Templates

Because libraries are guardians of the first amendment, and because there is no consistent definition of “pornography,” the answer is: NO. I cannot offer legal guidance that simply bans porn…any more than I could suggest that a public library start charging admission.  Such guidance would cut into the fundamental heart of a library’s mission. 

But there is a way to achieve your underlying objective:  Focus on civil rights.

How does a “focus on civil rights” keep porn off library computers, you ask?

Let’s start with the fundamentals: why would a library would need to consider limiting internet porn in the first place?  The answer is pretty simple.  Aside from the malware—and the abysmal amount of copyright theft perpetrated by many porn sites--[1] no one wants to work or congregate in a place where other people are watching porn.

At best, it’s icky.  At worst, it creates an atmosphere of gender-based discrimination (of any gender…of any sexual orientation…and of those who do not gender-identify, too).  So in New York, where the stakes for a sexual harassment claim have never been higher[2], providing a porn-free environment is an unquestioned goal at most places of employment[3]…including libraries.

And so the true question here is not if a library can outright restrict access to internet pornography, but rather, how can a library make sure it’s not honoring one civil right at the expense of another?   How does a library remain a beacon for the first amendment, but stand as  a bulwark of equal access and fair treatment, too?

This balance can be achieved.  The key, just like in other matters involving fundamental rights, is to have a clear, well-developed policy, applied by trained professionals, well-documented and guiding you every step of the way. 

Every library policy should be customized for its unique environment (and harmonized with other policies), but here is a quick example of the type of document I describe, designed to fit into a library code of conduct, patron access agreement, or other behavior-related policy:

The[INSERT NAME] library absolutely respects users’ rights to reliably and confidentially access content, but also has a duty to ensure that its shared community space is free of behavior that demeans, intimidates, or discriminates against patrons, other visitors, and employees.

Therefore, to ensure compliance with local, state, and federal civil rights laws, anyone using or displaying library resources in a manner that creates an atmosphere that could harass, sexually harass, or discriminate against others may be asked to modify their behavior. 

Examples that may require staff to ask you to modify behavior include, but are not limited to:

• Prominently displaying content featuring racial, gender-based, or religious invective or insults;
• Prominently displaying scenes of violence;
• Prominently displaying sexual content;
• Printing and/or prominently displaying materials in way that appears to target others.

Any request for modification, action or determination under this policy will place the highest priority on the right of patrons to access content, and will seek ways to address the concern without restricting that access.  Modification could include:

• Agreeing to move the material on another table at a less trafficked area;
• Scheduling use of a shared resource to ensure predictability of display;
• Collaborating on a solution that ensures optimal access to content as well as a safe and respectful environment for all.

In some cases, however, “modification” may simply mean a request to discontinue the behavior.  Examples include but are not limited to: deliberately leaving images of violence in a children’s area; prominently displaying sexually graphic content in full view of other patrons and employees; any activity that uses content to negatively target another person in the library.

Patrons who refuse to modify their behavior or to collaboratively resolve a concern may be found in violation of the library’s Code of Conduct and subject to restriction of privileges, per library policy.

“Prominently displaying” means the content is intentionally or incidentally visible to others, risking a hostile atmosphere. 

By focusing not on the restriction of “pornography,” but on the creation of a respectful and welcoming environment for all, a library positions itself to ensure optimal access to content, but to follow state, local, and federal civil rights laws, too.  And since one person’s anatomy textbook is another person’s porn, a policy that allows for proactive solutions, using incremental and creative adjustment, helps balance liberty with a respectful environment.

What part of first amendment jurisprudence allows this? The first amendment does prohibit the government from abridging the freedom of speech.  However, it does not guarantee that all forms of protected speech may be heard on property owned or controlled by the government. Instead, the state (just like an owner of private owner property), has “power to preserve the property under its control for the use to which it is lawfully dedicated.”  Further, as in any case “where the principal function of the property would be disrupted by expressive activity,” courts will not consider the main reading and reference area of a public library to be public forum where expression cannot be regulated.[4]

Here is an example: let’s say I am working on book about inter-generational trauma.  With only the best of intentions (writing a book exploring how the trauma of one generation can impact the next) I claim a table for myself near the reference desk, and start laying out books with pictures from the Jim Crow era.  At the next table over, a young person sees the pictures, and suddenly finds the library is not the warm, happy place it was ten minutes ago.  She gets very emotional, and the reference librarian notices.  Using the policy, the librarian could then say: “I see you are working on an important project.  Since this is a high-traffic area and these are some very stark imagines, can you consider moving to a table where you can access the material, but not risk a negative impact on others?  That would help us serve you while also making sure the reference area is welcoming to all.” 

If I say “yes,” and move, we all move on.  If I say “no,” there may be a need for further discussion, but under the library’s policies, one way or another, an adjustment is made.

How could this work with a patron accessing porn on a public computer?  The librarian states:  “This is a public area[5] that serves many people, and its environment must be respectful of our visitors and employees.  What you are viewing is not consistent with that requirement, so it cannot be displayed is this area.  Please stop now.” 

If I say “yes,” and move, we all move on.  If I say “no,” there isn’t much need for further discussion, since under the library’s policies, one way or another, an adjustment will be made.

This is what is called in first amendment jurisprudence a “time, place, and manner” restriction.  Considering the mission of the library—to serve all—a policy of keeping the common areas free of graphic violence, invective, and sexually explicit content is very reasonable…especially since most parts of a library are not considered a “public forum.”  It is the same restriction that allows librarians to ask people to speak quietly or not play music on their cell phones that others can hear.

I appreciate that this approach does require library staff to make and enforce value judgments about content—and some librarians may feel uneasy about that role.  But the essential function of libraries rests on the ability of librarians to make content-based decisions.  In fact, because they are trained to categorize and assess various types of information, librarians are some of the best-qualified people in the world to take such a burden on. 

