote Teaching & Research. Retrieved distancing for instruction and research. References from https://docs.google.com/docu- Individual lawyer-librarians such as AAP. (2020). COVID-19 Response. ment/d/10baTITJbFRh7D6dHVVvfgiG- the University of Minnesota’s Nancy Association of American Publishers. P2zqaMvm0EHHZYf2cBRk/mobilebasic. Sims, University of Illinois’ Sara Ben- Retrieved from https://publishers.org/ Taylor and Francis. (2020). son, and Harvard’s Copyright Advisor aap-news/covid-19-response/. COVID-19: Novel coronavirus content Kyle Courtney have blogged, podcasted, American Alliance of Museums. to free access. Retrieved from https:// and offered webinars about the way that (2020). Using digital platforms to remain taylorandfrancis.com/coronavirus/. copyright law supports public service. connected to audiences during closures. Yorio, K. (2020). A crisis: as in Courtney calls these copyright exceptions Retrieved from https://www.aam-us.org/ school closures due to coronavirus-jus- “library superpowers” that allow librari- programs/about-museums/using-digi- tifies fair use, says librarians. School ans to respond to this crisis in ways that tal-platforms-to-remain-connected-to-au- Library Journal. Retrieved from https:// support their statutorily supported role as diences-during-quarantines/. www.slj.com/?detailStory=librari- stewards of access for the communities Collins, P. (2020). Getting your course ans-address-copyright-concerns-ar- they serve. Individually and collectively, online during COVID-19. University of gue-fair-use-applies-amid-academic-clo- libraries have embraced this role and Florida Libraries Guides: Copyright on sures-coronavirus-covid19. worked to scan materials even after physi- Campus. Retrieved from https://guides. cal buildings were closed and to build sys- uflib.ufl.edu/copyright. tems for interlibrary loan and scanning at continued on page 49 48 Against the Grain / April 2020 QUESTION: An academic publisher expressed concerns about the terms of use Questions & Answers asks, “How can publishers, libraries, for some of these materials, particularly from page 48 and other institutions make materials where an account must be created so that they control or hold available to users personal or institutional data is harvested a distance. One example of this approach during this crisis while still respecting from each user and in cases where a “free can be found in a recent webinar from the copyright’s scope and boundaries?” trial” is accompanied by an automatic Association of Southeastern Research renewal with immediate billing at unfa- ANSWER: To meet the needs of Libraries (ASERL) called “Yes You vorable terms. As everyone works to find educators, scholars, and others who need Can Scan That Textbook,” that offered the right balance of access and mission, a access to materials they can’t physically copyright guidance and practical tips for simple way to share is the Open COVID obtain, many institutions that either hold libraries. It is available on their archive pledge available at https://opencovid- physical resources or control copyright are at: http://www.aserl.org/archive/. pledge.org/. The pledge is a commitment looking for ways to facilitate access and to make copyright and related intellectual The through line for all of these ap- use. Unsurprisingly, different stakeholders property openly available for a limited proaches is the exigency and immediacy are exploring a variety of distinct approach- time. It can be implemented in a variety of the crisis and the inability of libraries, es. A tremendous number of publishers of ways including the suggested “Open educators, and scholars to rely on the tradi- have opened up access to some or all of COVID License” that makes all IP avail- tional mechanisms built into copyright and their materials, many of which have been able “until one year after WHO declares licensing such as physical access enabled collected at sites like Vendor Love in the the COVID-19 Pandemic to have ended.” by first sale or negotiated permission. The Time of COVID-19 (https://tinyurl.com/ Public Statement discussed above explicit- vendorsupportedaccess). Initially, this Digital libraries such as the Hathi ly notes that “we also encourage campuses access was granted for the duration of the Trust and Internet Archive have also to begin contemplating the longer-term current spring semester, but as more and worked to facilitate lawful access in ways needs this situation presents. While fair more institutions announce that social dis- that align with their individual missions. use is absolutely appropriate to support tancing will continue into the summer, the In April the Hathi Trust offered their the heightened demands presented by this duration of this limited access may change. Emergency Temporary Access Service emergency, if time periods extend further, (ETAS), “which will allow students, campuses will need to investigate and While this access has been critical for faculty, and staff from eligible member adopt solutions tailored for the long-term.” research and teaching, some users have continued on page 50

