Copyright

I am a hands-on kind of lawyer.  When I do a real estate deal, I visit the property.  When I advise a historic preservation group, I drag my kids to see old houses.  When I represent a bakery, I try not to pack on an extra five pounds, but it’s always touch-and-go.

So, when this question came in, I hopped on SpringShare and checked out their product description for LibGuides, and pretended I was going to write one.  I delved into the license terms and the mechanics of the utility.  I observed how their various products work together, or a la carte.

On the SpringShare website, LibGuides is summarized this way:

“LibGuides is an easy-to-use content management system deployed at thousands of libraries worldwide. Librarians use it to curate knowledge and share information, organize class and subject specific resources, and to create and manage websites.”

I checked in with a few librarians I know (one of whom works in my office), and they reported that yes, the product is widely used and popular.  While mine was a very unscientific survey,[1] the  day I hopped on, SpringShare’s web page boasted participation by “6,100 libraries” and “82 countries” and “130,300” librarians.

I noticed a lot of legally interesting things when I was down the SpringShare rabbit hole, but I what I focused on was the member’s question: is there a legal concern related to attributions of LibGuides content?

I started with the LibGuides License,[2] which states:

OWNERSHIP OF DATA: Licensor does not own any data, information or material that you submit to the Software ("Customer Data").

In other words, SpringShare (the licensor) confirms that the subscriber (the licensee) owns the content they put on LibGuides.

The License then goes on:

You, not Licensor [remember, Springshare is the “Licensor”], shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Licensor shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.

This means that while the licensee (the subscribing librarian or library) owns the content, they are also responsible for the consequences created by any content they don’t have the rights to (infringement claim, violation of privacy claim, etc.).

This is a very typical approach for content-sharing platforms.

The License then states:

In the event this Agreement is terminated, Licensor will make available to you a file of the Customer Data in XML format within 30 days of termination if you so request at the time of termination.

Isn’t that generous?  If you remember to ask nicely at the time you terminate the contract, you (the Licensee) have thirty whole days retrieve your property.[3]

This property arrangement is at the heart of the member’s question.  SpringShare claims no ownership of the content placed on LibGuides.  That content, unless licensed from another, is supposed to be owned by the licensee (the person or entity contracting with SpringShare for the service).

But is the “licensed LibGuides user” the content owner?

That depends.

In the member’s question, the “licensed LibGuides user” was probably the library (it would be very unusual, and not business-appropriate, for an account for an institution to be in an individual person’s name).  So, the library is the one getting assured they own the content put up through the account, and the library is the entity responsible in the event the content causes a problem (infringes copyright, invades someone’s privacy, etc.).

Now this is where the issue gets sensitive.  Under copyright law, content generated by employees, AS PART OF THEIR REGULAR DUTIES, is owned by their employer—unless a contract, policy, or hire letter says otherwise.  This “default rule” is spelled out in section 201(b) of the Copyright Act.[4]

How does this play out in the work environment? It varies.  Many librarians are part of a union, which means the written work they generate as part of their job might not be subject to the above-described “default rule” (a collective bargaining agreement can change the terms of employment related to copyright).  Still others work in environments where this “default rule” has been changed through a policy, or a hire letter.

This lack of uniformity means that any librarian composing LibGuides, who wants to use their compositions after they move to another job, should make sure they know where they stand when it comes to “employee-generated intellectual property.”  Does their workplace follow the “default rule?”  Does a union contract, policy, or hire letter change the “default rule?”  And is writing a LibGuide even part of their duties?

This is critical, because depending on who owns the content, they are free to do as they like with it: keep it up, remove it, change it, update it, etc. (of course, what they do on LibGuides is limited by the License and the technology).  And it is also critical because the current configuration[5] of LibGuides seems, to me, to create a potential problem.

Now, that addressed the legal part of the question; the answer is: yes, there are some legal concerns.  But the “legal” concerns might not be the full scope of the concerns presented by the question’s scenario.  Attribution of authorship is different from ownership, but it can be a critical issue of integrity.

My understanding of how LibGuides functions is that the account holder can change the roles, authority, and people admitted to create, modify, or access the content.  Within LibGuides, subscribers have the ability to assign users (Admin users, Regular users, Editor users, Contributor users, and Patron users) with different levels of access and authority.[6]

Within this structure, “Admin users” (who have the highest level of authority over an account), manage the Licensee’s use of the service.  The settings are changeable, and different LibGuides can be assigned to different users.

But what was WILD to me is that when a librarian leaves a library, to maintain the LibGuide, the library has to assign another staffer to the Guide.  That’s fine and makes sense, but because of LibGuide’s interface, that new person is then listed as the librarian in charge of the guide, and the way the screen looks (to me) the implication is that they are the author.

I believe that is the genesis of this question; people who took pride in their creation of a LibGuide first attributed to them are now seeing (implied) authorship (seemingly) attributed to another.  I have to admit, whether I owned it or not, that would sting a little.  Writing, even if it’s for your job, can be a very personal endeavor.

This seems entirely due to the design of the interface.  Between you, me, and the Internet,[7] it seems like a needless and utterly solvable problem.  And while not necessarily a legal issue (although if the former employee owns their work, it could be) it strikes me as a serious ethics/integrity/relationships issue.

Authorship is something people take seriously, especially in the arenas of academia and publishing—worlds in which librarians play an essential role.

How can this be solved?

First, LibGuides might want to think this through and develop a solution.[8]  But until then, libraries using LibGuides should assess their legal position (do they own their employees’ work under the “default rule”?  Or does a contract or policy say otherwise?) and, think how this phenomenon rests with their values.  On the flip side, librarians who create a great LibGuide and then want to move on in their professional careers should pay attention to who is the LibGuide’s “owner” and be mindful that a LibGuide owned by their employer will not always be in their name.  Further, the mutable nature of LibGuides (they are designed to be updated, altered and changed) means you might not always want to be associated with what the Guide turns into!

Thanks for a great question.

[1] “Unalytics.”

[2] “Terms of Use” and licensing agreements can be treacherous!  Services change them from time to time.  This was posted as of 3/6/2020, but always get your contract answers straight from the source.

