NOTE: I'll be taking two weeks off, to speak at the Information Today Conference on the topic of my forthcoming book and to meet the deadlines on a couple of magazine articles. I'll be back on May 16.
REVIEW: THE LIBRARY'S LEGAL ANSWER BOOK
by Mary Minow and Tomas Lipinski. ALA, 2003. $48. 0-8389-0828-4. Reviewed by Marylaine Block
As an attorney, a former public library banch manager, and a current commissioner of a public library in California, Mary Minow knows library law from all sides. Her co-author is also dually qualified, with both a law degree and a doctorate in library and information science. When they talk about library law, you should plan on listening.
This is not to say that most librarians are going to sit down and read this book cover to cover (though if you're undertaking a thorough review of all of your library's written policies you should). It IS a book you're going to consult, and frequently. It is structured as a series of real legal questions many librarians are asking, and answers to them. It's helpful, of course, to think about these questions and answers ahead of time rather than waiting until someone hands you a subpoena.
As we all know, many legal questions are answered with a ringing "That depends" -- on definitions, on exact circumstances, on intent, on whether the library has legal immunity, on the case law, etc. The beauty of this book is that it covers all of those "it depends" factors.
For example, to the question about whether the fair use "Classroom Guidelines" limits on how much may be copied are legally enforceable, the authors explain in considerable detail that those guidelines are a floor, not a ceiling; that the guidelines are the negotiated agreement between a variety of interested parties and do not have the force of law; but that librarians who choose to go beyond the limits of those guidelines must do so only after applying the four-factor fair use test (which the authors had previously explained). Minow and Lipinski explain the exact wording of the laws, the legislative intent, and court cases where those laws were fleshed out by judicial interpretation of specific circumstances.
Among the topics explored fully in this book are copyright, the design and content of library web pages, the use of filters, the accessibility of digital resources for patrons with disabilities, the public use of meeting rooms, and professional liability issues. Some of the more than 200 intriguing questions answered and explained in depth here include:
May my library's web page include deep links?
Do patrons have a right to materials that are legal but inappropriate?
Can we use a tap on the shoulder approach to people accessing inappropriate internet content?
What are the Section 508 accessibility standards for digital information?
How does my library determine which adaptive equipment will satisfy our legal obligation?
Are my library's automated Internet history logs considered a public record that must be made available to the public on request?
How should the library treat displays or meetings that use hate speech?
Does a librarian have a legal duty to provide information that is accurate?
Can a librarian freely express an opinion in a book review, no matter how scathing?
Have there been any court cases on librarians' responsibility for children left at libraries, and if so, what have they ruled?
Is there any immunity for employers who give negative references that they believe are truthful?
Can library staff that work for the government participate in political campaigns?
Especially useful are the appendices, one of which is a handy chart that helps you determine whether a given work has passed into the public domain; another is a table of state library confidentiality statutes. Other chapters end with summaries of relevant court cases. Throughout, the book is illustrated with case studies that illustrate how the law is interpreted and applied.
The book is also richly documented with several hundred citations to legal journals, laws, and court cases, which you yourself may never read, but which will give your library's lawyer a good running start on any legal problems you may have to contend with.
But it's certainly best to avoid lawsuits in the first place, which is why the pertinent sections of this book should be consulted whenever library policies are being established or revised. People have taken libraries to court over issues that may never have occurred to you to worry about. This is also a book to draw on when acquainting your library board with the legal ramifications of proposed policies.
Of course any book will date rapidly, so though this one will be a key resource for librarians, Minow's web site, http://www.librarylaw.com, should also be a regular stopping point for breaking news and updates on library legal issues. Nonetheless, this book gives us reason to be profoundly grateful that librarian Mary Minow went on to get a law degree, and that lawyer Tomas Lipinski went on to get a library degree.
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InfoWorld: You obviously feel strongly as an artist about the need to protect fair use of content.
[John Perry] Barlow: We can't be creative without having access to other creative work. [If] I have to make sure that the rights are cleared every time I download something or somebody wants me to hear something, it's going to cut way back on what I hear, which is going to cut way back on my capacity to create. Imagine what it would be like to write a song if you'd never heard one. Fair use is essential. But it is under assault.
InfoWorld: Why is it a difficult proposition to make this case?
Barlow: It's a difficult proposition because the content industry has done a marvelously good job of getting people to believe that there's no difference between a song and a horse, whereas for me, if somebody's singing my song, I think that's great. They haven't stolen anything from me. If somebody rides off on my horse, I don't have anything and that is theft. Otherwise intelligent people think that there's no difference between stealing my horse and stealing my song.
[The content industry] has also managed to create the simplistic and basically fallacious notion that unless we strengthen dramatically the existing copyright [regime], that artists don't get paid anymore. First of all, artists aren't getting paid much now. Second, making the institutions that are robbing them blind even stronger is not going to assure [their] getting paid more. And it's going to make it very difficult for us to create economic [and] business models that would create a more interactive relationship with the audience, which would be good for us economically and good for us creatively.
John Perry Barlow, interviewed by Steve Gillmor in Infoworld, Jan. 24, 2003 http://www.infoworld.com/article/03/01/24/030124hnbarlow_1.html
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