Tag Archives: Legislation

Affordable College Textbook Act Reintroduced in Congress

Today, US Senators Durbin (D-IL), King (I-ME), Smith (D-MN) and Sinema (D-AZ) and US Representative Neguse (D-CO) re-introduced the Affordable College Textbook Act.  The bill would create a grant program to support projects on open textbooks.  The current bill is largely similar to the version introduced in the last Congress with a few key changes including new language to improve accessibility of materials created under the bill for students with disabilities and amending the Higher Education Act to require publishers to disclose whether material is an open educational resource (OER).

ARL, along with ACRL, SPARC, Creative Commons, US PIRG and ten other organizations currently support this bill.  ARL urges Congress to pass this bill to help address the high cost of college textbooks, which can be a barrier to education.

Will This Be the Congress to Finally Pass ECPA Reform?

Today, July 27, 2017, Senators Lee (R-UT) and Leahy (D-VT) introduced the ECPA Modernization Act of 2017, a bill to reform the Electronic Communications Privacy Act (ECPA). ECPA is a law from 1986 governing privacy for online communications and, not surprisingly, has long been in need of reform. A law written more than thirty years ago clearly did not conceive of the modern digital age.

Congress has seriously considered reform to rectify the absurdities of the 1986 law that denies individuals a reasonable expectation of privacy for the content of their online communications. Earlier this year, in January 2017, Congressmen Yoder (R-KS) and Polis (D-CO) reintroduced the House version of ECPA reform, the Email Privacy Act (H.R. 387), a bill that unanimously passed the House of Representatives in 2016.

ECPA was written in an era in which few individuals owned computers, most did not use e-mail, social media services like Facebook did not exist, and “the cloud” had not yet transformed the way people communicate and work. It therefore reflects a poor understanding of the digital age and has clearly not kept pace with evolving technologies. ECPA allows the government to seize online documents and communications older than 180 days without a warrant, leading to an absurdity that grants greater protection to hard copy documents than to digital communications.

The ECPA Modernization Act of 2017 would rectify this absurdity and restore Fourth Amendment protections to the digital world, requiring a warrant for the content of online communications just as a warrant would be required for a copy of a document stored in a file cabinet. It would also ensure that the government provides notification to users after it has received content after a warrant has been executed. These reforms are greatly needed in our modern era where everyday communications take place online.

ARL applauds Senators Lee (R-UT) and Leahy (D-VT) for their leadership in promoting much needed ECPA reform in the Senate and urges Congress to quickly pass these bills.

Celebrating 20 Years of Internet Free Speech

Today marks the 20th anniversary of the Supreme Court of the United States’ decision in Reno v. ACLU, a case that determined that certain provisions of the Communication Decency Act (CDA) – which sought to govern speech online – violated the right to free speech. This decision was a landmark decision, the Court’s first about the Internet and applied the same freedom of speech rules for print to speech on the Internet (both of which are more open than TV or radio broadcasts).

The CDA was designed to protect children from “obscene or indecent” content. However, because of the breadth and vagueness of the provisions, the Court found that the CDA could also suppress speech to adults:

We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.

The Court found that less restrictive alternatives could be used to achieve the same goal of reducing explicit content to children. The CDA, however, resulted in “an unnecessarily broad suppression of speech addressed to adults.”

Reno v. ACLU is a decision that gave us the Internet as we know it today. One that is free and open, a modern town square. Celebrating this landmark ruling brings to mind a number of related issues that are at the forefront of discussions today. While Reno v. ACLU gave us a ruling that established that freedom of speech applies online, we are still fighting for strong net neutrality rules that keeps the Internet open to all and does not favor one speech over another. While the Supreme Court’s Reno v. ACLU decision applied the same First Amendment protections to online speech as print, we are still fighting for reforms to the Electronic Communication Privacy Act to ensure that the same Fourth Amendment protections that apply to print apply to online communications.

Let’s celebrate 20 years of Reno v. ACLU, but remember that there is still work to be done to ensure that Constitutional rights apply with the same force in the digital world as it did in an analog one.

ARL Applauds Approval of Email Privacy Act, Urges Swift Senate Action

The Association of Research Libraries (ARL) applauds the approval of the Email Privacy Act by the US House of Representatives.  The House passed the bill with a voice vote, moving this critical piece of legislation one step toward ensuring that the outdated Electronic Communications Privacy Act (ECPA) is reformed to keep pace with the digital age. The House previously passed the Email Privacy Act in a unanimous vote during the last Congress.

