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Some Ground Rules!
•Anything said here is not to be taken
as legal advice, if you have a legal
issue, please consult appro...
About this workshop
• We applaud makerspace pioneers in libraries!
• Librarians often over-estimate legal risk in any give...
One more thing…
• If your use is subject to a license (including terms of use), the
license controls!
• If license does no...
Makerspaces: The Library's Legal Answers
Assessing Risk
• Copyright – Gretchen
One page form to file with copyright office...
Makerspaces: The Library's Legal Answers
Assessing Risk
• Copyright
• Trademark
• Patent
• Defects (Tort)
Key clauses in w...
Assessing Risk
Copyright
What’s protectable by copyright?
• Work is automatically protected if and when:
Original work of authorship
With a modic...
Copyright Owner’s Rights
• Reproduce the work
• Make derivatives
• Distribute copies to the public
• Display and perform i...
How might library infringe copyright
in makerspace?
• Direct infringement: You did it
• Indirect infringement: You were ac...
Direct Infringement:
Reproduction Right
• Copying of protectable expression
• Standard: substantial similarity
• Modified ...
Direct Infringement: Other Rights
• Create a derivative
• (If you had protectable content, it’s a derivative; might also b...
Indirect Infringement
• Vicarious liability:
• Right and ability to control infringing activity + direct financial interes...
Avoiding Infringement:
Limitations on Owner Rights
• Unsupervised copying by users:
• Section 108
• Users uploading infrin...
Section 108(f)
• No liability for copyright infringement upon a library or
archives or its employees
• for the unsupervise...
Application of Section 108
• Post notices!
• Don’t “push the button”
• “Unsupervised” has gray area
• But remember: 108 do...
Patron uses library’s online space to upload someone else’s song
Protect the library ahead of time with two steps
1. REGIS...
Are you already registered?
http://www.copyright.gov/onlinesp/
Is your library or parent organization already registered?
Example: MIT Museum Copyright Agent on file with
U.S. Copyright Office
www.copyright.gov/onlinesp/agents/m/mit.pdf
Amend i...
2. ON YOUR SITE: INFORM PUBLIC HOW TO CONTACT AGENT,
TAKEDOWN PROCESS
Example: Columbia University
http://www.columbia.edu...
Fair Use
• Determined on case-by-case basis
• Based on four factors
• Purpose and character of use
• Nature of work infrin...
Fair Use and Makerspaces
So….
• Reminder: Talking about library’s actions as fair use
• In what type of situations would you need to rely on fair u...
Trademark Law and
Makerspaces
What is a trademark?
• Anything used to identify source/origin of product or service in
mind of consumer
• Words, images, ...
Purpose of trademark law
• To protect consumers from confusion as to source of products
• So they can rely on brand consis...
What constitutes trademark infringement?
• Using a mark in way likely to cause consumer confusion as to
connection between...
How might makerspaces infringe trademark
law?
• Advertising/marketing
• Using trademark in way that might imply non-existi...
About “maker” words…
• “Makerspace” is generic word so cannot be protected by
trademark
• BUT “MAKER FAIRE” is registered ...
Pulling it all together
Assessing Risk
Patent and Defects
Risk of Patent Liability
• Example: Reproducing a work or component of a work protected by
a patent.
• Example: Reproducin...
Risk of Defect or other Harm (Tort) Liability
• Example: Device (3D Printer) is defective.
• Example: Reproducing an objec...
Risk of Defect or other Harm, continued
• Instructions: Liability unlikely under negligence.
• Source: Library (“cheat she...
Key Clauses in Waivers
and Partnership Agreements
Risk of Defect or other Harms, Waivers
• Exculpatory Agreements: called waivers, operate as release
from liability, a cont...
PARTNERSHIP AGREEMENTS
• CLARITY, CLARITY, CLARITY
Define makerspace, access, hosting, staffing, communication,
programs, ...
