Public Libraries & Copyright Enforcement

There has been an ongoing discussion on the PUBLIB listserv for the last week or so. It started off with a short question:

A patron checks out 20 music CDs. Proceeds to rip them to his laptop while in the library. Then returns them.
What should I have done? Is that copyright violation? Should I have told him? Stopped him?

What the thread has evolved into is a strange journey through the psyche of the public librarians around the country. What I thought was pretty simply slam dunk of an answer (“It’s a copyright violation happening right in front of you. You should have stopped it and informed the patron what they were doing was illegal”) has stirred what I can only imagine (and hope) are fringe perspectives. It ranges from the absurd idea that patron privacy is ABSOLUTE even in the face of overt illegal activities to screeds against corporations and their profit making with some excuse making arguments between regarding the value of staff confrontation with patrons (a non-starter) and the milquetoast “We don’t actually KNOW what they are going to do with the CDs after they rip them” shrug-of-the-shoulders (extraordinarily weak looking the other way mentality).

While I’m relieved that there were other librarians on the list who rebutted these suppositions, there was a very dismayed “WTF” moment to the whole thread. The casual manner in which peers were willing to set aside the law in the face of an overt copyright violation is rather disheartening as society moves towards another intellectual property turning point. I’m not suggesting that librarians kick in doors or engage in surveillance of patrons at their homes, but the profession can do its part in educating the public as to the current copyright law and what it means for them.

Lest we forget that these patrons are also voters, represented by their elected officials on both the state and national level. If they really have a problem with the current copyright laws, then they are well positioned to take actions on changing those laws. It would be rightfully cynical to think that one person doesn’t have a shot at changing the overall status quo, especially not in the face the deep pockets of the entertainment industry. But librarians can foster those people at the personal level with a greater eye towards a longer term cultural attitude change. It will not be an instant gratification moment that we have become inclined towards, but something on a longer term over generations.

The people who cast aside the profit motive forget that they benefit from it in indirect ways. It can be through sales tax collected locally on purchased works; the companies that employ people in their area to develop, make, manufacture, and sell those items; and let’s not forget those corporate sponsorships for library programs and conferences that the profession likes to have every year. It is the profit motive that facilitates the sale of content to libraries in the first place. If those companies feel that libraries are hurting their bottom line by not defending their intellectual content (and they exist), then they are going to be less motivated to sell content to us or attach an increasing amount of strings (such as DRM) to the product. 

The fact of the matter is that being lax on copyright does not get a chair at the table the next time it becomes a priority to change. It weakens our standing within that conversation to be turning a blind eye or offering up weak rationales for not educating the public or taking action when warranted. It is true that we cannot control what patrons do beyond our front door, but librarians can act on what they see and hear on the inside. The smug arrogance of a ‘sticking it to the man’ now costs the institution in the form of reputation and credibility in the future.

How would you answer this question? What are your thoughts on it?

33 thoughts on “Public Libraries & Copyright Enforcement

  1. I’m not including my name because I was so completely appalled that this happened. A patron found some clip art she liked online, and asked a reference librarian to help her copy it to a Word document on a library computer. I happened to be walking by, and said, “We can’t do that! It’s copyright infringement!” To which the other librarian replied, “Well, there’s no copyright notice actually *on* it …” and looked at me like I was insane for even thinking of it.

    If I saw a patron ripping CDs in the library, I would tell them that it’s illegal and we could not countenance their actions. Just as I told a patron that I couldn’t help him copy a photo so his fiancee could see a ring he wanted to buy, but that I would show him how to copy and paste the link.

    C’mon, folks, this stuff should be a no-brainer!

  2. We used to have a check-out limit of 5 cds per patron because the cds were kept behind the desk. One night a patron wanted to check out a whole stack of cds right as we were closing and the staff was refusing because of our limit. I decided to take over and check them all out to get the line moving again. As I was helping him, he told me he was a teacher and don’t worry he would bring them all back tomorrow because he was just going to rip them. I told him that was illegal and he shouldn’t be telling me about it but I still checked the cds out to him.

    Personally I try not to pay attention what people are doing in the library but if I see them ripping library cds or photocopying an entire book I would probably inform them that it is illegal. I don’t think we have an official policy regarding possible violations of copyright on library property.

  3. Lots of the comments on the publib thread seem to be conflating criminal and civil law. Viewing kiddie porn on the computer is a criminal act for which one could be arrested. Same with damaging materials.