Against the Grain / April 2020 49 unlimited access to in-copyright works, reading aloud online. To clarify the ways Questions & Answers which does not follow the one-in-one-out in which fair use supports this practice, from page 49 limitations of even emerging systems like a group of copyright experts and educa- Controlled Digital Lending (controlled- tors have developed and shared a guide libraries to have online reading access to digitallending.org). to translating classroom practices and materials that are currently unavailable to taking advantages of new technologies them in their library collections.” In their While both Hathi’s ETAS and the In- to improve teaching and learning, reach, full statement, Hathi emphasizes that this ternet Archive’s NEL offer digital access and equity. (https://tinyurl.com/read- access would be limited to libraries that in a time-limited fashion as a response aloud-online) were experiencing “unexpected or invol- to an unprecedented crisis, the differing untary, temporary disruption to normal approaches reflect the culture of the re- The guide lays out the many trans- operations” and stressed that they were spective institutions. Popular responses formative purposes of reading aloud and offering what they called a “careful and may also suggest the central importance walks through specific practices that are measured approach to this service, con- of a library as a “steward of access” to a likely to fit within the ambit of fair use forming to fair use under U.S. copyright particular community and the values of such as “reading students in to” the virtual law, in order to help students, teachers, librarianship more broadly. classroom or students reading aloud to and researchers continue to do their vital QUESTION: A school librarian develop and demonstrate mastery. It also work.” The full statement and details asks, “Many of my teachers and fellow offers several examples of practices that about the program is available at: https:// librarians use reading aloud as a central are not clearly enabled including reading www.hathitrust.org/covid-19-response. component of our educational work. a textbook aloud as a way to replace Does copyright permit us to continue purchase of commercial course materials In contrast to this relatively mod- or running a public site unconnected to a erate approach, the Internet Archive this practice digitally during this global pandemic?” particular course that profits from adver- announced their National Emergency tising revenue. Library (NEL) at Archive.org/NEL in ANSWER: While the earlier discus- mid-March. The NEL suspends the sion in this column about openly-available While the statement was released in the waitlist for books available from the In- resources and educators’ reliance on fair wake of the transition to online learning ternet Archive “through June 30, 2020, use offers part of an answer, this question to facilitate health during a time of crisis, or the end of the U.S. national emergency, about reading aloud provides an excellent it is not presented as time-limited or even whichever is later.” The NEL also offers example of these issues in practice, as well primarily as a response to COVID-19. individual authors the ability to opt out as a model for a path forward. Reading For many students with disabilities, facing by sending an email to with “National Emergency Library many authors and publishers have explic- digital divide, or otherwise marginalized Removal Request” as the subject line. itly stated their support for reading aloud in our society, it is always an emergency. digitally during COVID-19. In a moment of global crisis, aggressive Some libraries such as MIT enthusi- fair use and generous licensing can save astically endorsed this approach while Regardless of any formal statements the day, but publishers, librarians, and many publishers and authors decried it as from a rightsholder, reading aloud is also educators can and should be working to- “outright piracy.” Dialogue around NEL a practice that fits comfortably within the gether every day to be sure that we are all became so heated that threats of violence scope of fair use when done as a transfor- meeting our mission to teach, learn, and and intimidation forced IA to make their mative, noncommercial practice. Despite grow as a society. list of endorsers private. Criticism often that fact, many school librarians have centered around the fact that NEL is not expressed uncertainty or even outright affiliated with a physical library and offers disagreement with a fair use rationale for

50 Against the Grain / April 2020