Building Codes
and Disability Compliance
Building Codes
Time to review and train
staff on local policy
Band aids?
Defibrillators?
make sure everyone is on the same...
Medical Policies
Time to review and train
staff on local policy
Band aids?
Defibrillators?
make sure everyone is on the sa...
Free Speech
and Privacy
New space, not a quiet reading space
Users may be expected to talk
Boisterous? Foul Language?
Creating embarassing 3D prin...
Makerspace Policies ... and Free Speech
 Define purpose of the space
 Hanging out, messing around, geeking out (Chicago ...
Defamation, False Information, Negligence
… You’re not responsible, even if you host (almost always)
No provider or user o...
Today’s legal environment
gives us
DontDateHimGirl.com
Ever-so-slight caution:
Don’t “co-produce” bad content
 Internet roommate locator service
Required users to use pull-down...
Privacy and Makerspaces
Federal Law
no expectation of privacy in public places
but Electronic Privacy Communications Act
(...
Privacy and Collecting Information from Children
Federal law requires parental consent for
children under 13 for online co...
If you have a commercial partner, subject to COPPA
Commercial services
 Notice to parents about information practices
 V...
Privacy and Sharing Children’s Information
Great to cooperate with schools or others
Warning: Get parental permission befo...
Resources
American Library Association. Progress in the Making: 3D Printing Policy Considerations through the Library
Lens...
Questions?
Questions?
Makerspaces: Library's Legal Answers Workshop
Makerspaces: Library's Legal Answers Workshop
Makerspaces: Library's Legal Answers Workshop
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Makerspaces: Library's Legal Answers Workshop

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Makerspaces: Library's Legal Answers Workshop

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Makerspaces: Library's Legal Answers Workshop

  1. 1. Some Ground Rules! •Anything said here is not to be taken as legal advice, if you have a legal issue, please consult appropriate counsel. •In return, it is assumed that all questions posed are hypothetical and reflect only the musings of an informed and curious mind and not the actual problem you might have.
  2. 2. About this workshop • We applaud makerspace pioneers in libraries! • Librarians often over-estimate legal risk in any given situation • Our goals today: • Help you understand actual risk • Suggest strategies for minimizing risk
  3. 3. One more thing… • If your use is subject to a license (including terms of use), the license controls! • If license does not address particular situation, then turn to law. • So read what you agree to… • … and understand what you agree to
  4. 4. Makerspaces: The Library's Legal Answers Assessing Risk • Copyright – Gretchen One page form to file with copyright office – Mary • Patent – Tom • Defects (Tort) - Tom Key clauses in waivers and partnership agreements • Waivers – Tom • Partnership agreements – Mary Building Codes and Disability Compliance – Mary Free Speech and Privacy – Mary
  5. 5. Makerspaces: The Library's Legal Answers Assessing Risk • Copyright • Trademark • Patent • Defects (Tort) Key clauses in waivers and partnership agreements Building Codes and Disability Compliance Free Speech and Privacy
  6. 6. Assessing Risk Copyright
  7. 7. What’s protectable by copyright? • Work is automatically protected if and when: Original work of authorship With a modicum of creativity Fixed in a tangible medium of expression Songs Poems Images
  8. 8. Copyright Owner’s Rights • Reproduce the work • Make derivatives • Distribute copies to the public • Display and perform in public
  9. 9. How might library infringe copyright in makerspace? • Direct infringement: You did it • Indirect infringement: You were accomplice to the one who did it
  10. 10. Direct Infringement: Reproduction Right • Copying of protectable expression • Standard: substantial similarity • Modified copies can infringe! • Medium/format does not matter: a copy is a copy is a copy
  11. 11. Direct Infringement: Other Rights • Create a derivative • (If you had protectable content, it’s a derivative; might also be infringement of reproduction right.) • Distribute unlawfully made copies to the public • Perform or display in public
