In partnership with the Western New York Library Resources Council (WNYLRC), the Northern New York Library Network has retained the services of an attorney to offer members timely input on intellectual property, digital rights management, vendor contracts, first amendment, civil rights, employment law, and other legal issues that can impact library operations.
How does it work?
NNYLN member questions submitted to “Ask the Lawyer!” will be reviewed to determine suitability for the service. If you consent in the submission form to share your question with the public, the factual and legal research as well as the statutory and case law regarding your question may be posted on the service’s “Recently Asked Questions,” page. You can also direct that your question not be shared, in which case your submission and any correspondence shall be subject to attorney-client privilege, confidential among you, NNYLN, and the attorney.
How to submit?
Please keep in mind: the “Ask the Lawyer!” service is shared with NNYLN and WNYLRC, and is not legal representation of your organization. Always alert officers at your institution if a lawsuit is threatened, or if a matter is so specific or critical that your own institution’s attorney should be involved. And yes–you can always “Ask the Lawyer!,” if you don’t know if a particular issue hits that threshold! Please complete the form to initiate a response.
If you have documentation that would assist the attorney in answering your inquiry, you may upload files at the bottom of the form. Please note that the form cannot be saved and must be completed in one sitting.
Inquiries about this service should be sent to Meg Backus (firstname.lastname@example.org) or call (315) 265-1119.
About Our Attorney
The service is staffed by Buffalo attorney Stephanie (“Cole”) Adams, who first developed a deep connection to libraries working as a page, then clerk, at her hometown library in New Hartford, NY. Ms. Adams went on to work at the libraries of her Alma Maters, Hampshire College, and SUNY Buffalo School of Law. She served for over 10 years as the in-house counsel at Niagara University, in Niagara Falls, NY. An attorney admitted to practice in both the state and federal courts of New York, Ms. Adams has extensive experience with the issues confronting information professionals. Ms. Adams works closely with WNYLRC and other library Councils to craft useful replies to member library questions.
RAQs: Recently Asked Questions
ASK THE LAWYER! maintains Recently Asked Questions (RAQs), which are available here.
Ask the Lawyer Resources
Many questions on “Ask the Lawyer” relate 17 U.S. Code, Section 108, which carves out exceptions to infringement for certain library and archive-provided services, including:
- On-site patron copies
- Copies of book or article for inter-library loan
- Preservation copies
- Format transfer due to obsolescence.
Different and distinct from Fair Use, Section 108 is a critical protection for librarians and archivists. It is relied on every day for essential services.
Because 108 is so fundamental, many government agencies, trade associations and institutions maintain excellent guidance on it. Whenever deeper background in a question might be helpful, “Ask the Lawyer” will link to those resources.
- Cornell Law School maintains a copy of the law.
- The Copyright Office maintains Circular 21, which breaks down this important provision in great detail. This guide is helpful for policy creation.
- Copyright Regulations prescribe the precise language that must be posted to benefit from 108; this guidance is essential for qualifying for the exemption.
- The American Library Association breaks down the interaction between 108 and the Digital Millennium Copyright Act (DMCA), which created new provisions related to (at the time) emerging technologies.
- The American Association of Law Librarians maintains an excellent guide on the extent of access allowed by both 108, and 107 (Fair Use). This shows of 107 and 108 are distinct, but can be combined to enhance access.
- To assist in assessing if 108 can apply to providing copies to a particular patron, Columbia maintains a very helpful analysis checklist.
Before assessing the facts under 108’s 9 different sub-sections (which address the different types of copying are allowed, and dis-allowed), Section 108 requires that your institution:
- Be open to the public;
- Reliably include a 108 notice, as set by regulation, on any 108-provided copy;
- Prominently display a warning of copyright where orders are accepted and include a copyright warning on order form(s);
- Post a copyright notice at all publicly accessible copying equipment.
If these factors are not present, your library or archives might not be able to claim a 108 exemption, even if the other criteria (such as searching for a commercially available copy, or confirming that a format is obsolete) are met.
To ensure your institution reliably qualifies for 108, it is advisable that your library or archives have a Section 108 compliance policy, and that the policy and its related practices are annually reviewed.
Handbook for Library Trustees of New York State; 2015 Edition; Revised October 2016 By Jerry Nichols, Palmer School of Library and Information Science, Long Island University, Brookville, New York; and Rebekkah Smith Aldrich, Mid-Hudson Library System, Poughkeepsie, NY; with the assistance of the Public Library System Directors Organization of New York, Library Trustees Association of New York State, New York State Library and New York Library Association: http://www.nysl.nysed.gov/libdev/trustees/handbook/index.html
Library Trustees Association Members: Get Questions Answered: http://librarytrustees.org/blog/2014/03/lta-introduces-a-new-service-for-members/