[3] As a rule, I try to avoid snark and sarcasm in the “Ask the Lawyer” service.  Such rhetoric doesn’t age well, and there are defter ways to be funny.  That said, this one deserves some snark.  Thirty days, and then potentially thousands of dollars of your assets are lost?  Not so great.

[4] The law reads: “In the case of a work made for hire [which includes “a work prepared by an employee within the scope [their] employment”] the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.”

[5] As of March 6, 2020.

[6] On March 6, 2020, I found these categories on the LibGuides FAQ at ask.springshare.com/libguides/faq/1119#general.

[7] Hi, SpringShare!  I am confident you can fix this!

[8] For instance, I would create a “Legacy Content and History” option for customers, where the evolving work and chain of authors could be tracked.  Of course, that would still put the ultimate fate of the content in the hands of the employer, but it would empower them to maintain good feelings between librarians.

Some of the trickiest copyright questions I get relate to student work.

Why are they tricky?  Because of a self-imposed rule I have: find a way for the work to be done;  don’t let copyright interfere with art and science.[1]  In other words, our copyright glass of scholarship should be half full…of scholarship, not fear of lawsuits.

That said, most readers of this column will know that “educational use” does not justify the wholesale infringement of works, even if the purpose is scholarship.  To use a work without permission, the use must meet the criteria of “fair use.”[2]

But I’m getting ahead of the question.  Let’s bring it back to the beginning.

What’s the tricky issue here?  In this scenario, the band “released various music videos,” and asked the public to create new works based on the old, for entry into a contest.[3]

The band was essentially asking the public to create “derivative works,” which are new works based around a copyright-protected original (think movie sequels, musicals based on books, and paintings of paintings).

The faculty member plans to retain copies and direct students to use them after the completion of the contest, both for assignment and portfolio purposes.  Is that cool?

Now, if the band’s videos were expressly put into the “public domain” for the contest (meaning: no copyright protection) the question ends here. If the clips aren’t protected by copyright, the faculty member’s plans are just fine (it’s cool).[4]

Further, if the band gave a perpetual, irrevocable permission to any person who generates a new video using the clip, to use the clip for whatever reason they want, the question also ends here (again, retain the copy and using it as planned is cool).

But if instead, the band kept the videos protected by copyright,[5] and gave the public permission for only a limited amount of time (say, the duration of the contest), for a limited amount of purposes (say, for entering the contest), then yes, we are in a “danger zone” (not cool).[6]

However, before I agree that the ideal solution is to get the copyright owner’s position, I do want to make a case for fair use, which allows people to use copyrighted works in way that would otherwise be infringing (make copies, make derivative works, and even at times to sell them).

Based on the scenario described, it is not clear if the retention of copies as described in the scenario would be a fair use.  It would have to be justified under the four fair use factors, with the school and student being able to show that the retention of a complete copy and use of the clip for assignment and student portfolio purposes was justified.

The way for a school to do this is to use their fair use assessment form[7] and retain a copy.

To me, aside from the legal concerns, this is also an ethical issue.  A faculty member should not encourage a student to unknowingly infringe another’s copyright, especially if they know that student might include that work in an online portfolio of work.  This could put the student in legal trouble that is independent from the liability of the school.

Students, as individuals, do not have the same protections that higher education professionals have.  Schools, if they conduct a bona-fide fair use analysis, can limit the damages from alleged infringement.  Schools also usually have insurance for this stuff.  Newly-minted B.A.’s and M.F.A’s typically do not have the same resources.  This means, when the student gets sued, they are in a much riskier place than the school or the faculty member.

All that said, remember the mantra: find a way for the work to be done;  don’t let copyright interfere with art and science.  What does this mean?  While being cautious to not promote infringement, a faculty member in a medium such as film, or music, should not let students operate in ignorance of fair use, which is so important to both mediums.  Without sampling, without artistic call-and-response, we suffocate creative innovation.

If that sounds complicated, it is!  I will be reaching out to this member to talk the specifics through (that part is confidential).

[1] Promotion of “science and the useful arts” is the reason we have IP law in the first place (see U.S. Constitution, Article I, Section I, Clause 8).

[2] Or Section 110(a) or (b) of the Copyright Act. But you can read out that here https://www.law.cornell.edu/uscode/text/17/110.

[3] As gimmicks go, I like this one.  I wish my favorite author, Umberto Eco, had invited me to write a chapter of “The Name of the Rose.”  I would have had Adso and William fire-proof…uh, sorry, spoiler.

[4] I speak legally, not pedagogically.  I have no idea if this would be a good film class assignment; I was a Russian History/U.S. Constitutional law major at an experimental school with no grades or tests (Hampshire College).  Other than once attending a class on the classic film “Battleship Potemkin” and whatever skills can be gleaned from serially watching the musical “1776,” I have zero credentials to evaluate the curriculum of a film course.

[5] Which, by the way, the band might not even own.

[6] For the record, if I were the lawyer advising this band, the contest terms would have contained a clause allowing my client to revoke permission to use the clip and participate in the contest in the event an entry was contrary to their values (racist, sexist, transphobic, etc.). 

[7] More information using a Fair Use Assessment form can be found here: https://copyright.cornell.edu/fairuse

One of my all-time favorite TV shows is Gilmore Girls.

Aside from being the origin of many expressive phrases ("Oi with the poodles already!"), as a parent, Gilmore Girls gave me a concept I used almost daily: "jam hands."

What is the origin of "jam hands"?  In Season 2, Episode 5, “Nick & Nora/Sid & Nancy”, the perpetually grumpy "Luke" character, upon being confronted with the prospect of childcare, confesses to a distaste for children: because they are loud, because they are messy, and because their hands always seem to be coated in jam.[1]

I have two kids.  "Jam hands" are very real.

My oldest kid (15, as of this writing) has paid his dues playing violin and piano, so I have personally witnessed the damage "jam hands" can do to instruments and music.  It must be jam warfare out there.

And of course, a kid can lose sheet music simply by putting it in their backpack.[2]

I don't know if “jam hands” and possible “backpack black hole” are the big reasons for this member wanting to give students back-up copies while retaining the "real" ones in a file, but I suspect that is at least part of the rationale.  Why wait until the good copies get destroyed or go missing?  Why not make back-up copies in advance?  If "fair use" creates educational exemptions to infringement, isn't this a use that qualifies?