House passage of the Email Privacy Act signals an important recognition that Fourth Amendment protections extend to online communications. As libraries and universities move services into the cloud and more communications take place online, ensuring the protection of information long considered to be private—including what individuals are reading or researching—is essential.

ARL has long supported reform of ECPA to ensure that the Fourth Amendment applies to digital communications and urges the Senate to quickly move forward to pass this bill.

Will Congress Finally Pass ECPA Reform?

The Electronic Communications Privacy Act (ECPA) is a law from 1986 governing privacy for online communications and has long been in need of reform. For the last several years, Congress has seriously considered reform to rectify the deficiencies of this law that denies individuals a reasonable expectation of privacy for the content of their online communications. On January 10, 2017, Congressmen Yoder (R-KS) and Polis (D-CO) reintroduced the Email Privacy Act (H.R. 387) for the 115th Congress, a bill that unanimously passed the House of Representatives last year.

ECPA was written in an era in which few individuals owned computers, most did not use e-mail, services like Facebook did not exist, and “the cloud” had not yet transformed the way people communicate and work. It reflects a poor understanding of the digital age and has clearly not kept pace with evolving technologies. ECPA allows the government to seize online documents and communications older than 180 days without a warrant, leading to an absurdity that grants greater protection to hard copy documents than to digital communications.

The Email Privacy Act would rectify this absurdity and restore Fourth Amendment protections to the digital world by requiring a warrant for content, just as a warrant would be required for a copy of a document stored in a file cabinet. The bill has enjoyed overwhelming bipartisan, with a super majority of the House of Representatives co-sponsoring the bill in the last Congress, before its unanimous passage.

ARL applauds the reintroduction of the Email Privacy Act and urges Congress to move quickly to pass ECPA reform and restore Fourth Amendment protections for online communications.

 

Civil Agencies, Law Enforcement Officials Threaten Meaningful ECPA Reform

On May 24, 2016, ARL joined a coalition of civil society organizations, companies and trade associations in a letter to Senate Judiciary Committee Chairman Grassley and Ranking Member Leahy supporting the Email Privacy Act (H.R. 699) as passed unanimously by the House of Representatives on April 26, 2016.  While the House-passed bill did not make all necessary reforms to the Electronic Communications Privacy Act (ECPA), it represents a big step forward by imposing a warrant-for-content rule.  Importantly, the H.R. 699 did not include a civil agency carveout, ensuring that civil agencies do not have warrantless access to online communications such as e-mails or documents stored in the cloud.

The Electronic Communications Privacy Act (ECPA) is a law from 1986 governing privacy for online communications and has long been in need of reform. ECPA was written in an era in which few individuals owned computers, most did not use e-mail, services like Facebook did not exist, and “the cloud” had not yet transformed the way people communicate and work. It reflects a poor understanding of the digital age and has clearly not kept pace with evolving technologies. ECPA allows the government to seize online documents and communications older than 180 days without a warrant, leading to an absurdity that grants greater protection to hard copy documents than to digital communication.  Essentially, ECPA reform seeks to ensure that the 4th Amendment applies equally to the digital age as it does to the analog world, requiring a warrant for the content of documents and communications.

Civil agencies, primarily the Securities and Exchange Commission (SEC), have repeatedly sought an exemption from the ECPA reforms and continue to do so as the Senate Judiciary Committee considers a vote.  These agencies would like to compel third-party providers to disclose the content of personal communications without a warrant, increasing their power beyond the existing tools they have at their disposal such as subpoenas.   Such an exemption threatens the reasonable expectation of privacy.

In addition to civil agencies seeking carveouts, law enforcement officials would like to broaden the emergency exceptions language in the ECPA reform bill despite the fact that current law already permits service providers to release information where there is an emergency involving the danger of death or serious physical injury.  Expansion of existing law in this area could be subject to abuse by government and law enforcement agencies who may try to overreach to access data.

ECPA is in serious need of reform and the Email Privacy Act passed last month by the House of Representatives–without modification or amendment–represents the appropriate vehicle to move reform forward.

ARL Celebrates House Passage of Email Privacy Act; Urges Senate to Pass Quickly

*Cross-posted from ARL News*

The Association of Research Libraries (ARL) applauds today’s 419-0 vote in the US House of Representatives passing the Email Privacy Act (H.R. 699), a bill that updates the Electronic Communications Privacy Act (ECPA). Passed in 1986, ECPA has not kept pace with evolving technologies and has led to an absurdity that affords greater protection to hard-copy documents than digital communications.