    Copyright is a civil matter. There isn’t guilty or not guilty. The only way copyright can be enforced is by the party who claims to be the victim. And you won’t be arrested for violating civil law.

    I’m not a lawyer, but I don’t think anyone but a judge can say for sure if what that person was doing was illegal. It sure looks like an infringement of copyright. But I am not comfortable with all the legal assertions going on in that thread. I think a copyright lawyer would disagree with a lot of stuff being said there.

    And the library’s lawyer is really the only one who can answer the original question.

  4. I’ve been in the same situation as Sarah Mae. I was checking out a patron with a stack of music CDs, and told him, as is my habit, the date on which they were due back. “Oh, I’ll have them back by tomorrow,” was the reply. I also have one very persistent who, every few months, asks me how to rip a CD to her computer. I know she has a teenager at home, so I’m sure she’ll learn soon enough, but I’ve told her point blank that I can’t show her how to infringe copyright. It didn’t even bother her.

    In my limited experience, I think most public libraries, like academic libraries, post a copy of the relevant federal statute near the copiers. Maybe we should do so with the music CDs, too. With iTunes, Amazon, Freegal, Pandora, streaming radio stations, and other free or inexpensive options, I think the days of libraries’ lending physical CDs (and DVDs) are numbered anyway. But that’s no reason for us to hasten our own demise. What if a patron who takes copyright seriously overheard a conversation such as the above? What if the second patron were someone who was just itching to find a way to cut the library budget?

    Contrary to what some people on PUBLIB asserted, I think we do have a duty not to participate in, or facilitate, a patron’s lawbreaking. I’m not going to follow anyone home, but if I see them ripping CDs or DVDs *in the library,* I will politely explain why they are not entitled to do that. If they tell me their intentions at the checkout desk, I will point out that they are breaking copyright laws. We–libraries and librarians–are explicitly mentioned in the U.S. Code. We have been granted special rights and privileges by federal and state law. We’ve been entrusted with other people’s intellectual property, and I think we should take that seriously. I don’t believe that any librarian has been, or ever will be, prosecuted for looking the other way, but that doesn’t mean it’s the right thing to do, in my opinion.

  5. Actually, anon for now, I can’t think of any situations where it would -not- be clear that what the patron was doing was infringement. Did the Napster case not make an impression? Does your library carry a lot of music CDs whose content is -not- copyrighted?

    The public library gets a special exception in the copyright statutes because we [still, for now] recognize as a society the importance of making information–and entertainment, but some people have a beef with that–available to all our citizens. We think that makes for better self-government. But we’re not going to get to keep that exception if it looks like we’ve become the new Napster.

    Visualize someone taking a book off the shelf, walking over to the copier, and making a copy of each and every page in the book. Then they put that book back on the shelf and do the same thing with another book.

    If that seems wrong to you, then so is doing the same thing with the CDs.

    • Sharon, there are fair use rights and other ways that copyright isn’t always so black and white. For example, as I understand it, a person could make a copy of the songs and then destroy those copies when he or she returned the materials, without violating copyright. Also, the person could be doing some criticism or student work with the songs that could fit under fair use, depending on how much they copied and their later use.

      These are unlikely, I agree. But my point was that this is not so right-and-wrong as many of the respondents say on on the publib thread. We can’t really know if it’s illegal because only a judge can decide.

  6. I might have said something to the guy like “ripping library CDs to your own computer is almost certainly a copyright violation. Please don’t do it.” If he has any sense he will be more discreet about his CD-ripping in the future.

    In the grand scheme of things, I’d file this under “no big deal,” though.

  7. The situation you mention is problematic, but libraries are, speaking very broadly, not liable for our patrons’ uses. And while it’s a stretch, there are ways his ripping could be legal. I know a respected legal scholar who believes that ripping CDs other people own (including libraries) is 100% okay (for a number of fairly technical reasons). Personally, I’m a LOT more worried about protecting our users from overreaching rightsholders than about protecting the rightsholders from our users.

    • “Personally, I’m a LOT more worried about protecting our users from overreaching rightsholders than about protecting the rightsholders from our users.”

      Yes, Nancy! This encapsulates perfectly what I was thinking. (And please note Nancy is a lawyer and a librarian and specifically… a copyright librarian.)

      • BUT NOT PROVIDING LEGAL ADVICE HERE! (because I don’t want to be disbarred. Y’all are not my clients.)

