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.

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

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

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

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

Assessing Risk

Copyright

What’s protectable by copyright?

• Work is automatically protected if and when:Original work of authorshipWith a modicum of creativityFixed in a tangible medium of expression

SongsPoemsImages

Copyright Owner’s Rights

• Reproduce the work

• Make derivatives

• Distribute copies to the public

• Display and perform in public

How might library infringe copyright in makerspace?• Direct infringement: You did it

• Indirect infringement: You were accomplice to the one who did it

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

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

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

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

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)

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

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 MillenniumCopyrightAct (DMCA)

$105 to File

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 if your designated copyright designee changes

2. ON YOUR SITE: INFORM PUBLIC HOW TO CONTACT AGENT, TAKEDOWN PROCESS

Example: Columbia University

http://www.columbia.edu/content/copyright.html

Chillingeffects has sample

takedown notices

https://www.chillingeffects.org/

topics/29

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

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 use for makerspace activities?

• What do your policies & procedures say?

• How do you address fair use in other situations?

Trademark Law and Makerspaces

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

Purpose of trademark law

• To protect consumers from confusion as to source of products

• So they can rely on brand consistency

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

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

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

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: 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.

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).

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).

Key Clauses in Waivers

and Partnership Agreements

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).

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

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 page

Medical Policies

Time to review and train staff on local policy

Band aids?

Defibrillators?

make sure everyone is on the same page

Free Speech

and Privacy

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

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

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)

Today’s legal environmentgives us DontDateHimGirl.com

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)

Privacy and MakerspacesFederal 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”

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)

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

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

ResourcesAmerican 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

Questions?

Questions?