The Long Arm of the Law

by | Nov 9, 2014 | 0 comments


(L-R) Ann Okerson, Laura Quilter, William Hannay

(L-R) Ann Okerson, Sr. Advisor, Center for Research Libraries, Yale University (Moderator); Laura Quilter, Copyright and Scholarly Communications Librarian, University of Massachusetts; William Hannay, Partner, Schiff Hardin LLC

This was the 4th year of a legal update session at the  Charleston Conference, and you can get a good idea of what it was about from the word cloud below, which Ann Okerson, the session Moderator, made from the abstracts of the two speakers’ presentations.  (For more than you probably want to know about word clouds, click here, and if you want to make one, here is a good program to start with.)

Tag cloud of speaker abstracts

Laura Quilter, Copyright and Information Policy Librarian, University of Massachusetts, led off with “The Long Arm of the Law, Indeed!”.  She first discussed the case of Capital Records vs. ReDigi, which dealt with the First Sale doctrine, in which the court held that electronic goods do not have first sale rights because they are necessarily copies (the bits of the original are not the same as those of the copy). There have been a number of cases on fair use and the question of transformation (whether the copies have resulted in a transformation of the original work).

Fair Use Cases

Fair Use Cases

Quilter called fair use “an emotional roller coaster” and said that courts at present seem to be giving the purpose of the copied work more weight than other criteria.  See copies of her slides below.

Fair Use 1

Fair Use 2

Fair Use 3

Bill Hannay, Partner, Schiff Hardin LLC, followed with a discussion of a case against Google in Europe that involved “the right to be forgotten”.  The European Court of Justice held that an operator of a search engine (in this case, Google) is obliged to remove links to web pages that appeared in a search on a person’s name, if the information is “inadequate, irrelevant or no longer relevant, or excessive” in relation to the purposes for which the data was collected and in the light of the time that had elapsed, even if the information is true.

This case is a major legal precedent because it established that Google is responsible for search results.  The court emphasized that there is a need for balance in the process between the subject’s rights and the public’s interest in the information. Balance depends on the nature of the information, the subject’s private life, and the public’s need for the information.

As a result, Google published an online form that can be used to request removal of information. The next day, it had received 12,000 requests, and as of July, there were 70,000 requests! Google sent out a team to hold seminars in every major European city explaining why this was a disaster, and Jimmy Wales, founder of Wikipedia, warned that this will result in an internet riddled with memory holes.

Here is what Hannay thinks about this decision.

Hannay's opinion

However, he thinks that a similar decision will probably not happen in the U.S. because we do not have broad-based legislation similar to that which was recently enacted in Europe, and because there is nothing in our Constitution that says that irrelevant or inaccurate data must be removed from a database.  He did not, however, that we do regulate data use and content in one significant area: credit reporting under the Fair Credit Reporting Act.

Hannay said that these events present a dilemma for librarians who are dedicated to preserving information. What should we say if someone asks for help in taking down false, old, or embarrassing information?  Many online hosts do have procedures in place for requesting removal of data from their websites; however, these are generally used in response to copyright infringement claims.



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