Sadly, when Congress developed the "fair use guidelines" for educators,[3] they did not invite any parents to the advisory committee, and so the "jam hands" and "backpack black hole" clauses did not make it into the final guidelines.  Instead, those guidelines specifically prohibit copying for performance, except for:

Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.

So: no copying in advance…but, in the face of an "imminent performance," copying to replace "unavailable" purchased copies is okay (provided the replacement copies are "substituted in due course").

What does this tell us?  In this case, it's better to be re-active, than pro-active.  When a student jams up or black holes a copy, an educator can make replacement for a performance.  Just make sure you get around to purchasing and substituting (instead of destroying) those "replacement copies," in "due course."

I would of course love to leave this answer right there, having dispatched sage wisdom and quoted from decades-old guidance from Congress.  But I have no doubt that by now, at least one reader has said "Well, what's 'due course'?" And I don't want to be accused of fraternizing with the tomato.[4]

A lot has changed since the guidelines I quote above were drafted.[5]  Inspired by this question, I took a look at the sheet music market, to see if the landscape for fair use had shifted.[6]

As I am sure any music teacher reading this knows (but what was news to me), these days teachers can often print sheet music on demand (for a price).  And while of course not every copy a school has in print is available for download, the "emergency" aspect of the clause quoted above loses some heft when a copy can be obtained for $2.25 online.

THAT SAID, I know music program budgets rise and fall on nickels and dimes. I am not suggesting that a teacher or librarian solve this problem by simply immediately buying new copies; rather that when it comes to deciding what amount of time is "due course," the answer is: no later than when you can make the replacement purchase as part of your next budget cycle.

That said, before stressing about fair use and "replacement copies" and "due course," always check the fine print on the music (and on copies available from other sources).  While on my sheet music web site tour, I noted that some (but not all) of the sheet music I saw for sale had the phrase "this copy may be reproduced by the purchaser," and other flexible licenses.  So, for each piece of music you want to copy, before you worry, check the fine print.  You might have more permission than you think.

I wish I could give a better answer in the fight against “jam hands.”  But at least your answer didn’t fall into a “backpack black hole!”

[1] The full quote is here: https://www.tvfanatic.com/quotes/me-raising-a-kid-i-dont-even-like-kids-theyre-always-sticky/

[2] Don't watch your kid do this.  It's addictive.

[3] Set forth in the Copyright Office's "Circular 21," which is found here: https://www.copyright.gov/circs/circ21.pdf

[4] Another beloved Gilmore Girls reference

[5] For instance, Gerald Ford is no longer President.

[6] I particularly appreciated the functionality of https://www.jwpepper.com/sheet-music/welcome.jsp.  As a non-musician, I am not qualified to comment on their selection or quality.

This question came in from a school system, and it triggered a lot of memories for me.

My junior high school music teacher was a very nice man.  From deep within mid-1980's Central New York, he tried to cobble together an orchestra from an array of students whose skills and practice habits ranged from "Julliard-bound," to "who is torturing that cat in the third violin chair?"

Back in 1986 (when I was 13), I saw this guy as "old."  Because of the way he tirelessly started the music over (and over) until the brass section[1] entered at the right bar of "Star Wars", I also saw him as a font of endless tolerance.

Now that I am older, my memory portrays my former teacher as a pretty young guy (I think he was in his early 30's).  And by now I have worked with enough educators to know that his tireless tolerance of our incompetence was passion.

So, this question has stirred a feeling of nostalgic gratitude.  Because of that,[2] I want to give this member an answer that is really solid, helpful, and clear.  But as they say in the construction biz when people ask for a job that is quick, quality, and cheap: I can give you a combination of any two, but not all three.

Here is the part of the answer that is solid and clear: Making a recording of a copyright-protected composition, unless the recorder has the permission of the copyright owner, or the recording falls under an exception, is copyright infringement…even for educational purposes.

Is there helpful and solid authority on that?  Yes. Circular 21, the long-standing guidance on the relevant copyright laws,[3] makes it clear that for educators, only the following recording of musical compositions is allowed under "fair use":

A single copy of recordings of performances by students may be made for valuation or rehearsal purposes and may be retained by the educational institution or individual teacher.

[AND]

A single copy of a sound recording (such as a tape, disc, or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)

So, at first blush, the answer to the member's first question (and thus, all the following questions) is: NO.

Now, the core guidance in Circular 21 is OLD.[4]  It pre-dates streaming, it pre-dates file-sharing, and depending on what start date you give the web, it pre-dates the Internet.  But insofar as case law and legal commentary is concerned, it abides.[5]

So, while I have to answer a resounding NO to the question just as it is asked, I can offer a few helpful and clear solutions.

First, it never hurts to ask.  Depending on the copyright holder, you may be able to get a "limited license" for the very thing you want to do.  Some owners might even be charmed.  Others, of course, will just refer you to their manager.  You never know until you try.  Just make sure you get it in writing.

Second, while the Circular 21 guidance quoted above gives clear examples of what fair use permits, on page 7 of Circular 21, just before listing those guidelines, it states "There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use."

So, if a version has been recorded for performance as part of a clever mash-up, for purposes of commentary and criticism, or another use that might meet fair uses' four factors, this approach is worth considering.  Sadly, since that is a case-by-case analysis, I can't say what precisely when that is allowed!  An education institution should perform such an analysis using its fair use form.[6]

Third--and I can't believe I am suggesting this--it may be that a combination of different licensing can arrange this precise permission for you.

We'll call this the "Two-Step Shuffle" solution.  It is meant to be helpful, and it is solid, but I am concerned it might not be too clear.  But let's give it a go.

NOTE: to use the "Two-Step Shuffle" solution, your institution MUST have a public performance license from a licensor like ASCAP or BMI.  So, if your school doesn't have one, just stop reading, right now.  But if you do…

Step one: see if the song you want to record is licensed for "covers" on a publicly accessible "host site" like YouTube.[7]  If the host site[8] has the license, you can record the accompaniment as a "cover," and put it on the host site.

Step two:  With your "cover" recorded, you can then play it from YouTube at any premises that has a license for public performance (this is why you need that license from ASACP or BMI…which is also what covers playing music at a high school dance, music over the loudspeaker during halftime, etc.).

Of course, this being an Internet solution, the "Two-Step Shuffle" solution could disappear at any moment!  But this being the Internet, something else will take its place.

