Archive for May, 2012

Read the June Issue of AALL Spectrum Online Now!

The June issue of AALL Spectrum is now available online in a PDF format. This issue includes articlesImage about:

You can also see two beautiful views from Auckland, New Zealand, and Charlotte, North Carolina, as well as read responses to this month’s Member to Member question: What’s coming up on your reading list?

Additionally, be sure to print this month’s Boston Survival Guide – available online only – and bring it along July 21-24. 

Paper copies of the June issue were mailed to members May 29. Yours should arrive soon!

Ruling in Georgia State Copyright Case is Mostly Good News for Libraries

In April 2008, Cambridge University Press, Oxford University Press, and SAGE Publications sued Georgia State University officials in federal district court for copyright infringement after the publishers found small excerpts and chapters from their books posted on Georgia State’s e-reserves. Instructors at Georgia State had posted the excerpts as supplemental readings for students, sometimes relying on fair use instead of obtaining permission. Because of sovereign immunity, the publishers did not seek damages, but they sought an injunction ordering Georgia State to change its practices. Georgia State’s dean of libraries was one of the named defendants.

Before the case went to trial, Georgia State revised its copyright policy and practices, but not to the publishers’ satisfaction. The court held a bench trial in May and June 2011 to consider 99 alleged instances of infringement that occurred under Georgia State’s revised copyright policy. All of the alleged infringements involved chapters and other excerpts from nonfiction books posted on Georgia State’s e-reserves, with access limited to students enrolled in the applicable courses. Before the trial was over, the plaintiffs voluntarily reduced their allegations of infringement to 75 instances. On May 11, 2012, the court issued a 350-page ruling that was mostly favorable to Georgia State. Here’s the good news for libraries:

  • Out of the 75 alleged instances of infringement, the court sided with the publishers only five times.
  • The court held that the limits on the amount of copying suggested by the 1976 Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions (the “Classroom Guidelines”) were too restrictive. The Classroom Guidelines have long been criticized for their narrow interpretation of fair use.
  • The court declined to follow the Classroom Guidelines’ suggestion that fair use copying should be permitted only when it’s spontaneous and not repeated.
  • Works that were uploaded on e-reserves but not actually downloaded by users were held to be de minimis instances of copying, which the court dismissed without even reaching the question of fair use.
  • The court found no evidence that the plaintiffs suffered any loss of book sales, reasoning that short excerpts posted on e-reserves could not substitute for entire books and would not have led anyone to forego purchasing the books.

To decide whether Georgia State infringed the plaintiffs’ copyrights, the court applied the four-factor fair use test set forth in section 107 of the Copyright Act (17 U.S.C. § 107). The four factors are (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) effect of the use on the potential market or value of the copyrighted work. The court found that the first and second factors always favored Georgia State because the copying was done for nonprofit educational purposes and all the works copied were nonfiction. (Works that are more creative, such as novels and poems, receive heightened protection under the second factor.)

On the third factor (amount and substantiality of the portion used), the court held that copying not more than 10 percent of a book or, in books with 10 or more chapters, not more than one chapter, would favor fair use. The court’s limits are much more generous than those set by the Classroom Guidelines, and most of Georgia State’s copying fell within the court’s limit of 10 percent or one chapter. The court’s decision to set specific limits has already generated criticism from some commentators who argue that the flexibility of the fair use test does not allow for any bright-line rules. But the court made it clear that its 10 percent-or-one-chapter limit was specific to the facts of this case, and it did not automatically find infringement where Georgia State exceeded the limits. Our only concern with respect to the third factor is that the court glossed over the “substantiality” aspect and put too much emphasis on page count alone.

As for the fourth factor (effect on potential market or value), the court found that the plaintiffs had not lost any book sales as a result of the copying and only a very small amount of permissions revenue. Nonetheless, the court held that if a digital license for an excerpted work was readily available and reasonably priced, the fourth factor would favor the publishers. In this case, digital licenses typically were not readily available, and so the fourth factor usually favored Georgia State. But if courts apply the same reasoning in future cases, the result might not be so happy for libraries. If the availability of fair use depends on the unavailability of appropriate licensing mechanisms, then copyright owners can limit fair use simply by supplying those licensing mechanisms. We don’t think that fair use should work this way. In our view, it would be better to focus on the court’s finding that publishers enjoy a healthy market for their book sales, which is not affected by the short excerpts posted on e-reserves. We think that’s enough to favor Georgia State under the fourth factor.

Because the court held that the first and second factors always favored Georgia State, and the third and fourth factors usually did too, the court held that nearly all the instances of copying in this case were fair uses. The court’s rejection of the Classroom Guidelines and its skepticism about the publishers’ lost sales were the key to Georgia State’s win.