The case Sund v. City of Wichita Falls—also called the “Heather Has Two Mommies” case—shows the importance of qualified professionals making content decisions using consistently applied, well-reasoned policy.[6] In that case, a town board tried to allow patrons to over-ride a head librarian’s decision as to where to shelve a children’s book depicting a positive, happy tale of a girl and her two mothers.  When striking down the law, the judged cited the library’s careful accession policy and the level of training required of the librarian—and then confirmed that she had the final say in shelving decisions. 

Librarians use such content discernment on a routine basis, and today’s civil rights laws demand they apply it to not only collections, but the library’s environment, as well.  A policy that is well-developed, harmonized with other policies, and the subject of routine training and practice for staff can give this responsibility a reliable formula.  Like all critical policies, such a policy should be custom-drafted and carefully considered before being approved by trustees, since if the resulting discernment is ever challenged, the board will need to stand by—or overrule—how it was applied in the field.

Balancing conflicting civil liberties requires careful analysis and diplomacy.  But at the end of the day—I’m just gonna say this—unless they work in a very unique type of place, librarians have the right to expect a workplace largely free from internet porn.[7] That freedom—and the freedom of patrons to access content without undue restriction—starts with your library’s commitment to civil rights.

Thank you for this important question.

 

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[1] The only reason I know this is because I am a copyright attorney.  No, really.

[2] See the new laws passed in 2018 about increased employer liability for sexual harassment.

[3] Obviously the sound editor at an erotic film production company hopes for a steady stream of work, but that’s the exception, not the rule.

[4] See the case Citizens for Cmty Values, Inc. v. Upper Arlington Public Library Board of Trustees, 2008 U.S. Dist LEXIS 85439 (2008), United States District Court for the Southern District of Ohio.

[5] I have no pre-emptive solution for people who bring their own laptops and are able to reserve a room, unless you have a policy that employees may enter such a room at any time, in which case my same advice applies.

[6] This case is a good read for any librarian seeking a refresher on the important of clear policy and a supportive board of trustees.  It is also very laudatory of the librarian who fought for the right of the library to properly shelve the book.

[7] I am not a judge, so I get to have a definition!  Here is it:  “Anything on the internet depicting a sex act, that comes with at least two pop-up adds.”

There are few relationships that can be as rewarding—and as fraught with tension—as the relationship between neighbors.  I have seen neighbors unite to fight for preservation of their streets historic assets, and I have seen neighbors bring law suits over shrubbery.  A library is wise to cultivate a good relationship with its neighbors, just like a person would at their own home.

What laws impact a library’s relationship with its neighbors?  Most libraries exist on land [1], or within a building, so the controlling law is called “real property” law.  “Real property,” which could be land, or a building, is distinct from “personal property” (like a book) or “intellectual property” (like a logo).  Although many laws impact real property, in New York, the major one would be the “Real Property Actions & Proceedings Law” or “RPAPL.”

Also impacting real property and the relationships between neighbors are: building codes, planning regulations, zoning, permitting, contract, business, and construction-related law.  And of course, the education law, not-for-profit corporation law, and municipal law can all apply to how a library handles real property issues, while grant terms and donor restrictions can be relevant, too. 

And if the old oak in front of your library suddenly crashes into the roof of your neighbor, insurance law may come into play, as well.

Any one of these laws—and countless others—might be considered by a lawyer advising a library if there is a concern or dispute with a nearby neighbor.  But are there any general “best practices” to abide by?  Based on my experience with construction, real property, landlord-tenant, and contracts—here are some simple practices for preventing, and if necessary, addressing potential neighbor disputes.

Practice #1: Know where you stand

Every library should know precisely what property they occupy, and how they occupy it.  To do this, I recommend what I call a “binder solution.” 

For libraries that own their own property, the binder contains:

• Deed
• Survey
• Assessment information (even if the building is off the tax rolls)
• Mortgage (if you have one)
• Any recorded easements or rights-of-way
• Current and past insurance summaries and policies
• Permits (if any)
• All contracts and documents related to maintenance
• Fixture and structure warrantees (driveway warranty, roof warranty, etc.)
• Deferred maintenance plan

Basically, this binder should be a one-stop shop for information relating to the library’s property and the legal relationships it has with the world. 

For libraries that do not own their premises, the binder contains:

• Lease
• Survey or floorplan of library’s portion of building
• Current insurance summary or policy
• Permits (if any)
• Warrantees for on-site physical assets your library paid for/owns (copier warranty computer system warranty, etc.)
• All occupancy-related correspondence with landlord, including notice of defects or safety hazards

Why does all this matter?  Many real property battles are lost when owners over-state or mis-portray their rights.  Never initiate a property matter with a neighbor—even a seemingly simple one like a noise complaint—unless you know these documents will back you up (plus, having this material organized is just good stewardship).

Practice #2: Know your neighbor

This advice works on two levels.

The first level is obvious: know your neighbors.  Invite them over.  Know the names of their kids and what sports team they root for.  That type of outreach is insurance against any number of serious disputes.

The second level is a bit more covert: what’s in their “binder”?  Are they the owner?   Are they renting?  Might they be a squatter?  Basically, to the extent possible, develop a “binder solution” for them, too.  In getting to know them a bit better, you might develop some insights on the roots of your dispute.

Practice #3: Isolate this issue

In my experience, neighbor disputes can be some of the nastiest legal battles. I am no sociologist, but I imagine this is because when you fight with a neighbor, no one gets a break.  You are alongside and--in some places practically on top of—each other, 24/7.    And sometimes people are just mean…or have too many of their own problems to be able to honor another’s.

That said, if you have a potential neighbor dispute, isolate what you think the true cause might be.  Is the neighbor ranting about your ice cream social signage actually angry about fines from 1989?  Is the neighbor complaining about “those people parking” actually kind of racist? Is the dispute really about noise, or is the neighbor a narcotics peddler?

The point of this is: make sure you really know what’s up.  That way, you can keep things professional and separate if matters get contentious, and know what type of team to assemble to handle the dispute.

Which brings us to…

Practice #4: Use a professional!

Library staff are trained to help people find information, to select and categorize library acquisitions, and to operate their library according to applicable ethics and regulations.  They are NOT trained lawyers, surveyors, law enforcement, or alternative dispute mediators.