Now, in suggesting a school to make use of a commercial video hosting service (like YouTube), I would like to take a moment to discuss those two important legal concepts: "Coulda," and "Shoulda."

Just because a school can upload content to a site like YouTube, and get a license for a cover, doesn't mean it should.  After all, when using a service like YouTube, an institution agrees with these terms:

By providing Content to the Service, you grant to YouTube a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use that Content (including to reproduce, distribute, prepare derivative works, display and perform it) in connection with the Service and YouTube’s (and its successors' and Affiliates') business, including for the purpose of promoting and redistributing part or all of the Service.

In other words, you're feeding the beast; you're commodifying the content you've chosen to share.  If it's student work, there are privacy and further intellectual property concerns (students own their copyrights, after all).  None of these are things an educator should take lightly.

That said, if approached with the right balance of attention to legal details and commitment to artistic excellence, the "Two-Step Shuffle" can also show future artists and performers how to respect copyright law and engage in self-promotion (which seems to be a critical skill  nowadays).  So "woulda, coulda, shoulda?"  If you undertake the "Two-Step Shuffle" solution, do it with an "ethics buddy" (preferably an administrator who has your back).

And of course, a "Two-Step Shuffle" solution can only be used if you can answer these questions in the affirmative, and you preserve the documents from which you derive your answers:

1. Do you have express permission from the host site to make and post the recording on the host site?
   1. If "yes," keep a copy of that permission.
2. Do you have express permission to perform the recording at the premises?[9]
   1. If "yes", keep a copy of that permission, too.

That second part pertains to any other school or place that wants to publicly use your recording, as well.

So, there you have it.  Was this solid and/or helpful and/or clear?  In keeping with my Junior High memories, I give myself a "B."

I do wish this answer was a little less like trying to get the brass to come in at the right bar of "Star Wars," but copyright, fair use, and licensing take time and attention to detail to get right.

That said, with enough passion to fuel the effort, I am confident you'll hit the right note.

[1] That was me.  I played trumpet.  And had braces. NOT a good combo.

[2] And because I have high standards.

[3] Circular 21, "Reproduction of Copyrighted Works by Educators and Librarians," which has been in use since my days playing trumpet, and arguably, could use some updating.  You can find it here: https://www.copyright.gov/circs/circ21.pdf

[4] How old? It was first contained in a joint letter written by representatives of the Music Publishers’ Association of the United States, Inc., the National Music Publishers’ Association, Inc., the Music Teachers National Association, the Music Educators National Conference, the National Association of Schools of Music, and the "Ad Hoc Committee on Copyright Law Revision" on April 30, 1976.  Of course, if I tell my younger sister that something from 1976 is "old," I'll catch hell, but fortunately, she teaches religious education, not music.

[5] A scenario such as the one depicted by the member doesn't even get any slack from educators' other great copyright reprieve: section 110.  While 110 does allow a variety of exceptions for musical performances, it doesn't extend its tolerance to recording.

[6] Something no not-for-profit educational institution should be without, since it can help your institution limit damages under Section 504 of the Copyright Act.

[7] As of January 13, 2020, YouTube maintains a list of licensed songs you can record and upload at https://www.youtube.com/music_policies?ar=1578920053089&nv=1.  And, also as of this January 13, 2020, YouTube (unlike Netflix or HULU) enables businesses to use their services (rather than restricting them for "personal" and "home" use).

[8] Insofar as I know, only YouTube does this.  But I need to get out more, and of course, this type of thing evolves quickly in cyberspace.

[9] This is different than permission to perform the musical composition!

Libraryworld: a place where people gather to discuss information, and the best ways to share it with their community.  A place where people are just as likely to discuss the "Rule of Five" as the "Rule of Three."[1]  A place where routine conversation tackles everything from new database technology, to guidelines from the now-obscure "National Commission on New Technological Uses of Copyrighted Works" (CONTU).

But since not everyone in Libraryworld knows about "The Rule of Five," let's give some background.

The "Rule of Five" pertains to guidelines for applying a very small section of 17. U.S.C 108, the law giving libraries and archives special exemptions from copyright infringement.

That's right, Section 108 of the Copyright Act sets out important exemptions from infringement for libraries and archives who are open to the public.  But since the copyright law giveth and the copyright law taketh away, this "very small section" of the law, sub-section (g)(2), cancels those exemptions if a library or archives using them:

… engages in the systematic reproduction or distribution of single or multiple copies…of material described in subsection (d)…. [emphasis added]

"Sub-section (d)" creates:

[The right to make and distribute] a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue…[emphasis added][2]

Aha, the right to make copies of "articles" and "contributions to collections!”  Yes, 108 sub-section (d) lets you make those…either for patrons at your own library, patrons at another library, or a requesting institution.  That's a very big, and very important exception to infringement.  It is one of the cornerstones of inter-library loan collaboration. 

But how does (g)(2) limit this important right?  By prohibiting "systematic reproduction or distribution" of the content.  And what does "systematic reproduction or distribution" mean?

The law doesn't say.  And since Section 108 was adopted in 1976,[3] it still hasn't said.

That's where "CONTU" stepped in.[4]

Convened in 1977, CONTU was the "National Commission on New Technological Uses of Copyrighted Works."  In 1978, it issued "Guidelines" that attempted to provide clarity about the meaning of "systematic reproduction or distribution."

This is what they came up with:

[F]illed requests of a library or archives (a “requesting entity”) within any calendar year for a total of six or more copies of an article or articles published in such periodical within five years prior to the date of the request.

This limitation is called the "Rule of Five," since the requesting entity is limited to five copies of content less than five years old, from the same source. [5]

CONTU tried to give libraries a precise mathematical formula and documentation system for abiding within the protections of 108.  While such a precise formula can be useful, I find it more helpful to think of the "Rule of Five" in the context of another part of Section 108 (g)(2):

That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.

In other words: libraries shouldn't use 108 as a replacement for budgeting to purchase a critical magazine or journal needed at a specific location.  They shouldn't collude between institutions to strategically subscribe and then share journals to the detriment of the publisher.  BUT at the same time, when a spontaneous need arises within your area of service, and you have that magazine or journal, don't hesitate to use your network to provide a 108-sanctioned copy.   But once the same place calls you five times in a year about the same source, say "Okay…time for you to get your own subscription."