What can we expect next in this case? The publishers have until May 31 to propose an injunction, and Georgia State will have 15 days to respond. Of course, in view of the court’s ruling, we can expect the injunction to be limited. Once final judgment is entered, the publishers may appeal to the U.S. Court of Appeals.

What are the broader implications of this case? That’s still unclear. Even if there’s no appeal, the court’s decision won’t be binding as precedent in any other court because this is only a trial court opinion. But it’s safe to assume that publishers and libraries will heed this highly anticipated case, which is the first and only opinion from a U.S. court that addresses fair use copying in e-reserves. We can expect publishers to offer more digital licenses for excerpts to their books, which will strengthen their position under factor four of the fair use test. We might also expect publishers to take a more restrained approach to litigation and cease-and-desist letters, considering they have spent millions to litigate a case that seriously weakened their bargaining position. Of course, this could all change dramatically on appeal.

James S. Heller is director and Paul Hellyer and Benjamin J. Keele are reference librarians at the Wolf Law Library, William & Mary Law School in Williamsburg, Virginia. This post is partly based on the authors’ forthcoming book, The Librarian’s Copyright Companion, Second Edition, to be published by William S. Hein & Co. this fall.

Highlights from the HALL Newsletter, March/April 2012

The March/April issue of the HALL Newsletter, the publication of the Houston Area Law Librarians, has recently been published. In addition to announcements and meeting minutes, the newsletter features how several Houston law libraries celebrated National Library Week this past April. Also featured is customer service advice from consultant JoAnna Brandi. In order to become and stay preferred by their customers (or patrons), Brandi urges businesses (or libraries) to continually practice being present with their customers and completely focus on their relationships, creating positive impressions for customers, and display patience to ensure customers’ goals are achieved. Brandi suggests these characteristics will lead to greater customer satisfaction and loyalty.

Book Review – International Handbook on the Economics of Corruption, Volume Two

International Handbook on the Economics of Corruption, Volume Two, edited by Rose-Ackerman, Susan and Søreide, Tina.  Edward Elgar, 2011. Hardcover, 618 pages, £165. ISBN: 978-1-84980-251-2.

International Handbook on the Economics of Corruption, Volume Two, is a sequel meant to follow co-editor Susan Rose-Ackerman’s first volume from 2006, International Handbook on the Economics of Corruption. Now Rose-Ackerman and new co-editor Tina Søreide have assembled a truly international team of contributing writers for 19 chapters on the economic concept of corruption (defined by Rose-Ackerman and Søreide as “where the private search for economic advantage and personal advancement clashes with laws and norms that condemn such behavior”) and how it relates to politics, finance, industry, and crime.

After the editors’ introduction, the book is divided into six parts: General Overviews (containing the two broadest chapters, “Corruption and sustainable development” and “Curbing corruption with political institutions”), Procurement and Corruption, Privatization and Self-Dealing in Private Firms, Public Utility Regulation, Micro-Analytic Research: Households and Firms, and Policy Initiatives: Critiques and Evaluations. A detailed index at the end of the book provides for quick reference to the plethora of unfamiliar terms, concepts, and names introduced throughout the volume.

As a solution-oriented person, I was drawn the most to the chapters in Part VI: Policy Initiatives: Critiques and Evaluations. Edgardo Buscaglia’s chapter, “On best and not so good practices for addressing high-level corruption worldwide: an empirical assessment,” discussed and measured the effectiveness of the 2003 United Nations (Merida) Convention against Corruption, which contains “legal, judicial, investigative, intelligence, international legal/judicial cooperation, and preventive practices in the fight against public and private sector corruption” and has been ratified by 102 countries so far.  Francesca Recanatini’s chapter, “Anti-corruption authorities: an effective tool to curb corruption?” analyzed a World Bank-sponsored initiative to study the effectiveness of prevention, investigation, prosecution, and coordination functions of international anticorruption authorities (ACAs), comparing them by country and even by continent.

As you can imagine by now, International Handbook on the Economics of Corruption, Volume Two is a highly academic work, best suited for university libraries for graduate-level programs and classes in world economics, international studies, and political science. Academic law libraries at law schools with strong international and comparative law programs or classes on law and economics may consider it, but it is more useful for economics scholars than legal ones. Any law firms that specialize in international trade, finance, and economic development should consider acquiring it, but it would be a valuable reference for charities and other organizations that deal with international aid and development.

Unfortunately, as a result of not being an economics scholar (and not having read the previous edition), I found this book to be dense and difficult, though I fully realize and admit I am not the target audience. It is meticulously researched and written as clearly as possible, just meant for scholars, practitioners, and experts in the field. With pages of complicated economic equations, tables, and graphs, it is obviously not for casual reading. For nonexperts hoping to learn more about the nature of corruption and how it relates to institutions, I would sooner suggest starting by watching the five seasons of HBO’s The Wire, the greatest television show of all time.   

