|There are likely some very
good reasons why you chose to go to library school rather than law school.
Alas, although you are most definitely not an attorney, you are sometimes
forced to play one on the Net if you maintain a public Web site.
Certainly, nothing in my
professional background as a librarian prepared me for the complexity of
issues I faced in the 2 years that I worked as Webmaster for the City of
Clearwater in Florida. My humble office on the top floor of the Clearwater
Public Library's main branch overlooked beautiful Clearwater Harbor, into
which I contemplated jumping more than once.
As librarians, we are professionally
inclined to be sensitive to issues involving copyright, free speech, and
accessibility. This is a good thing, inasmuch as these are important Web-related
flash points. However, you may be working with people who are not as savvy
about this stuff as you are. In fact, you may be working for some
people who are, to put it succinctly, clueless.
And then there are the scary
quicksand issues where the legal system is still in flux—links and linking,
for example. Can you stop the local escort service from linking to your
library's Web site? What if they want you to link to them?
Listen up, pilgrims ...
am not a lawyer! In all likelihood, your city, county, academic institution,
or school district has one or more of these properly credentialed professionals.
If you have any questions whatsoever, these are the folks you need to contact
first, in order to cover your, uh, bases. Keep copies of all e-mails (Print
'em out.), paper documents, etc., that deal with these sensitive issues.
And remember that if you work for a public agency or institution, depending
on your jurisdiction, your e-mail may well fall under an open records law.
Sometimes, it's a much better idea to use the phone or take a walk into
someone's office for a face-to-face.
Having discharged my obligation
to steer you in the right direction for legal advice, now I'll share an
ugly little secret with you. The odds are good that the attorneys in your
institution's legal department are, well, less than experienced in the
venue of Internet law. In fact, some of these folks would be much, much
happier if you didn't have a Web site. Others,however, are educable,
and you can perform a heroic act by getting familiar with some of the key
issues, making note of the best cyberlaw resources out there, and sharing
your knowledge as needed.
Web Development Issues
Let's go over a few of
those hairy Web development issues now. The more you know, the less likely
you are to get into trouble.
Many of us learned about
Web design by studying what other Web developers have done. By using the
"view source" option in your browser, you can look at a page's HTML code,
image tags, links, scripts, etc. You may even have copied and pasted someone
else's code into your own Web page. You may have snagged a picture you
liked by doing the right-click "Save Image As" thing.
Maybe some of this stuff
isn't such a good idea.
While the copyright situation
on the Internet is dynamic and confusing to say the least, it's fair to
say that pretty much the same rules apply as in the real world. The five
rights granted to a copyright holder by the U.S. Copyright Act (http://www
are as follows:
Remember, these are the rights
of the copyright holder. You, however, are guilty of a copyright
violation if you take any one of these liberties with a work for which
you do not hold the copyright. (Canadian readers are directed to Department
of Justice, Canada, Copyright Act—http://laws.justice.gc.ca/en/C-42/index.html.)
The right to reproduce the
The right to prepare derivative
works based upon the work
The right to distribute copies
of the work to the public
The right to perform the copyrighted
The right to display the copyrighted
It's common in the library
world to ask our peers on professional mailing lists for examples of Web-based
library services, so we can examine them prior to setting up our own pages.
But we need to be careful that we don't become so enamored with what some
other institution has done that we more or less transplant it onto our
server. It goes without saying that appropriating someone else's text for
use on your own site is a blatant copyright violation, subject of course
to the doctrine of fair use (http://www.bitlaw.com/source/17usc/107.html).
For example, you can quote part of another Web page on a tutorial page
you maintain on your server for educational purposes, or reproduce some
of the text on a site as part of a review of that site.
It's especially easy—and
tempting—to "borrow" photos or graphics from someone else's Web site.
Control this urge even if you think you can get away with it. For one thing,
you usually have no way of knowing the actual origin of an image. For example,
on our Web site, we had a section describing our community that was illustrated
with thumbnails of photos that our tourism office had commissioned from
a local photographer. Suppose someone working on a library or community
Web site in some other beach town spotted that shot of the generic, happy-go-lucky
tourist family throwing cheese curls to the seagulls and decided to do
the right-click thing and save the picture for use locally. And suppose
the photographer who took the original picture happened to be surfing the
Web and ... Well, you can imagine the rest.
Don't try and get around
a situation like this by simply making an image tag in your HTML that links
to the picture on the remote site. For one thing, you're still using an
image that belongs to someone else. And you're compounding the crime by
siphoning off bandwidth from that remote site every time someone visits
your page with the image link.
Of course, there's nothing
wrong with e-mailing the Webmaster of that site and asking about the image
in question. You may learn that it's in the public domain and thus is perfectly
legal for you to use. Or maybe the Webmaster created the image herself
and doesn't mind letting you use it on your site as long as you add a credit
If you make your own graphics,
the copyright issue goes away—unless, that is, you start with something
someone else made and "play around with it" in your image editing program.
