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Want to double-down on fixing the Copyright Law? Fix ELUAs.

Copyright Week banner logo from the Electronic Frontier Foundation.

Image from the Electronic Frontier Foundation. https://www.eff.org/copyrightweek

The American Library Association 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.

Oh, EULAs! End-user license agreements, that is. Don’t you hate them? In addition to causing a lot of confusion for consumers and forcing them to give up fair use rights (as explained here), libraries and educational institutions have troubles as well. A growing number of resources purchased by libraries for their collections are only available in digital formats from consumer entertainment sites like iTunes. If the library buys a song from iTunes, under the EULA, all of the exceptions and limitations to copyright that libraries enjoy under the federal law do not exist. Instead, the use of the resource is limited to “personal, non-commercial use.” Libraries cannot lend the resource (Section 109), they cannot preserve or replace the resource (Section 108), they cannot make an accessible copy for people with disabilities (Section 121) and if used in the classroom even for face-to-face teaching (Section 110), educators cannot publicly perform the work. The only thing that can be done with the EULA imprisoned resource is add it to the collection!

The Music Library Association led an effort to address licensing and ownership issues of download-only music back in 2013. Recognizing that it would be unlikely that Congress would pass an amendment that would ensure that exceptions cannot be waived by licenses, the music librarians met with rights holders and music collecting societies to see if accommodations for non-profit, cultural institutions like libraries could be made. Libraries suggested an institutional license with a higher purchase price that would allow for library uses, but no dice.

Since librarians feel a responsibility to demonstrate ethical copyright behavior, most are unwilling to do the unthinkable – ignore the license. Is fair use an option? Probably not because the license terms circumvent fair use rights as well. More than a few librarians have contacted staff at Amazon, Netflix, and iTunes, and, more often than not, the staff person says “we don’t care” what the library does with the resource other than making infringing copies. One could assume that the staff person has the authority to make that decision, document the conversation, and move forward. (I would.) Educators unaware of the license implications when buying consumer licensed resources for classroom and research purposes, end up using the materials just as they would any other resource. Let them remained uninformed. Let behavior demonstrate what is reasonable. It is not acceptable that willing library buyers cannot do what libraries do because of a click-on license.

About Carrie Russell

Carrie Russell is the Director of the Program on Public Access to Information in the Office for Information Technology Policy (OITP). Her portfolio includes copyright, international copyright, accessibility, e-books and other public policy issues. She has a MLIS from the University of Wisconsin-Milwaukee and a MA in media arts from the University of Arizona. She can be reached via e-mail at crussell@alawash.org.

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