If your library is in the midst of a neighbor dispute, consider retaining a property manager, lawyer, real estate agent, or other paid expert to be the primary interface with the neighbor.  Their experience will bring a better result, and the distance they lend the situation may de-personalize it and save your library staff time and stress.

Practice #5: Pick your battles!

Neighbor disputes should only be entered into if they can be won decisively, quickly, and in a way that aligns with your mission.  For a community library, that means identifying an overall strategy before you start, and using only tactics that you can publicly defend.

It would be impossible to write an essay on this (although a book might be fun), but here is a chart of some typical scenarios, and how to pick your battles:

Your Library	Your Neighbor	The Dispute	The Law	Fight the Battle
Owns its property, and just put a new skylight in.	Is a long-term renter.	With the new skylight in, the ska music they have been blasting since 1987 can now be heard in the periodical section.	Could be in violation of a noise ordinance. Could be a violation of their lease.	Best to first gently and informally raise the issue with their landlord; if you’re in a small town, make sure you know all the players.  This could be a diplomatic (and loud) nightmare.
Rents its property, and has had the same lease since 1996.	Owns their property across the street.	After getting all the proper permits, your neighbor excavated for a new building and hit a natural spring, causing flooding in your basement and ruining a significant array books.	So much!  This would call for an immediate and very well-organized response.  But even before you call your lawyer, call your landlord and your insurance carrier.	You’d have to pick which battle.  Moving to a new location might be more mission-aligned than staying in a potentially damaged and moldy structure.
Is a public library that has occupied the second floor of the Town Hall 1934, but there’s no lease and no one has really questioned the arrangement.	Is the Town Historical Society, who have been in the basement of the Town Hall since 1974.	The Historical Society has, without asking, recently taken over your community reading room with a display case of genealogical charts. The room was recently redecorated with a grant that requires the room be accessible to all.	The only entity with clear rights here might be the donor!	Ugh.  This is the type of battle that can get ugly, quickly.  Hopefully after you assess your position with a professional, some diplomacy and living up to any contractual obligations can save the day.
Is buying a historic property[2] to rehab and move into.	Owns the house next door.	In surveying the property, you find out that 5 years ago, your neighbor built their fence over two feet onto your new land.	This could involve looking at the survey, searching for easements (permission to use your property), and making an inquiry of the person you bought the property from.	You have to address it, since leaving the fence there without protest could result in the property eventually becoming the neighbor’s!  But be strategic and consult an attorney before you raise it externally (including with the neighbor).

My overall guidance?  Send neighbors a basket of fresh fruit ever year, and when you hand-deliver it, spend 10 minutes catching up and asking about their families.  It’s amazing how much ill will can dissolve over apples and pears.

Good luck out there!

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[1] Inspired by this sentence, I checked: yes, as I am sure my readers are aware, there are libraries boats and library planes, too.

[2] I love historic properties and historic preservation.  That said, if you plan to do this, make sure your team has at least one person who has done a major preservation project before.  Those buildings are full of expensive surprises.

On the surface, these questions are very simple, since they boil down to: what are the laws impacting the flow of data comprising patron debt records (bills, fines, referral to collections), and who needs to follow those laws?

Of course, underneath that simplicity, the questions are mission-critical.  Libraries and library systems need to follow the relevant laws without error, and to ensure that while doing so, they reinforce the mission of their institutions.[1]

For this question, we’ll assume “patron account debts” as referred to by the member, are the four most typical “cost” records that a library maintains about patrons:

• Late fee records
• Replacement/damage fee records
• Hold fee records, and
• Ancillary costs records (duplication fees, etc.). 

Expressly excluded from this list of “patron account debts,” and from consideration in this answer, is debt related to deliberate property damage, personal injury, or express [2] contractual liability.  

And with those specifications in mind, here we go.

What laws or limits should libraries consider when storing and collecting patron account debts? 

To get to the important details in this question, we have to start with the fundamentals.

The first legal consideration when storing and collecting patron account debts is the nature of your library or library system, which is governed by a combination of the New York State Education Law (“Ed Law”), and the New York Not-For-Profit Corporations Law (“NFPC Law”), your charter, and bylaws.[3]

These laws and documents impact how your library or system 1) owns property; 2) sets the terms for that property to be borrowed; 3) maintains records regarding such activity; and 4) (if relevant) contracts with third parties (such as collection agencies or data repositories) to manage them.

The second legal consideration is the nature of the patron debts: are they set by law or regulation (like a tax or permit fee), or are they the by-product of a policy or agreement (like a service contract)?

The Ed Law and the NYPC Law, and related regulations, do not prescribe late fees, replacement fees, hold fees, or ancillary fees for patrons.  Rather, the Ed Law emphasizes that use of a library should be without costs to its community, as can be seen in this excerpt from Ed Law Section 253:

The term “public” library as used in this chapter shall be construed to mean a library, other than professional, technical or public school library, established for free public purposes by official action of a municipality or district or the legislature, where the whole interests belong to the public; the term “association” library shall be construed to mean a library established and controlled, in whole or in part, by a group of private individuals operating as an association, close corporation or as trustees under the provisions of a will or deed of trust; and the term “free” as applied to a library shall be construed to mean a library maintained for the benefit and free use on equal terms of all the people of the community in which the library is located. [emphasis added]

This “free” access within the area of service is also emphasized in Ed Law Section 262, which states:

Every library established under section two hundred fifty-five of this chapter shall be forever free to the inhabitants of the municipality or district or Indian reservation, which establishes it, subject always to rules of the library trustees who shall have authority to exclude any person who wilfully [sic] violates such rules; and the trustees may, under such conditions as they think expedient, extend the privileges of the library to persons living outside such municipality or district or Indian reservation.

That said, state law does contemplate the need for libraries to incentivize the return of books, and in solving that problem, it does not mess around.  As provided in Ed Law Section 265:

Whoever wilfully [sic] detains any book, newspaper, magazine, pamphlet, manuscript or other property belonging to any public or incorporated library, reading-room, museum or other educational institution, for thirty days after notice in writing to return the same, given after the expiration of the time which by the rules of such institution, such article or other property may be kept, shall be punished by a fine of not less than one nor more than twenty-five dollars, or by imprisonment in jail not exceeding six months, and the said notice shall bear on its face a copy of this section.