Although I did not find it in the CONTU/108 commentary, I believe this approach reveals why CONTU's limit on copies is calculated based on the requests of the "requesting entity," and not fulfillments by the lending source.  Just think of it this way: a library or archives should not hesitate to use 108 to fulfill its mission information access.  However, it should take equally great care to show it isn't using 108 to help another library, or a patron, avoid a subscription fee.  By limiting copies from a single source given to another entity to five, CONTU tried to do just that.

Okay, there's some 10,000-foot background on the "Rule of Five."  Now let's focus on the member's two questions:

1. [I]f a public library has multiple branches; can one branch request 5 articles from a single year from a journal and then another branch also requests articles from that same journal and year? Or did the first branch already use the maximum number of copies?

2. What about universities or hospital systems with multiple campuses and libraries?

Let's take a close look at these questions.  In both scenarios, the requested articles are not going to a separate entity (or as 108 and the CONTU guidelines call it, a "requesting entity); rather, the copies are going to branches of the same entity: a branch of a library, a part of a university campus, or a part of a hospital entity.

Because the copies are going to the same entity, as I see it--and insofar as actual authorities like congressional commentary, the Copyright Office, and the courts can guide me--the CONTU Guidelines do not apply to the member's scenarios.[6]  Rather, the limit of a single institution's ability to make copies for itself is defined by the (g)(2)'s more thematic bar on activities that "substitute for a subscription to or purchase of such a work," and of course, the rules of fair use.

How does this play out?  Applying our 108/CONTU background: if a hospital whose library is open to other hospitals[7] has five library suites in different buildings, and wants to put a copy in each suite, it should not apply the "Rule of Five." In fact, this type of example (except they used branch libraries) is cited by the Copyright Office's guidance as exactly not the type of activity 108 was intended to protect![8]  Rather, the hospital would do a "fair use" analysis, or use another part of 108, to make the copies it needs.[9]  Or, if there is no other way, would not make them at all.

Now, with all that said, it is important to note that the entity can make 108/CONTU copies for other "requesting entities" (users, other libraries)…so long as the other 108 criteria applies.  For instance, 108 allows me, and even up to 10 other people (or 20, or 30) to visit your library and make a copy of an article, so long as we are not part of a discernable, coordinated "scheme" like a faculty member sending all their students in to copy the same content.  Because of this, 108 is a powerful tool for information access.  And it's been that way since 1976.

Now, let's stop playing around in the 1970's, and discuss some modern features of this type of "multi-branch" dilemma.

The fact of the matter is, unless the library/university/hospital is purchasing physical copies, at this point in 2020, what might be more relevant than CONTU's "Rule of Five" is the terms of the license from the subscription service the library gains access to the copies through.  Remember, as a general rule, exemptions to copyright infringement do not trump violations of valid negotiated contract terms.  So, if a library gains access to the content through a license that limits the number of copies, it might be that the specific "Terms and Conditions"--not the CONTU Guidelines or basic copyright law--that apply.

This is why careful review of all licenses held by libraries grows more critical, year after year.  It is also why whenever possible, I advise that every license for content should have a clause expressly stating that the terms of the license do not limit the library's rights under Copyright Law Section 107, 108, and 110, and the ADA.

So, where does that leave us on the "Rule of Five?"

There's a brassy phrase people can use to reply when asked "How are you?"

"Five by five," they might say, taking a verbal saunter through (depending on which slang dictionary you use) radio talk, surfer talk, trucker talk, or the characters in a sci-fi/pop culture adventure.

What's "five by five" mean? No one really seems to know.[10]

"Five by five," and "the Rule of Five," have that in common.  Times have changed; has their meaning?

The National Commission on New Technological Uses of Copyrighted Works ("CONTU") issued its guidelines in 1978.  The Commission has not re-convened since then; in fact, in 1992, the section of the law that required periodic assessment of 108's impact on libraries, publishers, and content users was written out of the law.[11]

So here we are, drifting along, applying guidelines from 1978.  Is that "five by five?"  I don't think so.

But I'm glad Libraryworld is keeping the discussion going.

[1] The rule that celebrities die in threes, which when you think about it, is how we all die (if count long enough, and stop counting soon enough).

[2] There are of course some other criteria: there must be no knowledge of a commercial use, and the copy must become the property of the requester.

[3] Act Oct. 19, 1976, P. L. 94-553, Title I, § 101, 90 Stat 2546.

[4] Or, as some have said, stepped in it.

[5] NOTE: this guideline only applies to content within its first five years after publication.

[6] While there is some commentary about CONTU in copyright jurisprudence, there is no case law on applying these guidelines, and in any event, they do not have the force of law.

[7] NOTE: being open to outside researchers or patrons is required to even qualify for an exemption under 108.

[8] See Circular 21, page 14, paragraph 3.  When you're done wading this answer, "Circular 21," is that place to further explore the nooks and crannies of this issue.

[9] The very clear case of hospitals using fair use to routinely copy medical journals, Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74, 487 F.2d 1345, 1973 U.S. Ct. Cl, was determined before 108 was adopted.  Although the medical facilities won that one, I would not advise that be done in this day and age.

[10] My money is on that it mutated from telecommunications.

[11] A Congressional Act of June 26, 1992, deleted former subsection (i) of 17 U.S.C. 108, which read: “Five years from the effective date of this Act, and at five-year intervals thereafter, the Register of Copyrights, after consulting with representatives of authors, book and periodical publishers, and other owners of copyrighted materials, and with representatives of library users and librarians, shall submit to the Congress a report setting forth the extent to which this section has achieved the intended statutory balancing of the rights of creators, and the needs of users. The report should also describe any problems that may have arisen, and present legislative or other recommendations, if warranted.”

Before sitting down to write a "one size fits all" answer, I gave the member a call to discuss this project.

What happened on the call? I can't tell you; it's confidential.  BUT, I can say that to give any advice, I had to ask the following questions:

• What years are the yearbooks from?
• Are you using portrait shots, or candid shots that might have been taken by teachers and/or students at the school?
• Are you selling the commemorative calendar?  How do people obtain a copy?
• Are you including additional information, commentary, and analysis of the photos in the calendar?
• Is there any sensitive content?