  8. So if someone took a stack of books off the shelf, went over to the copier, and proceeded to copy each and every page of each and every book, then went back to the shelves for another stack of books, etc., that would not merit at least a raised eyebrow from anyone? Not a tap on the shoulder? No reaction at all?

    • Sharon, you are asking a question that wasn’t the original question. Frankly, I can’t imagine a situation at work where I would become aware of something like this happening without going and looking for it. If I did see this, I might think about it, but I’m not sure what I’d do. Isn’t that the issue here–what should we as librarians do if we see this?

      I’m responding to Andy’s original post, in which he labeled perspectives like mine as “fringe” and WTF reactions. Frankly, I’m as shocked as he is–but more by his reaction to all of this.

    • First, what Steve just said. Except if someone made me aware that she was wholescale scanning, ripping, or photocopying, I might point out that copyright law was relevant to her activities, and point her towards some educational materials.

      Second, several of the protections in the law for libraries are for _unsupervised_ reproduction equipment. And the general way that copyright law lets person A be liable for person B’s activities requires that person A have the “right and ability to control” person B’s activities. So the more one tries to police users’ activities, the more one might (possibly. This is so, so, so, not legal advice) be exposing one’s library to liability for users’ actions.

  9. So I guess the next time my patron asks me how to rip a CD, I should just go ahead and show her? Because I don’t really know for sure that she isn’t going to eventually delete it from her iPod and her computer some day?

    I’m still not comfortable with that, but from now on I’ll definitely look the other way when a patron tells me he’ll return a stack of 20 CDs tomorrow.

  10. Our copier is a copy-now-pay-the-librarian-later type of setup. It wouldn’t be very difficult for a patron to copy an entire book without anyone noticing that it’s a library book. I am relieved to learn that I won’t be held personally responsible, but I will lobby for the copyright notices to be posted at the copier and near the CDs.

  11. If somehow I found out that a patron was ripping CDs onto his computer in the library, I would approach the patron and let him know that what he is doing is illegal. I wouldn’t straight out snatch the CDs, but I would probably insist on him stopping.

    Realistically, he’d probably take them home and do the same thing, but there’s really no way to prevent that. It’s fairly easy – if not time-consuming – to copy almost any digital content, we know this.

    BUT I do feel it is my responsibility to speak up when I see somebody doing something blatantly illegal. I probably wouldn’t shout out a jaywalker, but I think copyright, for all its problems, exists and should be respected.

    • I guess I don’t understand how we know the patron is ripping CDs in the first place. Are you standing there watching over his shoulder as the songs slowly show up in the iTunes library? I think you have a problem with respecting patron privacy (I’m not checking that “how to deal with hemorrhoids” book out from YOU).

      Otherwise all I know is CDs are going into and coming out of the laptop. Maybe your patron wrote a program that reads the data, does not copy it, but draws pictures from that information.

      I don’t know what a patron is doing with the materials in the library, and I’m not going to ask. If they ask me for help with the materials, I will help them in what ways I legally can. I’d even be happy to show them how to copy an unprotected cd (and then they can do with that information what they will). I’m happy to explain copyright law to them, but I’m not going to look at a patron reading a physics book and decide that I believe he’s going to make a nuclear bomb and therefore should have the book taken away.

      For a group that wants to shed the shushing stereotype, we sure seem extremely willing to go out of our way to find fault with our patrons.

  12. While I agree that technically speaking, ripping those CDs is copyright infringement, there’s something here that many people are overlooking:

    Unless I’m much mistaken, this is one of a few specific cases of copyright infringement that’s actually protected by law – it’s known as “format shifting”, which is protected in order to allow people to convert media from one format to another for personal use.

    It’d be no different if, for example, he hooked a portable CD player up to a portable tape recorder and made copies of the CDs that way, or if he’d borrowed a DVD box set and used a DVD-ripping progam to copy the video to his computer.

    Now, if this particular patron were then to take all of the copies he’d made of these CDs and uploaded them to a file-hosting website like Megaupload – or fired up a peer-to-peer file-sharing program such as Gnutella or BitTorrent and distributed them that way – that’d be another matter entirely, particularly if he did it while he was still at the library.

    (Side note: I’m not a lawyer or a librarian, I’m just a guy who’s been keeping an eye on the whole copyright battle for several years and has done a lot of research and reading on the subject.)

    • Again, not legal advice, but: format shifting has never been held to be a fair use in the U.S. There are many who argue that it is, and many who argue that it isn’t. I don’t think even most advocates for format-shifting as fair use would go so far as to suggest that ripping CDs you don’t own is inherently a fair use.