Forgive me if you find this boring, but I find it fascinating: New York State law’s only mention of fines in the context of accessing library services is a section that authorizes libraries to work with local law enforcement to impose fines and enforce the return of books through criminal prosecution.  Meanwhile, the law makes NO mention of collection of late fees or penalties per policy or through civil debt collection.[4]

Although Ed Law 265 is the only legislation to prescribe a remedy for failure to timely return library materials, I am not aware of any public or association library that actively uses it, although this ability has been on the books in its current form since 1950.[5]

So if the debt a library patron owes a library isn’t a “fine” under Ed Law Section 265 (or up to six months in jail!), what is it?

Rather than pursue the “265” option, most libraries have elected to use the  authority of their boards under Ed Law 226, and the NFPC Law, to simply condition the acquisition of a library card (and thus, access to core library services) on the patron’s knowing consent to a voluntary system of fines and penalties.   In other words, patrons agree to pay money in return for the ongoing privilege of borrowing books.   

While recent developments under consumer protection laws characterize it otherwise,[6] this voluntary, quid-pro-quo condition of otherwise free library access is viewed by the law as “contractual.”

Library boards, empowered by the law to set policy for the proper functioning of the library, use this contractual system to:

• Incentivize return of assets (late fees);
• Replace items that are not returned (replacement costs), and
• Offset extras that are not part of a library’s core services (access to on-site photocopiers; hold fees for out-of-system interlibrary loans).[7]

This was a long answer to this second consideration, but it is critical.  What is the nature of patron debt?  It’s contractual.  This is what enables library debt to be farmed out for collections, or certain patron debt to be discharged in bankruptcy.  This will become relevant further into our analysis.

The third legal consideration is that every record related to patron debt is subject to the requirements of New York’s CPLR 4509, which means that—other than as needed for the proper functioning of the library—the records must be kept confidential.  They are just as private as circulation records and internet searches.

The fourth legal consideration is the medium of the record: hard copy, or electronic (or both)? In the event the record is electronic, the SHIELD ACT, which went into effect this March, may govern the keeper’s security and data breach requirements.

And finally, the fifth legal consideration is: what are the parameters for enforcing or collecting on the debt, anyway?  A combination of state and federal law, together with the library/system’s policy.  We’ll tackle this factor in-depth in the “diagnostic” section, below.

Which brings us to the member’s next two questions:

Who is responsible for compliance: the library where a patron is registered (they set their own blocking policies), or the system maintaining the records?

Similarly, does the library system (who manages an ILS on behalf of its member libraries) have the authority over library records, including that of purging library patron accounts, according to local policy? 

As you can probably tell by the remaining length of this “Ask the Lawyer”, there is not one, simple answer to either of these questions.  In fact, there are multiple answers, controlled by multiple factors.

Here is a process for sorting those factors out, and ensuring your library or system is enforcing fines and fees within the boundaries of the law.

Does the library or library system avail itself of Ed Law 265?

Are you one of the rare institutions actually using (not just threatening to use) law enforcement to assist with returns?  If “yes,” there should be a written policy for sending out notices and coordinating with local law enforcement. 

Also, if you do this, please write me at adams@stephaniecoleadams.com, because it would be really interesting to hear about your experience, you bibliophilic unicorn.

If the answer is “no” …

What document shows the patron has expressly agreed to pay the debt your library is charging as a condition of having a library card?

This would be the policies or terms the patron consented to follow when they signed up for their card.  It should be a clear statement of fines and fees that patrons expressly agree to, and the patron’s express consent to that agreement (signified by a signature or authenticable electronic signature) should be demonstrable at any later date the library or system needs to enforce the debt.  In some systems, this might even be covered in the member agreement (or a policy).

If the conditions showing a clear consent to fees aren’t clearly set forth in one document, or present at the time they are incurred (in a way that will show the patron knowingly incurred the cost), that should be corrected.

Many boards and staff inherited fee structures from previous administrations.  It is wise to revisit the compliance and function of fine policies and the systems for enforcing them no less than every five years.  This is particularly true since in the last five years, there have been changes to how fines may be collected, and changes to laws regarding maintenance of electronic records. 

Is that “debt agreement” with a single library, or an entire system serving that library? Whoever the agreement is with (the “creditor”) is the entity directly responsible for how the debt is enforced and related legal compliance.

This is important to clarify.  If the debt agreement is with a system, that system is the “creditor” and the system should be the entity maintaining the information, not the patron’s main library.  On the flip side, if the debt agreement is solely with a library (and the system has separate terms, or there is no system involved) that library is the creditor, and is the party responsible for the information’s use and maintenance.  The documentation related to fees, and the enabling policies, should leave no room for ambiguity in this.

This does not mean that any library within a system needs to conform its fine policy to all the others in that system.  Rather, within the bounds of the law, it means that a system enforcing multiple member library policies must ensure that patrons have notice of the different fee structures they might be agreeing to, before the imposition of a fee.

Wait! What about library systems that maintain overdue records and enforce collections on behalf of member libraries?  Or libraries and systems that contract those services out.

This is where terminology becomes important.  In a policy to charge fees for late books and replacements, a patron becomes a “debtor” (an entity who owes money to another entity).  The entity they owe it to (the library or system) is the “creditor.”  Meanwhile, any third party hired to track the information related to the debt on behalf of the creditor is a “contractor.”

It is the creditor—the entity situated to assert a debt in a court of law—who is responsible for the proper management of debt-related information. While they can retain a contractor to manage the database, and even perform related functions (sending out notices, making calls to encourage returns), they remain the party ultimately responsible for use and maintenance of the information.  They are also the sole party empowered to sign over the authority to collect the debt to an agent (a “collection agency”).[8]

In New York, some library systems are the creditors, but some (if its founding documents, the membership agreement, and policies provide for it) are just the contractors for their member libraries. The ability to set this relationship up, and to effect the resulting responsibility and authority, starts with the entity type and its contractual affiliations, which will vary from system to system, and will change based on charter, bylaws, and strategic decisions. 