House passage of the Email Privacy Act today signals an important recognition that Fourth Amendment protections extend to online communications. As libraries and universities move services into the cloud and more communications take place online, ensuring the protection of information long considered to be private—including what individuals are reading or researching—is essential.

“Reform of ECPA is long overdue and today’s vote in the US House of Representatives demonstrates overwhelming support for bringing privacy laws in line with the digital age,” said ARL president Larry Alford. “The Email Privacy Act will restore a reasonable expectation of privacy in online communications, requiring the government to obtain a warrant for content, and is a key step forward in updating a 30-year-old law governing digital privacy. ARL applauds today’s vote and urges the Senate to quickly move forward to pass this bill.”

The Senate version of the bill, the Electronic Communications Privacy Act Amendments Act of 2015 (S. 356), has enjoyed broad, bipartisan support. The Association of Research Libraries strongly encourages the Senate to pass this legislation soon.

ARL Joins More than 50 Organizations and Companies Supporting Manager’s Substitute on ECPA Reform

On April 13, 2016, ARL joined a coalition of more than 50 civil society organizations, trade associations and companies in writing to support the Manager’s Substitute Amendment to the Email Privacy Act (H.R. 699), a bill to update the Electronic Communications Privacy Act (ECPA), in advance of the bill’s markup.  ECPA, a law passed in 1986, has not kept pace with evolving technology and allows government agencies to access private communications stored in the “cloud” without a warrant.  ARL has long supported reform of this outdated law to ensure that Fourth Amendment protections extend to the digital world.

The Email Privacy Act has enjoyed broad support with 314 co-sponsors.  While the coalition letter supports the Manager’s Substitute, it notes:

The Manager’s Substitute does not achieve all of the reforms we had hoped for. Indeed, it removes key provisions of the proposed bill, such as the section requiring notice from the government to the customer when a warrant is served, which are necessary to protect users. However, it does impose a warrant-for-content rule with limited exceptions. We are particularly pleased that the Manager’s Substitute does not carve out civil agencies from the warrant requirement, which would have expanded government surveillance power and undermined the very purpose of the bill.

Markup of the bill will happen in the House Judiciary Committee today, April 13, 2016 at 10:30 a.m.

The time for ECPA reform is long overdue and while the Manager’s Substitute rolls back some of the positive aspects of the original bill, it still represents a step forward in protecting privacy in the digital age.

Senate Judiciary Committee Hearing on ECPA Reform

Today, September 16, 2015, the Senate Judiciary Committee will host a hearing on “Reforming the Electronic Communications Privacy Act.”  The Electronic Communications Privacy Act (ECPA) was passed in 1986 and is badly in need of reform.  The law has not kept pace with evolving technologies and denies important privacy protections for electronic communications, allowing agencies to access documents or communications stored online that are older than 180 days without a warrant.  This outdated law has led to an absurdity that affords greater protection to hard copy documents than digital communication.

As libraries and universities move services into the cloud and more communications take place online, it is critical that Fourth Amendment protect information long considered to be private—including what individuals are reading or researching, and to whom they are talking—even in the digital world. The growth of the Internet has launched new forms of communications and changed the way individuals interact since ECPA’s enactment in 1986. ECPA reform would require warrant for content, extending Fourth Amendment protections to online documents.

The ECPA reform bill in the House of Representatives, known as the Email Privacy Act and introduced by Representatives Yoder (R-KS) and Polis (D-CO) currently has 292 co-sponsors, representing an overwhelming majority.   The Senate version, known as the Electronic Communications Privacy Act Amendments Act also has bipartisan support, was introduced by Senators Lee (R-UT) and Leahy (D-VT) and currently has 23 co-sponsors.  Today, the full Senate Judiciary Committee will consider what reforms to ECPA are necessary, with two panels.  The first panel will consist of government witnesses from the Department of Justice, Securities and Exchange Commission and the Federal Trade Commission.  The second panel has four witnesses representing the Tennessee Bureau of Investigation, Google, the Center for Democracy and Technology and BSA | The Software Alliance.

Twenty-nine years after ECPA’s passage, reform is long overdue.  Congress should bring these bills to a vote and pass ECPA reform to ensure that 4th Amendment rights are preserved in today’s digital world.  Hopefully, today’s Senate hearing is a step toward moving ECPA reform forward.

 

Thoughts on Fair Use and the Copyright Office Report/Proposal on Mass Digitization

On June 4, 2015 the Copyright Office released its Report on Orphan Works and Mass Digitization. Previous coverage of the orphan works section of the report is available here and the Library Copyright Alliance’s response to the report is available here. This post focuses on the section of the report covering mass digitization and lays out concerns with the report’s proposal and treatment of fair use. The Copyright Office’s report proposes an extended collective licensing (ECL) system, and has issued a Notice of Inquiry requesting public comments, due on August 10, 2015.