Even if you make significant changes to its appearance, you are likely
committing a copyright infringement because you have created a "derivative
So what in the world do
you do if you need art for your Web site but you are not a graphics person?
Well, your Web authoring program may come with a selection of clip art,
and if you use any one of a number of popular Microsoft products (Office,
Word, Excel, PowerPoint, Publisher, FrontPage, Home Publishing, PhotoDraw,
Works), you have free access to Microsoft's Design Gallery Live (http://dgl.microsoft.com),
which not only has tons of downloadable clip art, but also music, video,
animations ... Be sure to read the end-user license on the site (http://dgl.microsoft.com/mgo1en/license.asp?MSCOMTB=ICP_License)
to make sure your planned use of these materials complies with the terms
and conditions set down by Mr. Gates and company.
The Web itself is full of
clip art archives. Try Yahoo! (http://dir.yahoo.com/Computers_and_Internet/Graphics/Clip_Art),
the Open Directory (http://dmoz.org/Computers/Graphics/Clip_Art),
or About.com (http://webclipart.about.com/internet/webclipart).
The About.com site has a section of clip art specifically related to books
and reading at http://webclipart.miningco.com/internet/webclipart/msub56.htm?pid=2747&cob=home.
For other library-oriented
clip art, try these sites:
What holds true for text and
of code. If you find something "neat," don't just copy and paste the code
into your own Web page. Either e-mail the Webmaster and see if he or she
is willing to share, or check out one of the public domain archives (i.e.,
Linking and Framing
Links between pages are
the raison d'être for the world wide web. Without widespread linking,
the web as we know it would not exist. Nevertheless, there are questions
about the legality of such connections.
—BitLaw: Linking and Framing
It should be a no-brainer.
If someone uploads content to the Web for all to see, then anyone should
be able to link to it. And you, as a Webmaster, can pick and choose which
pages you wish to link to. (We librarians have a phrase for this—"collection
Well, that may have been
true back in the early days of the Web. If you've been at this as long
as I have, you may remember when you went to the National Center for Supercomputing
Applications' What's New page to learn about fresh content, and it was
actually possible for a person to surf the entire Web. Folks, that was
less than 10 years ago. For a vivid look at the way things have changed
since then, head over to the Perkins Coie Internet Case Digest database
and do a search (http://www.perkinscoie.com/casedigest/icd_search.cfm)
on the keyword "linking." You'll get back several dozen synopses of lawsuits
in which Web links were the major point of contention. It's pretty amazing—and
scary—how many ways there are to get yourself into trouble with linking
these days. Let's take a look at some of them.
Derivative works: We
discussed this a bit above, when we talked about manipulating graphics
in an image editing program. People have also gotten whacked upside the
virtual head for creating whole Web pages and sites that constituted derivative
works. Example: You're a "Dilbert" fan. (Who isn't?) You're an especially
big fan of Catbert, Evil H.R. Director. You create a fan site for Catbert,
and you link to the image of every "Dilbert" strip featuring Catbert that
you can find at http://www.unitedmedia.com/comics/dilbert,
so that these strips appear on your pages. Friend, you've just created
a derivative work, and the lawyers from United Media will soon be breathing
down your neck.
Reverse passing off:
the Dilbert example above. Only this time, when you link to the Catbert
strips, you include an introductory paragraph suggesting that they are
your own original works. Or you just post 'em on your site with no attribution,
so that a third party viewing your site (a particularly dense third party,
in this instance) may well believe the strips are your original work.
because some shortsighted politician killed a funding bill that would have
meant an increased allocation for local library services does not mean
that you can create a link to his legislative page from your site using
words that insinuate he is a pedophile.
decide to create a Harry Potter page for your youth services department
site. You think it would be a good idea to link to the image of the Harry
Potter shield logo at http://harrypotter.warnerbros.com/web/platform/index.jsp
so that it appears on your page. AOL Time Warner's attorneys would beg
to differ with you. (Disclaimer: Although I am not a lawyer, I am an AOL
Time Warner employee, and they have lots and lots of lawyers.)
have a community calendar of events on your Web site. One of the upcoming
events is a rock concert for which tickets are available through Ticketmaster.
Good librarian that you are, you seek to facilitate access to the key information
by linking directly to the page on Ticketmaster's site that announces the
concert. You soon find out that Ticketmaster has lots and lots of lawyers,
too. (Heck, they even sued Microsoft: http://legal.web.aol.com/decisions/dlip/tick.html.)
Ticketmaster doesn't like it when its home page, with its rich collection
of advertising and links to affiliates, is bypassed.
can make navigation difficult, and they are often employed poorly on Web
pages. But using frames the wrong way can create legal problems as well.