These questions were asked in order to 1) assess the if the photographs were protected by copyright; 2) assess the ability of the library to make a "fair use" defense for using them; and 3) probe for any legal sensitivities possibly related to the content.[1]

This analysis was done because yearbook projects bring up issues of not only copyright risk, but privacy and social issues.  For this reason (and because old hairstyles are eternally amusing) yearbook projects are hot right now: the focus of many digitization initiatives, and the cause of many numerous scandals-in-retrospect.

Yearbooks are also getting a good showing in copyright case law these days.  The most recent[2] is Dlugolecki v. Poppel,[3] a lawsuit over two yearbook photos of actress-turned-duchess Meghan Markle (a headshot and a group photo), taken when the future royal was in high school. 

Dlugolecki shows the "worst-case scenario" answer to the member's question.  In this case, when "Good Morning America" and other ABC shows used his photos in their coverage of Ms. Markle's rise to royalty, professional photographer John Dlugolecki sued ABC (and others). 

His claim?  That by re-using the printed yearbook photos he shot in the '90's, ABC (and others) infringed his copyright via broadcast in 2017. 

The case was brought in California and heard before the Honorable George H. Wu.  It settled[4] on December 11, 2019, but not before ABC made--and lost--a preliminary "fair use" defense.  Judge Wu, applying the fair use "four factor" analysis set by Section 107 of the Copyright Act,[5] found that even though the photos hadn't been registered by photographer Dlugolecki prior to their use by ABC, the undisputed facts of the case (his photos were clearly used in the broadcasts) could warrant a finding of infringement.

Now, a commemorative calendar by a not-for-profit library is not the "Good Morning America" show.  But as we can see in Dlugolecki, yearbook photos can get protection just like any other copyrighted medium, and re-use might not be considered fair use.   Which means that under the right circumstances (including if the copyright holder is motivated enough), a problem could arise for unauthorized use of yearbook content.

So, the answer to the member's question is: yes, there can be an issue.  Because of that, careful planning, and if possible, working with a copyright attorney, is the way to approach use and re-publication of photographs from a yearbook.

[1] I asked about “sensitive content” not to suggest it be expurgated, but to offer legal guidance on presenting it properly (although I doubt “sensitive content” would be selected for a commemorative calendar).

[2] I am writing this in January 2, 2020; my first work of the New Year!

[3] Decided in United States District Court for the Central District of California on August 22, 2019 (CV 18-3905-GW)(GJSx).

[4] Cases like this often settle.  While this is very frustrating for attorneys conducting research (who like to read findings and judicial opinions), it is no doubt lucrative for the plaintiffs, and an act of risk management for the defendants.

[5] https://www.copyright.gov/fair-use/more-info.html

Yes, I can point you in the right direction…but I can’t take credit for drawing the map!

Since it pertains to a local “Music Educators Association,” this question brought me on a pleasant journey into the chartered territory of the “New York State School Music Association,” a/k/a “NYSSMA.”

NYSSMA is the organization for school music educators in New York.  Its mission is to “advance music education across New York State for its membership and students in member school programs.” 

Like libraries, schools, and BOCES, NYSSMA is chartered by the Regents of the State of New York.  To enable meaningful participation on a local level, NYSSMA is broken into 15 zones. 

In the member’s question, it sounds like a local zone of NYSSMA is asking a local BOCES for assistance.

Since both entities are chartered by the Regents, this makes sense; it’s like your cousin asking if she can store tools in your garage.  Except in this case…you aren’t sure where your cousin got the tools.  Or who might ask to borrow them.

As the member points out, this uncertainly could be cause for concern.  This is particularly true because under copyright law, a license is required to not only duplicate music, but to perform it, so an entity providing unauthorized copies could experience more than one type of liability.

Fortunately, there are many helpful resources to address this, and the basics are set out in plain language on the page of NYSMMA’s national affiliate, the “National Association for Music Educators (“NAfME”).

On their helpful page, found at https://nafme.org/my-classroom/copyright/, NAfME outlines the basics of managing a music library for NYSSMA members. 

As stated by NAfME:

“Unlike most educators, music educators must face copyright compliance frequently throughout their career. Although the thought of copyright can be intimidating and a complex subject, NAfME has a multitude of resources that can help you better understand U.S. copyright law.”

How does an institution considering providing this service get started? Any institution considering housing a music library (or script library, or an architectural plans library, or anything that will be licensed and/or loaned under particular conditions) for another entity needs to do these three things:

            1.  Research and assess the full scope of what will be required;

            2.  When the full scope is known, develop a budget, policies, job descriptions and a contract (or term sheet) to support what is needed; and

            3.  Finalize the arrangements in a way that mitigates risk,[1] and makes the service effective and sustainable.

Since this type of analysis can reveal the complexities of what may seem like a simple service, it is not surprising to hear that at one point a fee was required for it!

As the resources on the NAfME site show, housing and managing a music library is potentially a very detailed endeavor.  And while technology has made some aspects of the tasks involved easier, any institution providing such a service will need to make it a part of someone’s job.

So, after reviewing the basics on the NAfME site, it would be good to have a forward-thinking and specific discussion that addresses the following:

• Whose property are the copies to be housed and managed?
• Are there copies of the original purchase agreements and licenses?
• How is the collection to be searched?
• How is the music loaned out?
• Who tracks copies on loan?
• What is the approach for unreturned copies?
• Who arranges for performance licenses, and who keeps copies of permission granted?
• How are new works accessioned?
• How are copies de-accessioned?
• How are damaged copies replaced?
• What is the value of the collection?
• What is the cost of the service?

In addressing these questions, it is important to note that NYSSMA has access to numerous copyright-related resources as a member of NAfME.  For instance, as noted on the NAfME “copyright” page: “Through an agreement with ASCAP and BMI, NAfME (or MEA) sponsored groups are granted performance rights of music managed by these organizations. (This covers only performances sponsored by NAfME or federated state associations of NAfME.) However, if members wish to record their students’ performance of any work, permission must be obtained through Harry Fox Agency.” 

So awareness of NYSSMA’s rights, as parties explore how they could assist with housing and managing a NYSSMA-owned collection, would be critical.  Solid and well-coordinated compliance with license terms would also be important.