      There _may be_ times when ripping CDs from the library could be a fair use. But it would not always or inevitably be so.

      Home taping of music was more clearly legally permissible because of a licensing fee levied on all blank audiotapes. You can still buy “music” blank CDs that cost slightly more than “data” blanks; the price difference is because licensing fees are being paid back to music rightsholders. But even if you buy “music” blanks today, the record companies think you should have to pay _again_ to get media in a new format or on a new device.

  13. I’ve gently refused to assist patrons (teens) in burning library cds to our computers, telling them that there are copyright restrictions on these things, but I help them with burning their own cds. At least, I assume the cds are theirs, not a friend’s.
    Happy to read the lawyerly comments. Very helpful.

  14. Pingback: Copyright Musings « Eric S. Riley

  15. I have a question I am genuinely curious and have wondered this for years; would it still be illegal to rip a cd to your mp3 player just to listen to the music until you had to return the cds and then delete the copy? Because most of us don’t have portable CD players anymore so there’s no way to listen to library stuff on the go.
    If anyone, especially someone legally minded, could answer this that would be great!:)

    • I don’t know the answer to the question but I’m going to use this method. I borrowed a CD from the library and I just love it so much but let’s be realistic. Who carries CD players with them anymore? I intend to buy it eventually anyway. So copying it to my iPod and then deleting the files after I return it to the library is a-ok? I would like to know the answer. :]

  16. Hi there!

    I just cannot believe the shortsighted responses from people to this article, they are so totally ignorant. For instance, borrowing a book and reading it takes money out of the publisher’s hands. Book stores are closing every day just like music shops, so they’re definitely just as liable to be damaged by libraries. You check out a book, read it, that’s STEALING, you are STEALING. Buying a used book for yourself? Perfectly suitable. Checking said book from library, reading it, and never buying a copy? STEALING. You are taking food out of hungry authors’ mouths! When did music become such a focus that you forgot that libraries are inherently immoral like this, that they do not send royalties for every checked out book, and for twenty people, forty people, sixty people checking out a book, libraries are costing the publisher and author THOUSANDS OF DOLLARS. Really, I mean, are you expletive serious? You have to be JOKING.
    I BUY all my books, especially classics, but also new authors, and manga. I support authors. Authors have a much harder time than a lot of music artists, they’re much less exposed on radio, tv, the internet, media in general.
    And yet here’s the rub, when you let people check out cds, books, dvds, you are EXPOSING them to this media. When someone listens to a cd of a group, rips their cd to their computer, and listens to it and enjoys it, they become a fan, and are more liable to spend money towards new albums, shows, or earn artists royalties by watching music videos on tv or the internet, by running up advertising revenue for said artist.
    I can tell you that there’s a lot of music/artists I wouldn’t even know about without the library, god bless it. I buy TONS of music, and also rip cds from the library. I LOVE music, and generally ripping cds keeps me from buying too much music and going bankrupt. I spend money on remasters, box sets, used cds, new cds; generally, if I like the artist, I will either watch a video on you tube or buy their album. I’m also now buying cds which the library USED to have and no longer has, especially expensive box sets which patrons either ruined or stole, like those Grateful Dead Complete albums sets which are wonderful.
    Of course now that I’m not in high school/college anymore and I can actually afford some things, I’d rather have a pristine cd in any case. There’s something sorta dirty about putting a blank cd in a spiffy cd player.
    I might also mention that the poor of yesterday become the wealthy of tomorrow, and they might go back and buy some of the things they supposedly–LOL–stole. And the people who are below the poverty line and cannot afford such luxury items and for whom the library is one of the few ways they can stay absorbed in our culture, I look forward not to the day libraries dimwittingly ban cds, dvds, or even books, or essentially cease to exist altogether.

    Of course a teacher who rips a bunch of cds anyways, well, look how much we’re paying these people who we supposedly VALUE so highly? On a teacher’s pay? They’re lucky to pay their mortgage every month.

  17. also, just allowing someone to borrow a cd for a few weeks to a month is usually not long enough to digest the content, especially when there is so much content nowadays. By ripping cds you can amass a collection which you can then slowly digest when you have the time. I’d feel pressured if I couldn’t just rip the cd, so I’d probably just end up not listening to it, like I never hardly watch any of the dirty, scratched dvds they have at the library. Unless I feel like an item is mine in some way, I won’t invest any time in it, or ever consider buying it for the future.

    and to the people who are actually checking cds out, using them constantly, eventually scratching them and getting them dirty, and letting them sit around and get damaged under a pile of crap for a couple weeks and often losing them in the process, stop it, that’s less music I get to hear.