Copyright Office Report and Proposed ECL Program

During the March 2014 orphan works roundtables, the general view was that ECL was not a workable solution and there was a lack of interest in pursuing this approach. Despite the opposition to or wariness of ECL, the Copyright Office is nonetheless recommending ECL.

The report suggests that mass digitization cannot be accomplished with the exception of narrow circumstances. The report acknowledges that courts have concluded that mass digitization for full-text search and access for the print-disabled are protected by fair use, but argue that these cases “do not extend to the wider dissemination of copyrighted works without permission or compensation.”

The Copyright Office’s report also discusses voluntary stakeholder agreements, concluding that such arrangements would not protect users from infringement claims by copyright owners that are not part of the agreement.

The Copyright Office proposes a pilot ECL program, limited to specific categories of works. The report suggests “that ECL makes the most sense for the following works: (1) literary works; (2) pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to literary works; and (3) photographs.” The proposed program would be limited to uses “undertaken for nonprofit educational or research purposes and without any purpose of direct or indirect commercial advantage.” While the proposal would allow a for-profit entity to use the program, “it would not be permitted to generate revenue from the collection by, for example, displaying advertisements or charging fees.” According to the proposal, Copyright Office would be tasked with approving collective management organizations (CMO) as part of the ECL. The approved CMO would represent all rights holders, except for those that affirmatively opt-out. The proposal suggests that the proposed Google Books settlement can provide an example of how license agreements can be structured.

In terms of royalty payments, the report states that, “while a CMO should be permitted to deduct fees from the license payments it collects, such deductions should be limited to amounts reasonably necessary to cover specified operational costs.” Where a CMO fails to locate a rights holder who is owed royalties within a specified time period, the CMO should transfer the funds to a trust account. If the funds in the trust account remain unclaimed after three years, the CMO could deduct a reasonable fee and then distribute the balance to educational or literacy based charities.

The Copyright Office’s report does suggest a fair use “savings clause providing that nothing in the statute is intended to affect the scope of fair use.”

Mass Digitization and Fair Use

Unfortunately, notwithstanding the inclusion of a fair use savings clause, the report seems to mischaracterize the importance of fair use in many mass digitization projects. The report asserts that the ECL proposal is intended for “activity for which there is broad agreement that no colorable fair use claim exists: providing digital access to copyrighted works in their entirety.” The Copyright Office continues:

To the extent it could be argued that any individual aspect of a mass digitization project might by itself qualify as fair use (e.g., the underlying digital copying), we would expect that view to be reflected in the overall license fee negotiated between the CMO and the user. That is, where the parties agree that a particular use would likely be deemed fair under established law, the portion of the license fee pertaining to that activity would likely be at or near zero (emphasis added).

This paragraph raises a number of concerns. First, it assumes that the parties must agree that a use is fair and implies that a user must first discuss and negotiate with the CMO. Fair use is a right and a user conducting activities that are fair uses need not engage in any prior discussions or negotiations with rights holders. While there may be circumstances in which a user wishes to first notify or discuss a particular use with the rights holder, he or she is not required to do so.

Furthermore, even with a fair use savings clause, parties may not agree that a use is fair use. In the Authors Guild v. HathiTrust litigation, the Authors Guild asserted that where HathiTrust’s activities went beyond the scope of what is permitted under Section 108, the Copyright Act’s specific exception for libraries and archives (which contains a fair use savings clause), they could not be considered fair use. While the Second Circuit dismissed this argument in a footnote to its opinion, other plaintiffs may try to make similar arguments.

Moreover, in situations where precedent strongly favors an understanding that a particular use would be considered a fair use , the rights holders might argue that the precedent is wrongly decided. Some rights holders argue that the fair use right has been applied too broadly by the courts. During the orphan works roundtables, one participant compared recent fair use case law to Plessy v. Ferguson, the 1892 Supreme Court case that upheld the “separate but equal” doctrine until being overturned by Brown v. Board of Education in 1954. Relatedly, during the orphan works roundtables, there were repeated suggestions that there were only two cases—HathiTrust and Google Books, both of which were on appeal at the time of the roundtables—that supported mass digitization and could be overturned. As Jonathan Band pointed out at the roundtable, however, various other Circuit Courts of Appeals cases also support mass digitization. He noted that HathiTrust and Google Books were based on earlier cases such as Kelly v. Arriba Soft, Perfect Ten v. Amazon and A.V. v. iParadigms.

