Streaming of Audio within a public Library

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  • I am not sure if this topic has been discussed here before, so if it has I apologize. My question is this, is it legal for a public library to convert its CDs to digital format and stream the audio to patrons within the library? Fortuna Classical has released a product that would digitize a library's CD holdings and make them available via streaming audio within a library. Their website is available here, They would not be available for Download. I've reviewed the websites that discuss this, and am unsure of the correct answer.

    This section of title 17 leads me to believe that this would be ok,
    17 USC § 108
    "Libraries and archives have additional preservation options under 17 USC § 108 of United States copyright law. One of the few good things included in the Digital Millenium Copyright Act ("DMCA") was a provision that explicitly allows libraries and archives to make up to three copies of a work for preservation purposes. Unlike the rest of the provisions of Section 108, the items being preserved can be in any format (text, images, sound, etc.). Furthermore, the copies can be digital, so long as they are not distributed digitally nor made available to the public in a digital format outside the premises of the library or archives."

    I've also review the MLA Digital transmission page.

    If we own the materials, is this ok?
  • I don't think 17 USC § 108 helps you because I think you are distributing, not preserving. You might not be, but you haven't given me enough detail to think that you aren't. If you can make a compelling argument that multiple copies are not being used, then I would probably accept the preservation argument. That means you can't check out the CDs. Whatever mechanism you use to stream the audio doesn't necessarily have to force single use, but you do should have some kind of data that demonstrates trivial multiple use.

    I'm not extremely familiar with the the sections following 108, but I don't think there is a clear exemption for your situation in any of these sections.

    Fair use, 17 USC § 107, might work.
    Briefly, there are four factors:
    1. Nature of use: commercial vs. educational. I'm not sure that this use is educational, but it's clearly non-commercial. This factor works for you.
    2. Character of work: creative vs. factual. Creative in your case, unless we're talking about something like bird songs. This factor works against you.
    3. Amount used: entire work. This factor works against you.
    4. Market effect: debatable. Again, the multiple uses problem exists.

    So, I think you need to do something to address the multiple use issue. If you do, I think that both 107 and 108 will support you. That doesn't mean that either the RIAA or a judge will agree.
  • Thank you for replying.
    The CD collection in question is a reference collection, that is not circulated. We are a public library, with a massive collection of recordings, and this system would help in allowing our patrons to listen to recordings in the Main library with up to ten access points. The audio would not be available off-site. I don't know of any public libraries that have tried this, which is one of the reasons I have so many questions. If we decide to try this, we would need legal advice, of that i am sure.

    Again, thanks for your input, it is much appreciated.
  • Icicle,

    In a previous thread I posted a message regarding placing a recordings collection on a network. Our collection is very similar to yours. We are a public library with a listening/viewing center, where patrons have access to our extensive reference collection of more than 150,000 recordings, which span the technological bridge from 78's to cd's. In order to bring our service into the 21st century, we have been examining new ways to provide access to this amazing collection.

    Your post provides some encouraging news, however there are still many questions to be answered. In AFry's reply he stated: "If you can make a compelling argument that multiple copies are not being used, then I would probably accept the preservation argument. That means you can't check out the CDs."

    Does this infer that if an additinal copy of the same recording were also available for circulation, that a preservation copy can not be included in this "streaming" collection, which can only be listened to at the central library location?
  • I had a longer response, but accidentally deleted it. Sorry. :(

    I wouldn't want to rely on 108 for this type of activity. Streaming would seem to be distribution, not preservation, and copying for increased or new methods of access aren't really included in the current version of Section 108. In other circumstances, the library and archives exemption seems to indicate that if a work is available for purchase at a fair price, the institution should purchase it. I think you'd have to rely on a fair use argument.

    I think Fortuna Classical is relying on fair use. This is what they say in their FAQ:
    Is the music on Maestro legal?
    Absolutely. It is your right to make copies of the CDs you purchased legally.
    Well... that seems a little too simple to me. That may be true for non-commercial personal use when there's no copyright protection involved, as I think indicated in RIAA v. Diamond, but a library's use is somewhat different. (Of course, advocates of a natural rights view of copyright would probably also not agree with the company's use of the word "right' in this context, but that's another argument.)

    bsloane, I would guess your inference is correct. If you're relying on fair use, have multiple copies would work against you pretty strongly IMHO.

    Now, whether or not the use is fair is as always debatable.

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