ALA is taking part in “Copyright Week,” a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.
Today’s theme—”You bought it, you own it”—reflects the growing concern that consumers are unable to use the physical goods they have purchased in ways that were seemingly lawful. Their use of the purchased item may be restricted by a license agreement linked to the software that makes the product run and/or by digital rights management (DRM) technology that resides inside the physical item and makes it work (or not).
Strange things can happen when this occurs. IFixIt, one of the sponsors of Copyright Week, is a group of folks who like to tinker. They want to repair things that they have purchased like their computers, tractors, and cameras without violating a software license agreement and/or by DRM. I love IFixIt because they report on some ludicrous examples that make one say “you are kidding me!”
Here’s one—the automated cat litter self-cleaning product that includes an RFID tag on the cleaner cartridge so you can never refill the cartridge with any other cleaning solution of your choice, even when plain old water actually works better than the cleaning solution. Thus, the consumer with the litter box is forever linked to the manufacturer who sells the only workable cleaning cartridges.
Libraries have a “you bought it, you own it” problem too. A growing concern is acquiring information resources (including media) that are only available via consumer non-negotiated license agreements. You must accept the license in order to download the product. You cannot negotiate the license agreement—you have to “take it or leave it.” I don’t know if there is a law that ensures that people can fix things, but there is a law that says libraries can do certain things with information resources that consumers cannot without the prior authorization of the rights holder—things like preservation, archiving and interlibrary loan. Libraries (and archives) have a privileged position in the copyright law, because we are the custodians of content.
Unfortunately, consumer-only license agreements do not work for libraries. When you acquire a song from iTunes—and some songs are only available in a digital format from iTunes—you click on the agreement in order to download the song. When librarians read the license, they discover that the manufacturer or rights holder has restricted the use of the song to “personal, non-commercial use.” If one abides by the license, the song cannot be used for any library use.
This problem could be easily resolved if an institutional or library license was available, and people have tried to make this happen. Music librarians have been in negotiations with iTunes, the recording companies, and with the copyright clearinghouses, but thus far no dice.
People have varying opinions on how to address this issue—ignoring the consumer license agreement to not buying the music at all. Another idea is to “fix” the license agreement. If you won’t give us a library license, then we will have to take matters into our hands and write a revised license. Change the terms of the license to reflect the copyright exceptions for libraries in the copyright law and send the revised license to iTunes. You will likely never hear back from iTunes, and even if you do, you have now found another person with whom to negotiate. (I am not a lawyer, and I am not offering legal advice).
One helpful and absolutely lawful action is asking librarians to collect examples of these screw-ups and email to me (crussell[at]alawash[dot]org). We always need examples of the kinds of issues libraries are running up against. We need to be able to remind manufacturers and rights holders that there is a library market. Is it a market that will make or break the company profits? No, but actual data will inform policymakers, and we can more effectively complain!