  12. 12. Indirect Infringement • Vicarious liability: • Right and ability to control infringing activity + direct financial interest • Contributory liability: • Knowingly induce, cause, or contribute to third party’s infringement • Inducement • Distribution of a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement
  13. 13. Avoiding Infringement: Limitations on Owner Rights • Unsupervised copying by users: • Section 108 • Users uploading infringing material: • DMCA “safe harbor” for “online service providers” (§512) • Other things, maybe: • Fair use
  14. 14. Section 108(f) • No liability for copyright infringement upon a library or archives or its employees • for the unsupervised use by other • of reproducing equipment located on its premises • IF such equipment displays a notice that the making of a copy may be subject to the copyright law 17 U.S.C. Sect. 108(f)
  15. 15. Application of Section 108 • Post notices! • Don’t “push the button” • “Unsupervised” has gray area • But remember: 108 doesn’t require you to post notices and not supervise copying, just relieves of liability IF you do… • … and IF user infringes
  16. 16. Patron uses library’s online space to upload someone else’s song Protect the library ahead of time with two steps 1. REGISTER AGENT WITH U.S. COPYRIGHT OFFICE www.copyright.gov/onlinesp Digital Millennium Copyright Act (DMCA)
  17. 17. Are you already registered? http://www.copyright.gov/onlinesp/ Is your library or parent organization already registered?
  18. 18. Example: MIT Museum Copyright Agent on file with U.S. Copyright Office www.copyright.gov/onlinesp/agents/m/mit.pdf Amend if your designated copyright designee changes
  19. 19. 2. ON YOUR SITE: INFORM PUBLIC HOW TO CONTACT AGENT, TAKEDOWN PROCESS Example: Columbia University http://www.columbia.edu/content/copyright.html
  20. 20. Fair Use • Determined on case-by-case basis • Based on four factors • Purpose and character of use • Nature of work infringed • Amount and substantiality of portion used • Effect on potential marketability of work
  21. 21. Fair Use and Makerspaces
  22. 22. So…. • Reminder: Talking about library’s actions as fair use • In what type of situations would you need to rely on fair use for makerspace activities? • What do your policies & procedures say? • How do you address fair use in other situations?
  23. 23. Trademark Law and Makerspaces
  24. 24. What is a trademark? • Anything used to identify source/origin of product or service in mind of consumer • Words, images, names, even sounds and smells! • Even if you don’t know who actual source/origin is • E.g., each time you see “OREO,” you know those cookies came from same source as last time you bought Oreos, even if you don’t know source is Nabisco
  25. 25. Purpose of trademark law • To protect consumers from confusion as to source of products • So they can rely on brand consistency
  26. 26. What constitutes trademark infringement? • Using a mark in way likely to cause consumer confusion as to connection between your product or service and that of another • Mark does not have to be exact
  27. 27. How might makerspaces infringe trademark law? • Advertising/marketing • Using trademark in way that might imply non-existing association • Making item containing infringing mark • Making item that is itself trademarked, e.g., character
  28. 28. About “maker” words… • “Makerspace” is generic word so cannot be protected by trademark • BUT “MAKER FAIRE” is registered trademark • So be aware, read licenses and terms of use
  29. 29. Pulling it all together
  30. 30. Assessing Risk Patent and Defects
  31. 31. Risk of Patent Liability • Example: Reproducing a work or component of a work protected by a patent. • Example: Reproducing an object protected by a design patent. • Primary/Direct: Non-existent if library does no printing. • Inducement: Secondary. Non-existent at present under 35 U.S.C.A. § 271(b) if the library does not induce the patron to infringe a patent. BENIGN INSTRUCTION of Patrons! • Avoid knowledge and willful blindness standards of Global-Tech Appliances, Inc. v. SEB S.A., 131 S.Ct. 2060, 2069 (2011). • Elements: 1) High probability (subjective belief) and 2) deliberate avoidance. • Distribution/Contributory: Secondary. Non-existent at present under 35 U.S.C. § 271(c) (3D printer is a device capable of “substantial noninfringing uses”). • Especially made/adapted standard of Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 525 (1964), is absent.