This is why founding documents are always the “first legal consideration.”

What policy at the entity required to maintain the information (the creditor library or system) clearly sets out how debt-related information is generated, maintained, used, and purged?

It can have any number of names, but this policy should reference the terms the patrons have agreed to, all relevant laws, and be tied into the institution’s policy for data breach.  If the creditor uses a third party to store the data, or a collection agency, baseline criteria for those contracts is also part of this answer.  Further, the policy should specifically address how long fee records are maintained after they are incurred, and under what terms patrons might be forever barred from borrowing privileges based on such fees.

For libraries and systems that use fees, below is a sample policy that covers the different considerations of charging fees.  Variable items are in yellow, critical items (meaning a library/system should have a clear policy and provision regarding this) are in red:

TEMPLATE Policy Regarding Terms, Records, and Payment of Patron Fees

Terms of Borrowing

As a condition of borrowing privileges, patrons agree to fees as set forth in [all documents listing a fee].

Education Law 265

The [XXX library/system] [does/does not] use the remedies allowed by Education Law 265 for the return of late items.

Threshold for Suspension of Borrowing

Patrons with over [$amount] of unpaid fees will have their borrowing privileged suspended.

Fee Records

Information regarding fees is housed on [place/entity housing information].

The security provision for [place] are [insert].

[Place] is only accessible to trained employees of [institution and any affiliates who must access it].

Notice of fees owed will only be sent out via sealed envelope sent via USPS, to the email of record of the patron, or provided on a printed paper upon the patron’s request in person. 

Information related to fines shall not be conveyed over the phone unless as an ADA accommodation.

Collections

Once outstanding fees reach [$threshold amount], a third-party collection agency may be used.

The contract for any collection agency shall include a commitment to follow all relevant consumer protection laws and [insert priorities of the library regarding contact with patrons].

To ensure confidentiality of patron records as required by CPLR 4509, no such agency shall be authorized to contact patrons at their residence in person or via the telephone. 

The [library/system] shall cease collection efforts as to any patron who informs the library that they have filed bankruptcy.  To re-institute borrowing privileges during bankruptcy, the patron should send a copy of the bankruptcy filing to the library. In the event new charges after the bankruptcy filing again reach the threshold for suspending borrowing privileges, privileges will be suspended.

Other than trained employees, and any third-party collection agency, only the patron and those duly authorized per CPLR 4509 may access records related to patron fees.  Collection notices may only be sent via USPS, and to the email of record to the patron; contact may only be via phone if initiated by the patron.

In the event a patron fee record is authorized or accessed in violation of this policy, the library/system will take all appropriate corrective action, and if required, will follow the notification procedures in the library/system’s policy regarding data breach.

Payment of fees

Fees will only be accepted by the [library/system] per the relevant fiscal controls, as set out in [reference fiscal control policy/ies, or the terms in a collection agency contract].

Accounting

Unpaid fees are listed as “receivables” and accounted for in book-keeping as required by GAGAS.

Unpaid fees are no longer collectible in a court of law six (6) years after they are incurred, and thus are written off the books after six (6) years.

Record Purge

After unpaid fees are written off the books, the library will purge all print and electronic records of such fees, except for preserving de-identified data for purposes of assessing library operations.

Permanent Loss of Privileges

Patrons responsible for [$amount] of unpaid fees (based on any combination of late fees, replacement costs, or other unpaid fees), unless the debt is discharged in bankruptcy, will be permanently barred from applying for another card from the [library/system], and such record shall be maintained in perpetuity.

 

Template language, of course, is only provided so it can be conformed to the unique position, practices, and goals of your library/system.  Within the scope set out above, there is a lot of latitude to do things in a way that reflects the unique needs of your institution. What is important is that there be clarity about the use of fees, and how they are managed.  Further, institutions placing a high priority on collectability of fines should have the full suite of language reviewed by their lawyer annually.

What policy or standard operating procedure at an entity NOT required to maintain the information, but accessing it for customer service, clearly sets out how debt-related information is accessed and not improperly shared?

For collaborating entities with access but not responsibility for fee records (for instance, a member library within a system, or a system who must follow a member’s policy) compliance with a clear policy or SOP should be part of routine training for employees and volunteers.

Standard Operating Procedure Regarding Confidentiality of Patron Fees

The [XXX library/system] maintains confidential data regarding patron fees, including late fees and hold fees, on a password-protected database only available to trained employees. 

The [adopting institution] accesses and adds to this information to assist patrons in accessing and addressing issues related to fees.

Other than trained employees, only the patron and those duly authorized per CPLR 4509 may access records related to a patron’s fees.

Notice of fees owed will only be sent out via sealed envelope sent via USPS, to the email of record to the patron, or provided on a printed paper upon the patron’s request in person.  Information related to fines shall not be conveyed over the phone unless as an ADA accommodation.

In the event a patron fee record is authorized or accessed in violation of this procedure, the [adopting institution] will take all appropriate corrective action, and if required, will let [XXX library system] know, so it can follow the notification procedures in the [XXXlibrary/system]’s policy regarding data breach.

Fees will only be collected per the attached [relevant fiscal controls/policy/member agreement].

Employees are trained on this standard operating procedure prior to doing any work related to fees, and not less than annually. 

This template language, is only provided to inspire a standard operating procedure that addresses critical details; any final SOP should be conformed to the unique practices of your library and system.

If a collection agency is used to encourage returns and enforce late fees, who retains the agency and monitors its performance?

This should only be the entity expressly authorized by the patron agreement to collect the debt (the “creditor”).

Is there a written policy for how the library or system accounts for patron debt in its books?  When, if ever, is that debt written off?

Patron debt is a “receivable,” meaning it is on the books as money owed to the library, until the debt is forgiven or written off.[9]

How long is a patron’s debt enforceable?