  18. This is an old thread — but an important one, and I wanted to add my two cents. I say this as someone who regularly rips CDs from libraries.

    1. Do people still listen to CDs anymore on CD players? It’s more customary to listen to them on computers, so ripping is probably a necessary part of adapting the content just to listen to them in any event. Saying that ripping into digital is not an acceptable way to play physical media is basically trying to dictate the fashion in which the item can be listened to by the patron.

    2. Unlike book collections at libraries (which are pretty comrpehensive), music collections of most library systems are still a fraction of the music which is out there. Even in big library systems like Houston (where I live), I usually find that the library has a CD by a known singer I want about 10% of the time. Even deep pocketed libraries couldn’t come anywhere close to owning a fraction of the music out there. For a musician I am specifically searching for, there’s about 40-50% chance that I will find any CD by that artist, but there’s still only a slim chance of finding a specific album (except for ones from the last 3 years — but those usually have a waiting list). With Interlibrary Loans, I can obtain a CD about 70% of the time, but only after a 4-6 week wait. That means that there are still a lot of albums which I need to pay for if I want them.

    3. One problem with the paradigm that you have to pay for something in order to have the right to digitalize something is that the used market allows you to do that — without any revenues going to the artist. I guess obeying the law is one thing, but I don’t find purchasing a used CD and ripping it morally superior in any way to ripping a library copy.

    4. One underlying problem behind the economics of copying is that vintage albums are really expensive — unnecessarily so. When the digital copy of an album sells for $9 but the used version of it sells for less than a $1-4, we really have to ask whether music labels are trying to sell it at a fair market price or just trying to gouge us.

    5. Observation. I also buy a lot of used CDs which I inevitably end up donating to the library. Perhaps the library could serve as a low cost market for reselling CDs or provide community space for people who want to swap physical media. But in a way that’s what the library’s cd collection is already doing.

    6. If libraries are concerned about this, they should consider partnering with a digital streaming service like Rdio. Maybe every patron with a card could receive 20 hours of free listening time each month with their card (and they could pay to upgrade to more listening time).

    7. This parallels the question of whether it is forbidden to run a red light in a deserted intersection at 3 in the morning when nobody is watching. Social habits might make it hard for a person to commit such an act, and the behavior might make the person susceptible to receiving a ticket, but the fact remains that if the intersection is truly deserted, then it will be impossible for the authorities to find out and issue him a ticket — unless he comes forward and confesses. So then, the question becomes: is there a public interest in setting up enforcement mechanisms to prevent such behavior? With red lights, there is a technical solution — you can set up red light cameras to automatically ticket offenders. But even this technical solution has its detractors. In houston where I live, the people voted the traffic lights out because they hated the mechanism. I have contemplated some ways in which the library and/or the music industry could set up a technical enforcement mechanism. But I can’t imagine any of these methods being successfully implemented without being overly intrusive. CD media is inherently easy to copy. If you want to prevent unauthorized copying, it seems to me that the only practical solution is not to sell the media at all!

    8. One way that libraries could address this issue is by charging libraries a special “library rate” for each CD which is higher because of the likelihood of duplication. If music labels sold album CDs at the library rate of $10,000 per item, then unauthorized ripping would simply not occur…. Oh, and no libraries would buy them — and patrons would never have access to them.

    7. It’s almost always true that older items are easy to copy or reuse than newer ones. Presumably labels or musicians today can see the consequences of selling a physical media to a public library with public access. Saying that we should impose special controls on a simpler medium because those who produced these things in the past never anticipated how the medium would be used later is simply an attempt to impose special conditions which never existed when the item was originally sold to the library. lt’s basically trying to go into a time machine and impose retroactive controls. It seems like a doomed effort.

    Robert Nagle
    (PS, I am currently writing an ebook called “The SuperGeek’s Guide to Music Collecting” which should be out in spring. It covers this question and related questions in more detail).

    • Robert Nagle is right about everything- the music industry is heartless and wishes to price gauge consumers. Let library patrons rip as much music as they want, but encourage them to do this is a discrete fashion. Enforcing copyright is a joke.

    • One more point, the way I see it is that the library is paid for by my tax dollars, so in a way, I have already (albeit indirectly) paid for that CD that I’m ripping to my computer.

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