I know this is just the overture to a full answer, but thank you for a well-composed question.[2]

Yes, syllabi and assignments can be protected by copyright, so long as they are of sufficient substance and originality.  

Of course, there is no precise formula for what constitutes “sufficient substance and originality.” However, a freshly-composed assignment of more than a paragraph or two should be enough to qualify for protection, and a typical syllabus—setting forth the course purpose, assignments, means of grading, and class-specific policies—should almost always qualify (even if wrapped up inside a larger institution-wide template to cover academic integrity, ADA accommodations, and grade appeal).

The trick, however, is know who—or what—owns that copyright.  Some institutions will claim ownership, since the content was generated by their faculty (a concept called “work for hire”).  But other institutions will expressly let their faculty own their work-product.  So, there is no one rule for determining ownership, and that means there is not one method for obtaining permission.

But do you need permission?  While that is always nice, in academia (just like anywhere else), not everyone is eager to have their own work assessed, and yet, there must be some way for analysis, commentary, and criticism of that work to be conducted.  Which bring us to every information professional’s favorite copyright concept: fair use.

Fair use is the ability to use copyright-protected materials for purposes of education, commentary, and criticism.  It was designed for projects like the one in this question.  But just like with determining ownership, there can be no cookie-cutter answer, for as one court put it: “Determining fair use is a mixed question of fact and law.”[1]

How can a project like the member’s address this “mixed question?” In a situation like the one presented by the member, here is a good approach:

Step 1:

Generate a careful summary or abstract of the project (which the member has done here), and the data collection methods. 

Step 2:

Consider how many copies of assignments/syllabi the project will need to make, how they will be stored, and the use your project will make of them.  If stored in hard copy, where will the copies be, how many must you create, and how will you restrict further duplication?  If digital, consider how the electronic copies will be accessed and secured, perhaps warning users on a user-limited shared drive to only use the copies for the purposes of the project, and to not disseminate them further. 

Step 3:

With all that assessed (but no copies yet made!), conduct and document a “fair use assessment,” using your institution’s policy and form for fair use (any research institution, or educational institution, should have these; for example, the great library team at Cornell has a well-developed checklist[2] for their faculty and staff to use when contemplating the use or partial use of copyright-protected materials).

Step 4:

If you determine the use will be “fair,” and decide to proceed with making only those copies you need for your project (and include only the content needed to prove your point in any final product) save the fair use assessment documentation, because under Copyright §504, a good-faith belief by a library, archives, or higher ed institution that it is making a fair use of protected materials can limit the damages in the event it is accused of infringement.[3]

So, to reiterate the answer to the core question: yes, assignments and syllabi can be protected.  But to expand from there: that protection should not be a roadblock to an academic work assessing them. While it might present a small “speed bump,” the law of fair use provides options that are consistent with good scholarship practices and rigorous inquiry.

I am curious to see your project’s conclusions.

VHS-to-digital conversion can open up options for accessibility under the ADA. 

Many people have treasured family memories they need to convert a more accessible format.

A converter can also help with the creation of critical and new works.

This converter will be a really valuable service for your patrons.  But your staff member is right to be cautious.

“Ask the Lawyer” has previously addressed the issue of libraries and patrons making copies under various circumstances (search the “Ask the Lawyer” archives).  In those previous answers, among other things, we reviewed the special rights libraries have to make and convert copies under Section 108 of the Copyright Act, which applies specifically to libraries and archives. 

Those previous answers cover some of the fundamental elements of this question.  They also each include a careful emphasis that patron duplication of audio-visual works (like movies) are mostly excluded[1] from the protections of Section 108, even when the copy is being converted from a medium that is obsolete. 

What does all this mean?  The staffer is absolutely right—commercial movies might be a resource patrons are eager to convert using the library’s equipment. . . And that could create an infringement a concern

Fortunately, Section 108[2] has a remedy for this problem.  So long as the converting machine displays a notice that “The making of a copy may be subject to copyright law,” the library will meet the requirements of 108 to avoid the imposition of liability for unsupervised patron use of the equipment.

The “unsupervised” requirement is critical, here.  If a patron’s use of the equipment is supervised by an employee, or the patron’s behavior makes it obvious that systematic infringement is going on, 108 might not apply[3].

So, a few things to help you be cautious:

1.When setting up the new equipment, select a place where patron privacy can be honored and employees can’t “supervise” the use of the equipment.

2) Posting “The making of a copy may be subject to copyright law” is a requirement to limit the library’s liability for a patron’s “unsupervised” use.

3)  Keep in mind that any obvious copyright violations (like someone stacking an entire collection of BBC miniseries next to the converter and generating multiple DVDs[4] of each one) should be promptly addressed through your patron code of conduct.

Which brings us to the final part of the member’s question: what language, both posted and in a code of conduct, can position a library to observe that last bullet?  Patron codes of conduct generally have copyright infringement sections, but if your library does not, a good start is:

The [NAME] library is committed to maximum content access through the Americans with Disabilities Act, Section 108 of the Copyright Act, Section 110 of the Copyright Act, and Section 107 of the Copyright Act (Fair Use).  However, use of library resources to generate or access copies beyond those rights cannot be supported by our library.  Although patron use of such resources is unsupervised, reproduction equipment such as photocopiers, scanners, 3-D printers, and VHS converters are all marked “The making of a copy may be subject to copyright law.” 

Any observable use of library equipment to access or make multiple copies in violation of copyright, trademark, or patent law is prohibited under this policy and will be addressed as a violation of this Patron Code of Conduct.

Thank you for this insightful question. I hope many weddings, graduation ceremonies, and birthday parties recorded in the 1990s find a new digital life in your library!

As the member shows here, there are a lot of questions within the big issue of “contributory infringement” via use of the internet in libraries.  And because they all relate to legal liability, they are scary for library staff and leadership.

To take the edge off that fear while defining “contributory infringement,” please enjoy this bad joke:

“Knock-knock.”

“Who’s there?”

“Contributory infringer.”

“Contributory infringer who?”

“Contributory infringer who is liable if, knowing of infringing activity, induces, causes or materially contributes to infringing conduct of another.”

Ouch.  Sorry.  I know that really wasn’t funny.  I have been teaching knock-knock jokes to my 5-year-old daughter, and they are harder to write than you’d think. 