  32. 32. Risk of Defect or other Harm (Tort) Liability • Example: Device (3D Printer) is defective. • Example: Reproducing an object that does not function. • Example: Providing faulty design instructions. • Example: The object functions but is used to harm another. • Printer Defect: the library as gratuitous bailor of the printer: • Restatement (Second) of Torts § 388 (1965): know or reason to know and a failure to warn: of a dangerous condition or of facts likely to make it dangerous. Printer not working properly: sprays molten compound. Warning: blade is very sharp! • Product defect: Liability unlikely under product (strict) liability standard. Patron made object is not “manufactured”: • “engaged in the business of selling or otherwise distributing products.” RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 1 (1998), comment c. • See also, RESTATEMENT (SECOND) OF TORTS § 402A, comment f (1965) (“The rule does not apply to the housewife who, on one occasion, sells to her neighbor a jar of jam or a pound of sugar.”). • Instructions: Liability unlikely under product liability law. Aetna Casualty & Surety Co. v. Jeppesen & Co., 642 F.2d 339, 341-343 (9th Cir. 1981) (liability limited to navigational and aeronautical charts).
  33. 33. Risk of Defect or other Harm, continued • Instructions: Liability unlikely under negligence. • Source: Library (“cheat sheet”). “publisher… has no duty to …independently investigate the accuracy of the text. ” Winter v. G.P. Putnam’s Sons, 938 F.2d 1033, 1037- 38 (9th Cir. 1991). • “warning is unnecessary… no publisher has a duty as a guarantor.” Id. • Reasonableness of reliance on gratuitous information. RESTATEMENT (SECOND) OF TORTS § 311, comment c (1965). • Source: Third Party. Immunity: content obtained online. 47 U.S.C. § 230. • Product defect or harm to another: Negligence unlikely. Duty of care standard. Foreseeability. Proximate cause. Superseding cause. Public policy considerations. • Statutory Immunity: Wis. Stat. § 893.80(4). • “A discretionary act is one that involves the exercise of discretion or judgment in determining the policy to be carried out or the rule to be followed [and] the exercise of discretion and judgment in the application of a rule to specific facts. A non- immune ministerial’ act, on the other hand, is one where the duty is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes, and defines the time, mode and occasion for its performance with such certainty that nothing remains for the exercise of judgment or discretion.” Willow Creek Ranch, LLC v. Town of Shelby, 224 Wis.2d 269, 281-282 (Ct. App. 1998) (citations omitted), review granted 228 Wis.2d167 (1999), affirmed 235 Wis.2d 409 (2000), reconsideration denied 239 Wis.2d 314 (2000).
  34. 34. Key Clauses in Waivers and Partnership Agreements
  35. 35. Risk of Defect or other Harms, Waivers • Exculpatory Agreements: called waivers, operate as release from liability, a contractual promise not to sue for negligent but not reckless or intentional conduct. • Clear title and labels (Assumption of Risk, Release of Liability, etc.). • Singular purpose, e.g., do not combine with general registration. • Articulate the possible equipment, e.g., solvents, metal working tools, etc., dangers, e.g., fumes, sharp objects, etc., and harms, e.g., cuts, burns, etc. • Exculpatory provision in bold or caps: conspicuous! • Some states require the ability to bargain; present a choice: service is free if you sign, if you choose not to sign you pay a fee. • Minors: Contracts are voidable; exception: voluntary, noncommercial. • Indemnification: a promise to make another whole, i.e., to cover the expenses associated with a harm suffered including legal expenses and damages. • Fault of the library; fault of the patron (in harming another patron).