Louis Rosen is a reference librarian and assistant professor of law library at Barry University School of Law in Orlando, Florida.

Master the Skills for Professional Networking

Networking skills can increase library visibility, professional credibility, and collaboration across your library, your larger institution, and your greater community. A new webinar, Make the Connection: Mastering the Skills for Professional Networking, on June 21 at 11 a.m. CDT, will teach you the dos and don’ts of interacting effectively and the skills and confidence to navigate any networking opportunity.


  • Pre-planning techniques for networking events
  • Best practices for professional interactions
  • Networking pitfalls to avoid
  • Effective follow-up etiquette

Be prepared for AALL’s biggest networking event – the AALL Annual Meeting in Boston, July 21-24. Register now! 
Cost: $30/members; $60/nonmembers; $150/site registration

Offset Pledge – the Sustainable Law Librarian

David Selden’s column in the May issue of Spectrum calls on each of us to pledge to purchase carbon offsets to reduce the environmental impact of traveling to the annual meeting in Boston. He includes several offset providers for us to research and purchase our offsets.

I hope you’ll join me in pledging to David to offset your travel to Boston.


Spectrum Editorial Director Time Requirements & Fun Factor

After the Boston meeting I begin the third year of my second term as AALL Spectrum editorial director. It’s been a blast! And, it’s time to let someone else have fun.

Read the announcement here (application deadline June 1) which leads to the job description.

A few folks have asked about how much time I spend on AALL Spectrum and what I’ve thought of the job.  Well, on average, I spend 10-20 hours per week on Spectrum related activities and I’ve had a blast.

That time gets spent on a weekly conference call with the editorial staff, Ashley St. John, Marketing and Communications Manager, and Julia O’Donnell, Director of Membership Marketing and Communications. The call typically lasts about 20 minutes; occasionally the agenda required just over a hour.

Those calls deal with:

  • Reviewing article proposals, discussing how to respond to the proposal and when to schedule the article to be published;
  • Member-to-member questions – choosing the question and later selecting the responses to go into the magazine;
  • Selecting which library remodel or build to feature in the architectural issue;
  • Discussing new formats for articles and the magazine

Other chunks of time get consumed:

  • In writing my column, at least 4 to 8 hours per issue;
  • In communicating with authors about how I’d like them to reshape their article;
  • Selecting and promoting books to be reviewed in the blog – and then selecting the reviewer and communicating to those i didn’t select;
  • Listening to members and reading the email lists and blogs for article ideas;
  • During the annual meeting which includes:
    • A speaking stint at CONELL about writing opportunities;
    • Working the LLJ/Spectrum table during the CONELL marketplace to recruit authors;
    • “Booth duty” at the AALL membership booth during the no-conflict times in the exhibit hall;
    • Introducing the winner of the article of the year award at the LLJ/Spectrum author reception.

I truly enjoy this job. It gives me another chance to give back to the profession by writing and talking about law librarianship and working with AALL members and headquarters staff. 

If you have questions, don’t hesitate to contact me or post them to the blog.

Book Review – Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance

Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance, J. Harvie Wilkinson III. Oxford University Press, 2012. 176 pages, hardcover, $21.95.

Cosmic Constitutional Theory is the third volume in the Inalienable Rights Series. This particular volume is authored by J. Harvie Wilkinson III. Widely regarded as one of the most respected judges in the country, Wilkinson has served on the United States Court of Appeals for the Fourth Circuit for more than 20 years and has been on the short list for the Supreme Court. Unlike the other authors in this series, Wilkinson does not advocate for any one particular theory of constitutional interpretation, nor does he offer up his own theory. Instead, he argues that the prevailing theories have done more harm than good and that there should be a return to judicial restraint. Because of its focus on the current theories of constitutional interpretation, this book would be a great addition to any academic legal library or any library that focuses on constitutional law and theory.

The bulk of Wilkinson’s book is spent critiquing the four leading constitutional theories of today: Living Constitutionalism, Originalism, Political Process Theory, and Pragmatism. The text of the book consists of a short introduction and five relatively brief chapters followed by extensive endnotes, an acknowledgement, and an index. The first four chapters each cover a different academic theory of constitutional interpretation. For each of the four leading constitutional theories, Wilkinson begins with a description and brief history, touching upon the proponents of the theory and how each theory has been applied from the bench. Once the basics are out of the way, he focuses on each theory’s virtues and then finally its vices. 

The first theory critiqued is Living Constitutionalism, which the author titles “activism unleashed.” Chapter two then tackles the next most prevalent theory, Originalism, which the author describes as “activism masquerading as restraint.” Chapter three discusses the Political Process Theory, which focuses more on the judicial process than on the outcomes. Last, the fourth theory covered, which was not meant to be a theory but more of an alternative system of review, is Pragmatism. When analyzing each theory, Wilkinson doesn’t just describe its negative points; he also makes an attempt to list its positive applications. However, in the fifth and final chapter, despite any virtue a theory may have, Wilkinson argues they all have failed and are a threat to our democracy. 