In New York, a debt owed per a contract is enforceable for six years, unless otherwise provided.[10]  Unless reduced to a judgment, efforts to collect debts that are enforceable run the risk of being considered unfair debt collection practices.[11]  However, a library can continue to condition borrowing privileges on truing up past accounts and returning/replacing lost items, even if they are not collectible in a court of law.

Does the record-keeping policy of the library or system tracking the patron debt continue the consequences for the debt after it is written off?  Or does the policy not write off the debt, ever? 

There is no “right” answer here, but there should be mission-sensitive harmony between policies and how the library is accounting for the debt.  If a 1995 debt was written off the books in 2005, it might not make sense to enforce the debt’s consequences past 2015.  Figuring this out is a great excuse for a library’s treasurer, accountant, and director to go out for lunch.

The final, final answers to the member’s question are therefore:

1) Every library and library system will have a different array of answers to the member’s questions. 

2) The key take-away is that to ensure legal compliance about managing patron debt, an institution must address the above-listed considerations.

Coda

OK. I said I wasn't going to say anything, but I have to.

Anyone who reads the law can see that use of late fees is not a practice baked into the legal roots of public and association libraries.  Rather, libraries in New York State are expressly created as free institutions—institutions assured the collaboration of law enforcement when there is an abuse of their free resources.

I appreciate that viewing the problem of unreturned books as a “criminal” matter can pose some concern for libraries.  However, as a former criminal defense attorney, and now a business attorney, I can tell you that in many ways, a system that caps fines at $25 and holds the threat of jail time for anyone—even those who can easily afford larger library fees than some—is actually comparatively egalitarian. 

That said, the fact that Education Law 265 is not more utilized shows that at some point, critical connections within communities (libraries and municipal prosecuting attorneys) were not forged to empower this approach. Rather, it seems that many libraries resorted to fines and collection operations, monetizing the human tendency to forget to return library books. 

Over time, these fees were regarded as a revenue stream.  In some places, it might even supplement budgets that should be fully supplied by sponsoring municipalities.[12]

I see this failure to use 265 as a failing of the law.  And as someone who has devoted their adult life to the law, that is disappointing to see. 

That said, I take heart that in 2015, 30 states’ Attorneys General took action to ensure library fees could no longer impact people’s credit, limiting the toolbox of collection agencies enforcing library fees.[13] And I am glad many libraries are taking fresh, critical looks at how to encourage responsible library use and good stewardship of library assets, without resorting to financial fees.  

The plain and repeated language in New York’s Education Law states that public and association libraries are “free” to their communities.  Compliance with that language should be the aim of every public and association library, even as they exercise their authority, also created by law, to protect their assets and serve their unique areas of service.

 

 

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[1] Much data-driven, well-researched, and passionate content has been generated about libraries’ use of fines and penalties.  This answer just sticks to using them with an eye to legal compliance.

[2] Meaning the debt is based on a specific, written contract with the precise amount owed set forth and signed by the patron.

[3] This structure is more fully set forth in answer like this one: Legal Requirements for Selling Library Building.

[4] Since the maximum imprisonment term of six months makes the detention of a library book a misdemeanor, this remedy is “criminal”.

[5] Further, when one looks at the centralized guidance for operating a public or free association library in New York, the issue of fines and fees is not substantively addressed.  While the excellent guidance here: http://www.nysl.nysed.gov/libdev/helpful/helpful.pdf states that policies, including those about fines, should be well-thought out, there is no background or guidance on fines. 

[6] Without turning this into a law review article, I’ll simply say that since 2015, credit reporting agencies have not been allowed to add library fines to credit reports, because they are not viewed as “contractual” (see the settlement terms found at https://ag.ny.gov/pdfs/CRA%20Agreement%20Fully%20Executed%203.8.15.pdf).  That said, in the legal biz, the conditioning of access upon the agreement to pay fines is “contractual,” and based on that construct, some libraries do use collection agencies to sue for unpaid fees.

[7] It has been m.y conclusion that hold fees within cooperative library systems are contrary to relevant law and regulations.  But that’s a column for another day.

[8] Of course, collection agency contracts should have protections and assurances requiring the agent to follow the law. That is partially to protect the creditor in the event their agent violates the law (and can also function to protect the library-patron relationship).

[9] An illustration of how such receivables are viewed under accounting procedures for public libraries can be found in this 2014 NYS Comptroller’s audit of Oswego Public Library: https://www.osc.state.ny.us/localgov/audits/libraries/2014/oswego_sd.pdf

[10] See Section 213 of New York’s Civil Procedure Laws and Rules.  The limitation period to use Ed Law 265 is two years, but since 265 doesn’t seem like a popular option, we’ll just stick that fact in a footnote.

[11] The Fair Debt Collection Practices Act (“FDCPA”) prohibits the use of any false, deceptive, or misleading representation or means in connection with the collection of any debt (see 15 U.S.C.S. § 1692e).

[12] In many ways, it is akin to the addiction municipalities have to municipal court fees.  If you ever need to hear a good rant, ask me about that one.

[13] The legal action discussed in footnote 7.

Part of the mission of higher education institutions is to bring important, provocative, and enlightening speakers to their communities. Over the years, this results in an impressive roster of authors, artists, professionals, politicians, comedians, dignitaries, and civic leaders, having spoken on campus. Sometimes, all or part of this roster was captured on film, video, or audio recording.

The rights to those recordings—and what can be done with them in the digital age—can present a complicated situation. Each individual recording comes with a suite of considerations that can make a digitization project difficult. But in a scenario like the one posed by the member, critical points of analysis can be assessed, so a way forward is found. Here are those critical points:

Assessment Point #1: Who owns the copyright (to the recording)?

First, it is useful to establish who owns the copyright to the actual recording. Since copyright to a recording vests in the person who created the recording, not the person being recorded (unless it was a selfie), this is sometimes easy to assess. As we say in the biz: “who pushed the ‘record’ button?”

If the recording was made by an employee of the institution, and there was no contractual agreement otherwise, then the copyright to the recording is owned by the institution. If it was recorded by a student who just happened to be there, or a third-party attendee, the school doesn’t own it (which becomes an issue in the subsequent steps). Awareness of this factor is a good starting point for what lies ahead.