Finally, rights holders may attempt to distinguish precedent on the basis of minor factual differences.

Special Collections

It appears that the Copyright Office is interested pursuing an ECL pilot program for the very types of collections that libraries already digitize and allow access to under fair use. The report notes, “The Office is particularly interested in stakeholder views regarding examples of mass digitization projects that may be appropriate for licensing under the proposed pilot. These comments may include (but need not be limited to) descriptions of particular collections of copyrighted works (e.g., Depression-era photographs) that prospective users may wish to digitize and make available through ECL.”

Digitizing a collection of Depression-era photographs seems to be a great example of what would likely be fair use. This example suggests a special collection of works that are primarily orphan works. It is unlikely that the rights holders for such works could be identified and located. These works are not likely to be exploited commercially and digitizing them and making them accessible online would therefore not harm the original market for the works. Digitization projects involving special collections often include enhancements that make the collection more useful, such as the inclusion of metadata.

The ARL Code of Best Practices in Fair Use for Academic and Research Libraries sets forth limitations and enhancements for a library’s fair use case in the context of digitizing special collections and making them electronically accessible:

PRINCIPLE:

It is fair use to create digital versions of a library’s special collections and archives and to make these versions electronically accessible in appropriate contexts.

LIMITATIONS:

  • Providing access to published works that are available in unused copies on the commercial market at reasonable prices should be undertaken only with careful considerations, if at all. To the extent that the copy of such a work in a particular collection is unique (e.g., contains marginalia or other unique markings or characteristics), access to unique aspects of the copy will be supportable under fair use. The presence of non-unique copies in a special collection can be indicated by descriptive entries without implicating copyright.
  • Where digitized special collections are posted online, reasonable steps should be taken to limit access to material likely to contain damaging or sensitive private information.
  • Full attribution, in a form satisfactory to scholars in the field, should be provided for all special collection items made available online, to the extent it is reasonably possible to do so.

ENHANCEMENTS:

  • The fair use case will be even stronger where items to be digitized consist largely of works, such as personal photographs, correspondence, or ephemera, whose owners are not exploiting the material commercially and likely could not be located to seek permission for new uses.
  • Libraries should consider taking technological steps, reasonable in light of both the nature of the material and of institutional capabilities, to prevent downloading of digital files by users, or else to limit the quality of files to what is appropriate to the use.
  • Libraries should also provide copyright owners with a simple tool for registering objections to online use, and respond to such objections promptly.
  • Subject to the considerations outlined above, a special collection should be digitized in its entirety, and presented as a cohesive collection whenever possible.
  • Adding criticism, commentary, rich metadata, and other additional value and context to the collection will strengthen the fair use case.
  • The fair use case will be stronger when the availability of the material is appropriately publicized to scholars in the field and other persons likely to be especially interested.

A number of libraries rely on fair use in the digitization of their special collections. For example, Duke University digitized a collection of historic TV commercials, called adViews. While Duke secured agreements from many of the rights holders of the commercials, it also relied on fair use because of the impossibility of identifying all rights holders of TV commercials. As is the case with many special collections, Duke enhanced its fair use position by adding additional videos to the collection featuring executives talking about TV advertising in the early 1960s as well as faculty members discussing the ways they used the materials in teaching.

Another great example is New York Public Library’s (NYPL) digitization of a collection of materials from the 1939 New York World’s Fair. The collection included records, documents, promotional photographs and other ephemera. As detailed by this Fair Use Week guest blog post by Greg Cram, Associate Director of Copyright and Information Policy for New York Public Library, it was extremely difficult to determine whether the works were in copyright and a good-faith search for rights holders “was time-consuming and, ultimately, fruitless.” Relying, in part, on statements and codes of best practices, as well as views of academics, NYPL conducted a fair use analysis and decided to “move forward with digitization of portions of the collection after balancing the education benefit of the undertaking against the risk that a rights holder might subsequently surface” and posted selections online. NYPL created a free iPad application to feature the digitized content and this application was named one of Apple’s “Top Education Apps” of 2011.

These are just two of the many examples where mass digitization projects have relied on fair use. Special collections are a prime example where fair use may provide a strong basis for undertaking these projects. In both of the cases above, it does not appear that rights holders have contacted the institutions to complain or ask that they limit the uses of the digitized works.

In sum, the Copyright Office’s proposed ECL pilot program is inappropriate for special collections.