But while the joke was bad, the definition was good.  So, what is “contributory infringement?”  All (bad) jokes aside, contributory infringement—when a person/entity aids to infringement—is a recipe for serious liability, with the contributor “jointly and severally” liable along with the main infringer.

And yes, as the quote from the MPLA says, unlicensed exhibitions of movies in a library can result in a finding of liability for the library. However…

The MPLA is representing an industry.  This “warning” statement is a good example of an industry taking advantage of the complexity of the law to issue a statement that, unless carefully unpacked, will make the reader fear assertions that are grossly overbroad. 

Deconstruct the statement.  As the member fears, at a superficial level it seems to state that every copy of motion picture content accessed through a library’s wi-fi and played on any device might be a “contributory infringement” without a license.  Ouch.  That would be a recipe for disaster, indeed. 

But this is a typical industry over-step.  Fortunately, we fight such over-steps with information, and information is the librarian’s stock-in-trade.

Entire books, law journal articles, and Supreme Court opinions have been written on this topic, but I am going to focus on three bits of practical information that address the member’s concerns.

First, there are obviously sections of the Copyright Act that allow performances of audio-visual works in a library that would otherwise be infringing: Section 107, 108, and 110,[1] depending on the circumstances (including the type of library) can all apply.  I won’t unpack these sections here—the applications are too fact-specific—but let’s just say: “There are ways.”

Second, a user accessing content on a library computer may be doing so under their own personal license (Hulu being a possible example).  There is no requirement[2] in the Hulu license that a user access their personal Hulu account on a device they personally own; in other words, there is no concern if they access it on a library computer (so long as it is only for personal use).  On the flip side, there is no permission from Hulu to use my personal account, via my personal computer, to show a movie to 20 unrelated people and charge admission. So, it’s not so much about the streaming, as what I do with it.  This will vary from platform to platform, but the conditions of use will be in the license.

The third factor is the most important for this question, and is what the rest of this response is about, since it applies to the majority of the member’s hypothetical concerns.

To combat the fear that any re-posting or access to audio-visual copyrighted material via a library user account, website, database, or wi-fi connection is a potential infringement the library could be contributing to, every library should register under the Digital Millennium Copyright Act (“DMCA”), and have a policy for responding to reports of infringement.

Why?  Because under the DMCA, service providers may avoid liability for copyright infringement that occurs "by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider." [3]

This arrangement allows services like news aggregators (think Huffington Post), content providers (think YouTube) and internet access providers (think Verizon) to function without performing a chilling gate-keeping function, giving them what’s called a “safe harbor” from contributory infringement. 

To qualify for this “safe harbor,” a library must be ready to show that it:

(A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement . . ., responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

So powerful is this “safe harbor,” that sites hosting infringing content are routinely found non-liable, so long as they designate a DMCA “agent” with the Copyright Office and meet the above elements[4], and can show they acted promptly when the agent was notified of alleged infringement.

Of course, any library considering this approach must do so with its eyes wide open.  The DMCA is not beloved by libraries; the ALA has some choice criticism of the advantages the “notice and takedown” process gives content owners, and the rough road the process presents to fair use.[5]  Nevertheless, the DMCA remains a legal tool that addresses all of the member’s hypothetical concerns and solutions.

To illustrate, let’s run through the member’s examples a bit. 

First, the member lists the different types of technology access and use that could be used as a basis for a claim of contributory infringement.  The member is right to be concerned, because regardless of the ownership or type of device used in the library (library computer, or patron-owned device, phone, tablet, desktop computer), if an unlicensed movie is being shown at the library (with or without the use of library wi-fi), it runs the risk of being an infringing performance.[6]  But so long as the library is not aware of someone using the library’s wi-fi or website to show, post or share infringing content (or the use is not so flagrant that the library “should have known”), and the library meets the other elements listed above, DMCA “safe harbor” can apply.

Of course, this means the library must be able to show it does not have “actual knowledge” that an infringing performance is happening.  If the library is hosting obviously infringing activity (like a person sitting on top of the reference desk ripping movies in plain view while singing “I am pirating a copy of “Lego Batman, hooray!”), “safe harbor” might not apply.  But if the library is hosting someone quietly accessing a copy of “Lego Batman” on their personal computer (perhaps with a future fair use defense due to using the content in a documentary on deconstructing traditional notions of masculinity via comic-book-based animated children’s movies), and the library has no knowledge of the action, it would be tough to show “actual” knowledge. 

NOTE: again, this tension, and the fact that what looks like infringement can often be a fair use, is one reason the ALA and others have an issue with the DMCA.

How does a library relying on the DMCA determine the line between genuine lack of awareness and what it “should know”?  A library’s bar on using library resources for obvious and intentional copyright infringement should be in both its internet use policy, and its patron code of conduct.  “Obvious and intentional” use of library resources to infringe copyright can include:

• Making multiple unauthorized copies of articles;
• Screening movies to a group without a license;
• 3-D printing patent-protected medical devices.

These examples all bring serious intellectual property concerns, and libraries must be positioned through policy to deal with them.  But through a combination of the DMCA and respecting patron privacy, libraries do not need to consider blocking access or specifically restricting specific content to avoid contributory infringement.[7]

It’s an imperfect balance, to be sure.  The ALA and others are right to hold the line on concerns with the over-use of the “notice and takedown” provisions of the DMCA.  But within that imperfect system is the secret to the member’s concerns.

The member’s final three questions are:

Does this mean that we have to block access to these sites or provide proactive messaging at each computer, and/or monitor their computer use?

Should messaging that addresses this issue be included in our wi-fi and/or computer use policy?

Is this something that if we provide computer screens or privacy walls we would reduce or eliminate our role as a contributory infringer?
The answers to these questions are:

• To limit liability under the Copyright Act, there is no requirement to block, seek out, or repeatedly warn against infringement.[8]
• That said, outright theft of intellectual property should be prohibited through library policy and internet/computer access agreements, and observable violations should be addressed through a patron code of conduct.
• Liability for contributory infringement can be reduced by following the DMCA.
• Policies and design that ensure the privacy of users and the confidentiality of patron records can contribute to the reduced liability brought by the DMCA.

Thank you for a good, complex question.  For libraries that have not yet done so, a DMCA policy and registered agent are worth (very carefully) considering.