You can run into all of the problems discussed above simply by framing
content from other sites. So, it's probably unwise to make this sort of
thing a critical design element of your Web site. Enough said.
As I found out the hard
way, other issues crop up when someone wants to link to you or would like
you to link to them. (See my Internet Waves column in the November
2000 issue of Information Today on p. 42 for the full story.
It's also on the Web at http://www.llrx.com/features/internetwaves.htm.)
If you work for a public library or other tax-supported institution, drop
what you're doing (after you finish this magazine, of course) and start
hammering out some sort of written policy about external links. You'll
probably have to run this by your legal folks at some point, but you're
probably better off writing up something yourself, involving maybe your
boss and/or the library director. (If the legal department has to start
from scratch, it could get ugly.)
My article, "Linking Policies
for Public Web Sites" (referenced above), among other things, discusses
a very important appeals court case (see http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=6th&navby=case&no=00a0235p).
To make a long story short (and how many legal proceedings are not long
stories?), a guy who published a gadfly alternative newspaper often critical
of the City of Cookesville, Tennessee, wanted a link to his publication's
Web site from the city's site. When he was turned down, he, uh, sought
redress in the judicial system. A district court dismissed his suit, but
an appeals court "reversed and remanded" the dismissal because "the city's
policy on allowing links from the city's Web site was not viewpoint-neutral."
The appeals court felt the gadfly's First Amendment rights may possibly
have been violated.
First Amendment Issues
As a librarian and a journalist,
I'm pretty much a First Amendment absolutist. But knowing what I know about
running a public institution's Web site, I'm well aware of when the First Amendment
can get you into trouble.
Interactive Discussion Forums
It's my considered opinion
that chat rooms and interactive bulletin boards on government Web sites
are nothing but disasters waiting to happen. You may have the best intentions
in the world; you may have what you consider to be a bulletproof written
policy about what is and is not allowed. Nonetheless, I can almost guarantee
that someone will perform one of these evil deeds:
Encouraging public input is
fine—include a feedback form or e-mail addresses of appropriate individuals.
But I'd strongly advise against providing an ongoing electronic forum for
attention seekers. Heck, newspapers pick and choose which letters to the
editor to publish, and even then will edit the original content. But try
doing something similar on a government Web site bulletin board and you
will be accused of censorship.
Find a loophole and exploit
it by posting advertising or other spam
Hijack the bulletin board for
his or her own personal jihad
Dominate the board by bullying
and driving away other users
Subject local officials to
ongoing ridicule and/or abuse regardless of facts
Let's make government more
like business. Let's sell advertising on the municipal Web site. Gee, the
online library catalog page gets a lot of hits. Let's stick a banner on
Alas, you may be too far
down your employer's decision-making food chain to have any input on this
issue. But don't kid yourself that it can't happen to you. Government agencies
are cash-strapped, at the same time they're having to shell out megabucks
for information technology upgrades.
Let's "monetize" the Web
A company called govAds
which bills itself as "the country's first Internet advertising network
for government Web sites," can help. Says govAds:
The Internet has
revolutionized all aspects of business and has created a new standard for
private enterprise. It's now time for the public sector to embrace this
paradigm. govAds is the bridge between the status quo and the "e" volution
into the digital world of Internet advertising.
As I see it, there are two
issues here. The first is that, regardless of how many disclaimers you
post, many people will regard the presence of an ad on a government Web
site as an endorsement of the product or service being advertised. If a
banner ad for Yahoo! appears on a library'sWeb page, it would not be a
stretch for someone to assume that the library is making a portal recommendation.
The second issue involves
advertising content. Who decides what is and is not appropriate? govAds
says it "only selects advertisers/sponsors whose products and services
may be lawfully purchased by individuals of all ages" and that it "utilizes
internal appropriateness standards to ensure that the advertising/sponsorship
placed on the site is compatible with the integrity of the site." Is that
specific enough for you? Or do you, as Webmaster, want to be the advertising
gatekeeper? What happens when a banner ad for Barnes & Noble or Amazon.com
pops up and the local independent bookseller calls to complain?
Section 508 of the Workforce
InvestmentAct of 1998 required all U.S. federal agencies with Web sites
to make those sites accessible to individuals with disabilities, within
24 months of enacting the law. Well, the regulations were released last
and the clock is ticking.
"But wait," I hear you cry.
"I don't work for the federal government. None of this stuff applies to
Think again. Just because
the URL of your Web site doesn't end in ".gov" doesn't mean you're off
the hook. Do you work for a dot-edu that accepts federal grants and/or
And then there's the "effective
communications rule" of the ADA (Americans with Disabilities Act). I direct
your attention to a letter from Deval L. Patrick, assistant attorney general,
Civil Rights Division, U.S. Department of Justice, to Senator Tom Harkin,
dated September 9, 1996 (http://www.usdoj.gov/crt/foia/cltr204.txt).
