Free for a Fee

The final report of the Section 108 Study Group is available at http://www.section108.gov/.  Among other recommendations, the report endorses an important new exception that would allow libraries to preserve websites under the following conditions (see p. 104 of report):

A new exception should be added to section 108 to permit libraries and archives to capture and reproduce publicly available online content for preservation purposes, and to make those copies accessible to users for purposes of private study, scholarship, or research.

a. ???Publicly available??? for purposes of this exception is defined as publicly disseminated online content (such as websites) that is not restricted by access controls or any type of registration, password, or other gateway requiring an affirmative act by the user to access the content.

b. Once a library or archives has captured publicly available online content, it should be allowed to provide access to its preservation copies of this content to researchers on the library???s or archives??? premises.

c. Libraries and archives should be permitted to make the captured content available remotely to their users, but only after a specified period of time has elapsed.

2. Opting Out

a. Rights holders should be able to opt out of allowing libraries and archives to capture their publicly available online content, with the exception of government and political websites. The recommendation
to include an opt-out clause is conditioned on the Library of Congress being able to copy and preserve all publicly available online content, regardless of the rights holder???s desire to opt out.

b. Rights holders who do not opt out of capture and preservation of their publicly available online content should be able to separately opt out of allowing libraries and archives to make their content available remotely to users.

3. Libraries and archives should be prohibited from engaging in any activities
that are likely to materially harm the value or operations of the Internet site hosting the online content that is sought to be captured and made available.

4. Libraries and archives should be required to label prominently all copies of captured online content that are made accessible to users, stating that the content is an archived copy for use only for private study, scholarship, and research and providing the date of capture.

Brian Berlandi: “What State Am I In: Common Law Trademarks On The Internet“:

This essay explores the interaction between common law trade-
marks and the Internet—a relationship that has yet to be scrutinized by
the intellectual property and Internet communities. More specifically, it
strains to identify a common law mark’s territorial zone of protection
with respect to the Internet. This is an ambitious endeavor from the
start, for there is no case law or published academic material available
or directly on-point. As a result, this essay will not be a critique of judi-
cial precedent or academic opinion. Instead, it offers a premonition of
future case law and a foreshadowing of legal scenarios that might soon
be faced by common law trademark owners throughout the U.S.

HT: Steve N.

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