If your institution owns the copyrights to the recording, you can skip points #2, #3 and #4, below.

Assessment Point #2: Is this recording part of the library’s collection?

Just because the educational institution owns the physical copy doesn’t mean it is part of the library’s collection. For purposes of numbers 3 and 4, below, if your institution doesn’t own the recording, in order to convert and/or conserve it under Copyright Act Section 108 (the section giving special rights to certain libraries), the original recording must be formally cataloged and included in the library’s collection.

Assessment Point #3: Is the library in a position to convert the copy to a digital medium?

If the copy is formally a part of the library’s collection, and it is on a format considered “obsolete” under section 108 of the Copyright code (so long as the devices are no longer manufactured, VHS is, for example, is considered “obsolete”), the library may convert it to a digital format, and loan it out as provided by the §108. NOTE: this does NOT mean you can include it in an online digital collection, for anyone to access any time, but it takes you one step closer to it!

Assessment Point #4: Does the library need to conserve the copy?

If the original copy is deteriorating, it may be duplicated as set forth in Section 108. NOTE: this also does NOT mean you can include it in an online digital collection, but it makes sure than once you can, your original copy is safe, and backed up for posterity.

Assessment Point #5: Did the institution have any right to record, and/or to use the image of the person who was recorded?

This requires scouring the contracts of the institution. Most speaker contracts these days include terms controlling the right (or not) to make a recording, but, as reflected in the scenario posed by the member, in the past this was not the case. This assessment is critical, especially since at academic institutions, other departments at the institution may want to use the content to promote and celebrate the institution…but in New York, the commercial use of a person’s image, without their written consent, can carry both civil and criminal penalties.

Assessment Point #6: Are there any concerns with trademark?

The risk posed in #5 is increased if the speakers’s name and image is currently being used for purposes of a trademark (like “Maya Angelou” which is protected under Federal Trademark 86978575), or if a trademark was on display during the presentation. This means any arguably commercial use (like selling copies, putting it on the school’s website or catalog, or selling a t-shirt promoting the collection) should only be done in consultation with an attorney.

Assessment Point #7: Are there other copyright concerns?

This is the meat in the sandwich of the member’s scenario. Going through the above steps, even if an institution:

1) owns the recording;

2) includes the recording in the library’s catalog;

3) meets the 108 criteria to convert it from an obsolete format;

4) meets the 108 criteria to make preservation copies;

5) has permission to use the name and likeness of the speaker in any and all formats, for whatever reason, forever;

6) verifies there are no trademarks involved…

…if the speaker read a copyrighted work during the recording, that “performance” of a copyrighted work MIGHT be subject to its own copyright, and thus, bring with it a host of new restrictions, cramping the bounds of your digital usage.

What a pain, right?

Fortunately, there is solution. For any library at an educational institution contemplating digitizing the institution’s recorded guest speakers, if the written record doesn’t reflect clear permission to record and use the content, writing to the original speaker, or the current copyright owners, to ask for permission, may be the best solution. A sample request, with the variables notes in CAPS, is right here[1]:

Dear NAME:

You may recall speaking at INSTITUTION on DATE. During that performance, you read [INSERT TITLE(S)] (hereinafter, the “Works”).

Our on-campus library seeks to include a copy of that performance, recorded on FORMAT, in an online, digital collection to be called TITLE (the “Collection”). We would like to include the recording in an online Collection, so it may be accessed by the public, for purposes of enjoyment and scholarship.

To that end, we ask the following:

1. Are you the sole copyright owner of the Works? Yes No

2. If you are not the owner, do you retain the right to give permission for their reproduction, distribution, performance, and display? Yes No

If you are not the copyright holder, or do not hold the rights, please let us know who does: _____________________________________________________________

If you are the copyright holder, please consider the below requests:

3. Copyright License

May [INSTITUTION] have a non-transferable, irrevocable license to reproduce, duplicate, display, perform, and, by virtue of the recording being part of the Collection, prepare a derivative work of, the Work(s), solely as performed by you and recorded by INSTITUTION on DATE? Yes No

 

SIGNATURE:_____________________________

 

DATE:_____________________

 

Image Release

We would like to use your name and picture to promote the Collection. May [INSTITUTION] use your name and likeness, including but not limited to photos or images of you, the recorded sound of your voice, for the purpose of promoting the Collection in hard copy, on the institution’s website, and via any other medium existing now, or later developed? Yes No

 

SIGNATURE:_____________________________

 

PRINT NAME:__________________________________

 

DATE:_____________________

 

Thank you for considering this request. I included a self-addressed, stamped envelope, in the hope of a favorable reply.

 

Of course, the risk of asking is that they say “no”…and that they demand you stop using the recording of the derivative work! That is why in all of this, any contracts should be assessed by an attorney, so the rights of your institution are protected, and any requests for permissions should be carefully considered prior to submitting the request.

So, the answer is (and I appreciate it took a long time to get there!): unless the recording were news coverage—which is assessed under a different array of laws—permission (given either at the time of the arrangement, or many years later) for digital duplication and distribution is required, but can be arranged well after the event.

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[1] NOTE: This approach is for educational institutions that were also the original recorders of the work to be digitized, who are seeking a wide degree of latitude on their use. This approach is NOT suggested for digitization efforts involving content generated by third parties at non-educational institutions. It also does not cover recordings of musical works (that would be a whole other answer!).

 

LIBRARIAN:  We have that copy Moulin Rouge you wanted!

PATRON:  Thank you!  I am planning to generate a version of it with my commentary over it. 

LIBRARIAN:  How interesting.  Are you planning to get permission, or claim Fair Use?

PATRON:  Um…?

LIBRARIAN:  Perhaps you would be interested in this book on copyright, too.   

It is professionally appropriate for librarians to promote awareness of copyright, trademark, and the other laws that govern the use of content.  But what can happen next can be risky:

PATRON:  Thank you for the copyright book!  I am pretty sure my use will be considered “Fair.”  What do you think?