The letter is a response to Harkin on behalf of a constituent who wanted
information regarding accessibility and the Internet. Patrick writes:
The Americans with Disabilities
Act (ADA) requires state and local governments and places of public accommodation
to furnish appropriate auxiliary aids and services where necessary to ensure
effective communication with individuals with disabilities, unless doing
so would result in a fundamental alteration to the program or service or
in an undue burden.... Covered entities under the ADA are requiredto provide
effective communication, regardless of whether they generally communicate
through print media, audio media, or computerized media such as the Internet.
Covered entities that use the Internet for communications regarding their
programs, goods, or services must be prepared to offer those communications
through accessible means as well.
While virtually all of us
embrace the concept of accessibility in our libraries, we may overlook
elements on our Web sites that can frustrate someone with a disability.
Fortunately, there is no shortage of information on Internet accessibility.
An excellent place to start is the online version ofBarbara T. Mates' comprehensive
book, Adaptive Technology for the Internet: Making Electronic Resources
Accessible to All, available on ALA's Website: http://www.ala.org/editions/openstacks/insidethecovers/mates/mates_toc.html.
This pretty much tells you everything you need to know and points you in
the direction of other appropriate resources.
Web Design Isn't for Quitters
Good luck with these issues.
I hope I haven't confused you more, or made you want to jump out of your
office window. See the sidebar I've included for even more resources and
advice, and don't give up! Use your common sense—if something seems like
a bad idea, it probably is.
|I Am Not a Lawyer.
You Are Not a Lawyer. He/She/It Is Not a Lawyer.
We’ve all heard that, "Ignorance
of the law is no excuse"—even when the law is being hammered out on a daily
basis, as is the case with so many Internet-related issues. If you have
any responsibility at all for your institution’s Web presence, you have
an obligation to keep current on developments in cyberspace law. Allow
me to recommend some of my favorite resources:
BNA’s Internet Law News
Yes, BNA is giving something valuable away for free. Compiled by professor
Michael Geist, this is a free daily e-mail summary of developments in Internet
law with links to full text.
Cyberlaw Informer (http://mishpat.net/cyberlaw):
free weekly electronic newsletter that offers news and updates about computer
and Internet law from around the globe. Topics include domain names/trademarks,
cybercrime, online jurisdiction, censorship, Internet commerce and taxation,
and digital signatures.
Download This (http://newsletters.findlaw.com/sample/downloadthis.html):
Weekly e-mail newsletter covering law and the Internet from the people
at the legal research site, FindLaw
LLRX Update (http://www.llrx.com/email.htm):
is a unique, free Web journal dedicated to providing legal professionals
with the most up-to-date information on a wide range of Internet legal
research and technology-related issues." Subscribe to the e-mail update,
which notifies you when new content has been posted on the site.
TVC Alert (http://www.virtualchase.com/tvcalert.shtml):
An every-weekday electronic newsletter primarily for legal researchers,
but it often includes links to news items and resources on Internet law.
And these Cyberlaw Resources
belong in your bookmarks list:
A comprehensive Internet resource on technology law, containing over 1,800
pages on patent, copyright, trademark, and Internet legal issues
source for Internet, computer and technology law
Cyberspace Law for Non-Lawyers
Online course by Larry Lessig, David Post, and Eugene Volokh—covers copyright,
privacy, trademark, free speech, libel, contract law, content regulation
(CDA), and dispute resolution
Provides legal information for Internet and technology professionals, Internet
entrepreneurs and the lawyers who serve them—produced exclusively by lawyers
and law professors
Katsuey’s Legal Gateway:
Legal Issues for the Internet and Cyberspace (http://www.katsuey.com/group3ba.htm):
Annotated list of links to articles, regulations, case law, bibliographies,
and other related resources
Perkins Coie LLP Internet
Case Digest (http://www.perkinscoie.com/casedigest/default.cfm):
Compilation of cases designed to bookmark, collate, and monitor important
developments in Internet law, including cases that have significant implications
for Internet legal issues even if they are not directly related to the
Internet—browse by topic or search.
Shirley Duglin Kennedy
has worked in public, academic, and special libraries, but is most at home
on the Internet. She writes the Internet Waves column for Information
Today and is the author of Best Bet Internet: Reference and Research
When You Don't Have Time to Mess Around, published by ALA Editions in
1998. Her day job is Web Guide manager for eCompany Now (http://www.ecompany.com),
Time, Inc.'s e-business publication from The Fortune Group. She telecommutes
from her humble home in Clearwater, Florida, where her office staff consists
of three cats and those two stalwart gentlemen, Ben and Jerry. She has
a B.S. from Philadelphia College of Textiles and Science and an M.L.I.S. from
the University of South Florida. Her e-mail address is email@example.com.