Copyright Questions of the Month: A Troll May Throw You under the Bus

Q: I’ve been hearing about “copyright trolls.” Is that anything that someone in a school environment needs to worry about?

A: If you haven’t read about copyright trolls, you need to look at this interesting compilation of some true troll stories (and not the kind where the billy goats win!): https://www.eff.org/deeplinks/2010/09/field-guide-copyright-trolls

Essentially a copyright troll is someone who purchases the copyright of (typically) a newspaper or blog article that the troll has seen reposted in whole or in part through an e-mail list or in a blog. A troll may also register a copyright in a previously unclaimed or unregistered work solely for the purpose of filing suit on the copyright. Usually the work they purchase has been excerpted online in some fashion, so the purchaser knows that there is at least an arguable case that the copyright may have been infringed, even if the person using the excerpt may have a valid fair use defense. The troll knows that your insurance company will not want to spend hundreds of thousands of dollars to defend the suit in federal court, and will quickly urge you to settle the case. The troll is delighted to take a settlement of several thousand dollars (which is a good return on his investment of under $100 to register the work— or a small amount to purchase the rights to an article—and about $350 to file suit in federal court).

Why is this important? Take a look at what happens when some folks post even portions of articles from online newspapers. Citing the source is the key way they find the articles to purchase. While you may have a very good fair use case to make, these aggressive trolls will force you to pay tens of thousands of dollars in legal fees for the privilege of asserting your fair use defense in court. Pay attention to who is doing this, and with what sources. One of the groups targets nonprofit defendants who are unlikely to have deep pockets to defend a lawsuit that is typically filed far away from the location of the organization. Most of the articles on which the suits are based can be found in news sources that you can find elsewhere. It may be time to avoid a particular source for the purpose of posting online when you know it may target you for a copyright lawsuit. And remember that this applies to portions of articles reposted in blogs or mailing list messages, which is not the same as sharing or e-mailing a link to the complete story.

STORYTIME AND COPYRIGHT

Q: I recently read something written by someone I respect regarding matters of copyright, and that article made me concerned that something I do regularly in my library may violate copyright law: storytime. This expert said that storytime is an unauthorized use of a copyright. I’ve been doing storytime as long as I have been a librarian, and now I’m concerned that I’ve been modeling inappropriate use of copyrighted works. What is your take on storytime and copyright?

A: You should not worry about live storytimes with books that you or the library own. There are actually three exceptions for storytime in the current copyright act: § 109(c) and §§ 110(1) and (4). One of the rights of a copyright holder is the right of public display. Holding up the book to show the pictures is a “display.” Any display in a school is “public.” Section 109(c) makes the display of the images, one at a time, a non-infringement, even if you use a document camera to show them to a large audience. An important provision in that section of the law, though, says that such a display is only okay if those viewing the images are at the “place where the copy is located.” In other words, it must be a display in person, not via television or a recording of the storytime on film. This exception only applies for works that qualify under the first sale doctrine, and not for works licensed or loaned. So you should not do a storytime for a book that you have borrowed by interlibrary loan, or an electronic book that you only have under license, unless you have in the license the permission to display the book.

Section 110(1) is the same section of the law that allows schools to show movies for instructional purposes without having to purchase public performance rights. Public performance and public display are similar rights—the difference is primarily regarding the medium being used. Static works are displayed; active works are performed, such as film, music, and dance. The section of the law says that display of a work by instructors or pupils in the course of face-to-face instruction in a nonprofit institution is not an infringement when the display takes place in a classroom or other instructional place.

One can make a good argument that reading a book aloud is a “performance.” Assuming that storytime is a “performance,” section 110(4) grants schools the ability to “perform” a non-dramatic literary work, as long as that performance is not “transmit[ted] to the public.” In addition, the person doing the performance must not receive payment for the performance, and there must be no admission charge that does not go entirely towards educational purposes. This exemption can disappear if the copyright owner gives notice at least a week before the proposed performance that he or she objects to the performance.

Since storytime involves both reading the book (a performance) and showing the pictures (a display), the combination of these sections of the Copyright Act gives schools the ability to read books aloud live and show the accompanying images without committing any infringement of copyright. You should not worry at all about your live storytimes. The law doesn’t provide the same exemptions if you choose to record your storytimes or transmit your stories via television, cable, or the Internet.

Every effort is made to provide accurate, up to date information in response to copyright questions. However, this column is not intended to take the place of legal advice. For more information, consult your school district’s attorney.