LIBRARIAN:  I am so glad you found the book helpful.  As to any use of the DVD we provided…that is a question for your lawyer.

Unfortunately, the most attentive librarians are often the closest to this exposure, since they are the most dogged about providing access—exploring the furthest reaches of Fair Use and Section 108 to do it.  However, it also means that the pressure to go one step beyond, and advise the patron about what they intend to do with the materials, may be frequent.  When it occurs, librarians must emphasize the boundary between good service and legal advice.  Here is a formula for that:

I [the librarian] provide access to library materials based on the law and policy of my profession and institution; you [the user] should consult your own attorney regarding any legal concerns about your use of the materials being provided. 

In the event any of the service happens in writing, it is helpful to confirm this in writing.  This doesn’t have to read like an official “notice,” but can simply be a nice note:

Hi [NAME].  We were glad to help you find [RESOURCE].  As I mentioned, if you have legal concerns about the material you borrowed, you should consult an attorney.

By that way, I am not suggesting that every patron question needs a disclaimer! But for those areas where librarians are actively applying intellectual property law, or providing access to law-related resources, the boundaries of excellent service and legal advice can blur.  Users, who have a high-trust relationship with their librarians, might not appreciate that boundary. Tightening the focus and emphasizing it protects the patron, protects the institution, and protects the librarian.

In addition to being something of a historic preservationist, I am also a design fan, and a booster for my adopted hometown of Buffalo NY.  This means I am on several social media groups that discuss:

• Historic properties,
• Design of both private and public buildings, and
• Issues that impact the built environment (landscaping, planning, urban design).

On these groups, there is regularly a debate about the legalities, ethics, and diplomacy of taking pictures, providing information, and commenting in a public forum about privately owned property.

Issues that are frequently raised include:

• Privacy
• Safety
• Harassment
• Risk of a claim of defamation
• Cultivating ill-will

The issue can also take on tension if a person lives in a home they prefer to not have considered "historic," which can place added pressure and actual legal restrictions on the owner of the home.

On the flip side, many who proudly own "historic" or otherwise noteworthy properties glory in their building's appearance and history.  These are people who not only want their structure listed in print and online resources, but carry a jump drive they can distribute easily to make sure the building is described properly.[1]

When it comes to the risks of listing historic properties in a printed or online resource, there are very few direct legal issues.  With the exception of certain high-security locations, it is not illegal in any way to publish information related to real property, its ownership, and its historic nature (or other significant factors).  In fact, although not everybody realizes it, such information is generally available to the public in the form of tax maps, real property deeds, and other information housed by a county clerk.

That said, and in answer to the member's question, legal concerns can arise if a resident or owner can attribute negative consequences directly to the listing. For instance, if a listing suggests that a property is open to the public, when in fact it is not open, a property owner could have legal recourse. Similarly, if a write-up is directly connected to resulting harassment or vandalism, there could be an allegation of legal responsibility[2]--although such allegations would not lead to liability unless a precise set of factors were present.[3]

The stakes can also be higher when the listing is the result of a formal publication by an actual entity, such as a local library, historical society, religious corporation, or not-for-profit corporation.  This is because such organizations typically have a larger platform to communicate from, and are also perceived as having "deep pockets,"[4] as well as insurance.  They are also more vulnerable to public criticism, since they depend on public good will.

How can an organization mitigate such risk?  Here are three steps:

Step 1. If your organization is going to publish a guide, check with the organization's insurance carrier to see if its insurance includes coverage for "advertising injury" and other claims related to publication. While not every "general liability policy" has this feature, it is a fairly common type of coverage, and any group that is regularly publishing brochures or pamphlets--or even listing information on its website--should consider getting coverage for allegations of defamation and copyright infringement.

2.  Early in the initiative, decide what the precise criteria is for inclusion in your directory[5], and if your directory of local historic properties will have an "opt out" for people who don't wish their property to be listed or depicted.

3.  Once the criteria and any option for "opt out" is determined, consider using a form to notify people of the directory, and to allow people to supply information about their property or to opt out.  For instance:

Dear NAME:

[Info about your organization, upcoming event, pleasantries, etc.]

The NAME is preparing a directory of local historic properties, including your historic property at ADDRESS.

The criteria for the listing in the directory are INSERT.  The listing will include the address, a photo taken from the street, and a brief history of the property.  We will ensure there is no automobile with a legible license plate or people in the image.

To personalize this initiative and add depth to our information, we would like to provide you with an opportunity to send us information about the property, including any work you have done to steward it over the years, and any photos or legacy information you may have.  You can send anything you like to INSERT ADDRESS.  By sending information, you are giving the NAME a license to adapt it for use in the directory (both print and online), only.

In addition, because we appreciate that not everyone will want to supply information or have a picture of their property included in the directory, we are providing an "opt out" of the photo depiction.  If you do not want a photo of your property included in the directory, please check the box below:

 Please do NOT include a photo of my property at ________________ in the directory.  I understand this "opt out" is a courtesy and information regarding my property is part of the public record.

The directory text will be finalized by DATE and we anticipate publication by DATE.  Therefore, to be able to include your materials or remove a photo, we appreciate your reply by DATE.

[nice things, etc.]

[signature]

If at all possible, the organization's attorney should review the final letter before it goes out, which will allow the organization to address any concerns specific to the project or the particular locality.

Thank you for submitting an interesting and sensitive question.  Respect for those who steward historic structures is important...as is celebrating the legacy they preserve.

Happy bicentennial!

 

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[1] Woe betide your guide if a "coppice" is mistakenly called a "cornice."

[2] I have never heard of a directory of historic properties being used to "dox" (harass via release of private information) somebody, but I can imagine it happening.

[3] For example, if the write up said "This is the historic Bailey mansion.  Legend has it if you throw a rock through a window, your wish comes true.  Bring a rock and have at it!"

[4] As in, money to pay for damages.

[5] Is it on the state registry, federal registry, or considered "historic" due to a local designation?  Or are the criteria simply that the structure was built before a certain year, hosted a significant event, or was once owned by a noteworthy person?