Throughout the book, Wilkinson argues that while each theory is advanced as an answer to the problems of constitutional interpretation, they are actually threatening the public’s ability to self-govern. According to Wilkinson, issues that used to be decided by the people are increasingly being decided by the courts, with judges no longer practicing judicial restraint but instead promoting competing political theories. The author does not offer a theory of his own, instead arguing that we do not need another theory since all of the theories that have previously been offered have failed. In the place of a theory, Wilkinson calls on judges to exercise judicial restraint.

This book is well written and extremely easy to follow. It could easily serve as a basic introduction to constitutional theory with its thorough description of the pros and cons of each competing theory.

Lisa Watson is government documents librarian at Elon School of Law in Greensboro, North Carolina.

Highlights from LLAW Briefs, Spring 2012

The Spring 2012 issue of LLAW Briefs, the publication of the Law Librarians Association of Wisconsin, has a number of interesting items. Especially notable is a review of the Library Technology Conference. Several sessions focused on methods of delivering library resources via mobile device—such as QR codes and mobile-optimized sites—and another discussed cataloging emerging technologies, like interactive e-books.

Another article notes that the Uniform Electronic Legal Material Act may be introduced in the Wisconsin legislature in the near future. The AALL Government Relations Office and many members have taken an active role in promoting the adoption of UELMA. Finally, LLAW sponsored a law librarian career day for students and alumni from the University of Wisconsin-Madison. The event enabled prospective law librarians to meet practicing librarians and tour court and firm law libraries.

Book Review – Joint Tenancies: Landlords and Medical Marijuana Businesses

Joint Tenancies: Landlords and Medical Marijuana Businesses, by Mike Widener. Yeoman Timber, LLC,  2012. E-book (PDF), 95 pages. $9.95.

Here in Oakland, California, the “Princeton of Pot,” Oaksterdam University, a school offering classes for those wishing to become involved in the medical marijuana business, was recently raided by the FBI, once again calling attention to medical marijuana dispensaries and the rigmarole that surrounds state law versus federal law when it comes to the sticky situation of cannabis clubs. Mike Widener, a law practitioner from Arizona and professor at the University of Phoenix, has penned a short and informative treatise in e-book form, titled (pun surely intended), Joint Tenancies. The book explores the subject of commercial landlords and the risks of renting to medical marijuana enterprises, or as Widener abbreviates, MMEs. Widener claims this is the only book of its kind published in the United States, and while there are other works that cover MMEs, it appears that, for now, it is indeed unique and would be of use in a law library.

Widener’s work serves as a useful and thought-provoking text for any landlord considering renting to an MME. He makes it very clear in the preface that he is not offering any legal advice and that as an attorney he cannot represent medical marijuana businesses because the transport and sale of cannabis are federal crimes. Widener notes that at the time of his book’s publication, 16 states have  medical marijuana legislation on the books and 18 more states  have proposed legislation permitting medical cannabis use,  no doubt  with the gleam of shiny new tax revenues glinting in their glazed eyes.

Widener acknowledges that he doesn’t know the nuances of the laws in each state and strongly advises that landlords considering renting to MMEs seek legal counsel in their local communities. In just 10 chapters, Widener covers the pertinent topics landlords should consider and research before entering into a lease agreement with an MME. In addition,  this text could be a resource for those working in the property professions, i.e. real estate agents, real estate lawyers, investors, etc. It would also be of interest to neighboring residents and businesses.

Although Widener acknowledges that his work is not meant to entertain, he can’t resist using a font that is reminiscent of clouds of smoke for the title and pun-laced chapter titles, such as “A Budding Tenant Niche,” the “Straight Dope on Private Land Use Covenants,” and “Bogarting a Landlord’s Joint-Forfeiture Statutes.” The chapter titles are not only descriptive but also appealing to the reader (at least this pun-loving reader).

Widener’s work is thoroughly researched with QR Codes that link to core documents online, easily accessed by a smart phone or tablet with a QR reader app installed. This book would be a welcome addition to any law library as a useful tool for researching what will surely become an increasingly common legal issue as more states attempt to enact medical marijuana legislation. Widener also includes some forms that a landlord might use for this type of transaction, with the caveat that these forms do not guarantee that a landlord will not be subject to the loss of property if forfeited or to personal criminal prosecution. The book is published by Yeoman Timber, LLC and is available for purchase via the internet as a PDF for $9.95 at

Rebekah Henderson is a part-time reference librarian at the Alameda County Law Library in Oakland, California.

May 2012

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