The “My bad. Please forgive me.” Defense
5February 3, 2015 by Susan Prillaman
When faced with a request that will likely be denied, I’ve heard people joke–with some seriousness–that they should beg forgiveness rather than ask permission. I understand the sentiment, but when potential consequences are high the strategy seems unwise. It was therefor with some surprise, consternation even, to learn that in the realm of digital history the ability to quickly remove contested content from the web is, according to Cohen & Rosenzweig, “the most important reason why historians should not worry excessively about many of the [copyright] issues we discuss [in “Owning the Past?],” a concept now known in my mind as “the ‘My bad. Please forgive me.’ defense.”
Reading further, my consternation was assuaged by the unfortunately titled “Well-intentioned practice for putting digitized collections of unpublished materials online” from the Online Computer Library Center, Inc. (OCLC), and “Intellectual Property Rights Strategy for Digitization of Modern Manuscript Collections and Archival Record Groups” from Triangle Research Libraries Network (TRLN). I may be splitting nomenclature hairs, but being “well-intentioned” may count little within the confines of a courtroom. Editorializing aside for the moment, TRLN’s strategy document clearly explains the due diligence process each member organization performs before items from their respective special collections may be published to the web.
With the volume and variety of individual documents within a collection often staggering, and the time and resources available to ascertain copyright status limited, TRLN decided to “proceed on the basis of an intelligent assessment of the potential risks and reasonable efforts to reduce those risks; ” “reasonableness” being a key legal concept. In addition to its three-pronged approach–recognize some materials are already in the public domain, obtain permissions and rights when and where possible, and acknowledge the strength of a fair use argument—TRLN’s strategy includes the placement of a statement about intellectual property on each member’s website; similar I imagine to sample take-down policy and disclaimer language provided in OCLC’s statement. In the event an infringement complaint is received and deemed warranted, the library removes the digital object.
But do they really? Given evidence that the Internet Archive may not remove the offending content at all but instead blocks it from public view, what assurances does a rights holder have that the material has indeed been expunged?
Where OCLC’s statement is a one-page, bullet-pointed document (not so different from one recently published by my employer), and TLRN’s strategy statement provides an excellent primer on copyright issues, Hirtle, Hudson and Kenyon’s Copyright & Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives & Museums offers a much deeper view into its intricacies. Even so, potential issues are complex and vary on a case-by-case basis, one reason OCLC recommends involving an attorney in the event your institution employs one.
In this regard, I think OCLC’s statement falls short in two ways. First, it doesn’t include the possibility an organization might need to hire outside counsel based on the nature and extent of the materials involved. Second, it fails to suggest the attorney be well-versed in copyright law; a corporation, real estate or litigation attorney may do more harm than good.
But hell, it’s the intent that matters, right? In the event you think me too harsh I say, “My bad, please forgive me.”
Category Reading Response | Tags: copyright, digital history, intellectual property, OCLC, Susan Prillaman, Triangle Research Libraries Network, TRLN, Week 4
When libraries and archives are faced with copyright issues, these institutions (usually) go every possible end to ensure their protection, and I agree that they should. I was also thinking about how difficult it must be for these institutions to deal with the vast intake of both the amount of materials and the different formats they encounter when seeking to gain permissions. I’d be interested to see statistics on the success rate of the OCLC in gaining permissions to digitize as I think while this is something all institutions are aware of and cautious about. However, as Kathryn discussed earlier today in class, it doesn’t seem to be as much of an issue in not-for-profit circumstances. Though I understand the idea that donors or the organizations associated with the materials may only be inclined to slap the offending intuition on the hand, I was also surprised to hear this. In nearly every conversation I hear about copyright and gaining permissions, it is usually laced with caution.
You are forgiven. I think you’re right about the issue of intent–that IS what really matters. After working in multiple archives I have come to realize that sometimes, if not a lot of the time, documentation or provenance for some objects or documents is nearly impossible to trace. This is especially true for small museums and archives. Obviously due diligence is the most important factor when considering to upload new content that may or may not be under copyright, but I think the vague term “reasonableness” should be taken as it is. I say, that as long as your purposes for digitizing previously un-published material online are designated educational, go for it. Leave breadcrumbs of your due diligence and hire a good lawyer– as you mention, preferably one with copyright law experience, and just don’t wuss out. This stuff needs to be seen! and in the event you think me too harsh I say, “My bad, please forgive me.”
Susan, I agree with you that the “My bad. Please forgive me.” approach to copyright is cause for consternation. I know in my work as a rights researcher I have a very hard time using an image, or footage that I have not gotten permission to use. Fair-use and due diligence are important to establish, but the last thing anyone wants is to prove that in a court of law. I think we need to keep this in mind as we all begin to look at what digital sources we want to use in our various online exhibits.
I have to admit that I tend to lean on the opposite end of this spectrum and feel that if take down notices are the norm for any copyright infringement online than that its most often good enough for us as researchers if we do our due diligence when conducting initial research. This level of concern is not paid by most individuals online and they rarely if ever see any backlash from overt infringement. I do however want credit to be paid whenever possible to researchers and believe that work shouldn’t be lifted wholesale.
Susan, we certainly do live in a litigious culture, so it is surprising (pleasantly?) that consortiums of libraries have decided to privilege access over copyright caution in their digitization policies. That said, it would be worthwhile to get some statistics on the “reasonable” efforts made by institutions to secure copyright permissions for posting content. Does a lack of success in finding copyright holders point to a segment of our population that doesn’t care too much about copyright? Or is it just that some intellectual property is far more potentially lucrative than others?