  36. 36. PARTNERSHIP AGREEMENTS • CLARITY, CLARITY, CLARITY Define makerspace, access, hosting, staffing, communication, programs, facilities including parking, fees (collecting and using) • Confidentiality – patron information, agreement itself • Decision-making. Who decides what? Unanimous decisions? • Capital Contribution. Initially? Maintenance? Expansion? • Insurance. Who carries policy? Additional insured? • Dissolution. Exit strategies. Better: six month agreements. TekVenture Inc. and Allen County Public Library agreement at https://infopeople.org/sites/default/files/webinar/2014/07-22-2014/PartnershipAgreementExample.pdf
  37. 37. Building Codes and Disability Compliance
  38. 38. Building Codes Time to review and train staff on local policy Band aids? Defibrillators? make sure everyone is on the same page
  39. 39. Medical Policies Time to review and train staff on local policy Band aids? Defibrillators? make sure everyone is on the same page
  40. 40. Free Speech and Privacy
  41. 41. New space, not a quiet reading space Users may be expected to talk Boisterous? Foul Language? Creating embarassing 3D prints? Free Speech and Library’s Makerspace (physical) Government libraries bound by FIRST AMENDMENT .. Can do: CONTENT NEUTRAL Too loud (may enforce) Not bad words (trickier) Check with lawyer before removing someone for bad language
  42. 42. Makerspace Policies ... and Free Speech  Define purpose of the space  Hanging out, messing around, geeking out (Chicago Public Library)  Ask for civility in general (but don’t kick out)  Personal attacks – consult library conduct policy  Warning: difficult to rise to level of direct threat  Obvious “hyperbole” is free speech See Henry Cohen, (16 October 2009). "Freedom of Speech and Press: Exceptions to the First Amendment” www.fas.org/sgp/crs/misc/95-815.pdf
  43. 43. Defamation, False Information, Negligence … You’re not responsible, even if you host (almost always) No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. 47 USC§ 230(c) Matchmaker.com immune when user posted false profile for Star Trek actress – stalking Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) Sect. 230 broad protection – from false information, negligence, sexually explicit content, discrimination BUT NOT COPYRIGHT Free Speech and Library’s Makerspace (online)
  44. 44. Today’s legal environment gives us DontDateHimGirl.com
  45. 45. Ever-so-slight caution: Don’t “co-produce” bad content  Internet roommate locator service Required users to use pull-down menus: age, gender, sexual orientation, children  No immunity as co-producer of content  But OK to let users write free text "Additional Comments” even gross discrimination Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d 1127 (9th Cir. 2008)
  46. 46. Privacy and Makerspaces Federal Law no expectation of privacy in public places but Electronic Privacy Communications Act (ECPA) protects stored electronic data State Law – varies *Most protect personal information in library records *Some (e.g. Arizona) protect personal information when “using the library”
  47. 47. Privacy and Collecting Information from Children Federal law requires parental consent for children under 13 for online comments at commercial websites Don’t collect/keep what you don’t need Children's Online Privacy Protection Act (COPPA)
  48. 48. If you have a commercial partner, subject to COPPA Commercial services  Notice to parents about information practices  Verifiable parental consent before collecting  Parents must have access to child’s info  Confidentiality, security and integrity of child’s personal info … link to privacy policy on any page where info is collected Federal Trade Commission (FTC) www.ftc.gov/bcp/conline/edcams/kidzprivacy
  49. 49. Privacy and Sharing Children’s Information Great to cooperate with schools or others Warning: Get parental permission before sharing personal information http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html
  50. 50. Resources American Library Association. Progress in the Making: 3D Printing Policy Considerations through the Library Lens by Charlie Wapner http://www.ala.org/offices/sites/ala.org.offices/files/content/3D_Library_Policy-ALA_OITP_Perspectives- 2015Jan06.pdf California State Library Infopeople project. Makerspaces in Libraries: Legal Considerations July 22, 2014 (thanks to Infopeople for some content in this presentation) https://infopeople.org/civicrm/event/info?id=416&reset=1
  51. 51. Questions? Questions?

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