 That was like a $7,000 speech you just heard. So we're about saving you guys money here at ARL. When Judge LaValle wrote his seminal article on Transformativeness, I was in sixth grade, so it's good for me to leave it to Peter to talk about that stuff. And I can talk about the part of this that I was a little more directly involved with, which is making this project real in the library community after all the great work that Peter's been doing with his colleague Pat after Heidi in other communities. It was really my pleasure, almost on the day that I started working at ARL, I was told that this was something ARL had in mind and that this was something I might be participating in and I was just overjoyed. And I had been working at an evil corporate law firm, so you just couldn't imagine how much nicer it is to do this than to sort of send nasty grams to bloggers and whatnot. So why does fair use matter to librarians? Well, fair use, I mean, this almost should go without saying, right? It enables core aspects of the library mission, right? So the mission to serve knowledge, preservation of materials for the future, creation of new materials for the present, and keeping the past alive, right? So it was actually a no-brainer to bring fair use best practices to the library community. And it's interesting, there's a lot of really fascinating statistics coming out about the makeup now that we're digitizing and cataloging so much stuff in such a comprehensive way. We're learning more and more about what kind of stuff is in academic and research library collections. And a lot more of it than we thought might be in the public domain, which is great news, and a lot of it is probably orphan, which is not so great news. But there's no doubt that a lot of what people really want access to on a day-to-day basis is going to be copyrighted. And so there's always going to be that question of, what are the legal encumbrances on this material that I need for my class, for my project, and so on. And of course digital innovation brings that really to a head because a lot of this stuff doesn't even exist in a format that is comprehensible to the machines that we are using to do the research that we're doing now. And so are these things going to be on dead trees and dead to modern research methodologies and dead to modern preservation methods and dead to modern ways of making access possible across borders, across geography, and so on. So the implications for fair use for libraries are obvious. But the first part of this project was to see, well, if fair use is so obviously an important tool for libraries, nevertheless, how is it working out out there on the field? What are people doing? How are they able to take advantage right now? Before we go mucking around with what people do and trying to help them, we should see what kind of help do they need. Where are things settled and where are things up in the air? So we spend a year talking to librarians one-on-one for an hour or more each to 70-odd librarians all summer long, talking to people about what's happening on your campuses. When does fair use come up? When does copyright come up? When do you need to access this stuff? And when that happens, what do you do? What are the kinds of strategies you employ? Who do you have to talk to? Whose permission do you need? Who needs your permission? And we found that there was a lot of insecurity and hesitation out there. There was a lot of, well, lots of people ask me and I never signed up for that job. And I haven't been to law school or, you know, lots of people ask me and no one is helping me give the clear answers that I need to be able to give. Or, you know, I'm told the resources that I have access to right now are written by companies that make a lot of money when I'm scared, right? If you go online, you can find a lot of fair use guidelines written by folks who stand to gain from you not understanding fair use and from you not taking advantage of it. And so if I just do a search on Google or Yahoo or Bing for, uh, some people do that. For fair use, you're going to get a lot, a lot, a lot of stuff and not all of it is as helpful as it could be. So we found that overall, fair use was not being used as much as it could be. Overall, folks were feeling uncomfortable and that led to literal costs like cash money, people wasting time, wasting money on projects that then get scrapped because at the last minute somebody gets a kind of copyright panic. We learned it was leading to deformed scholarship. We learned that there were literally grad students being told, you know, I wouldn't pursue that research project because at our university you have to deposit your dissertation in our repository and our repository requires that every piece of third party material be signed off on literally permission from some rights holder. And your project is too weird. It's got too much stuff in it from other people. You want to include video stills and video clips or you want to mash together different kinds of media and you will never get to clear that. It's the documentary problem all over again with universities playing the role of the insurers or pro-quests playing the role of the insurers and saying, don't touch that project right now because it's too weird, too risky. And really there was this kind of intuitive risk aversion and intuitive risk avoidance going on as a substitute for really understanding what the real risks are and making a rational choice in the face of those real risks. Instead people would say, well, I've heard of that guy so we're not going to digitize the letter. So for example there were boxes and boxes of letters that people would have in a big digitization project and the letter from the gardener to the guy who donated this stuff that's fine. But the letter from Frank Sinatra to that guy, no, except which letter do you think people want? I mean who's doing research on the gardener? So there was a real deformity of mission in this way of thinking. So having sort of documented these deformities and documented the way that things were going in some places, and again this was not universal. In order to get to this best practices posture that we're in now there have to be really good guys out there, too, and people working hard and we're in the home of the good guys here and there's lots of people who are really doing the right thing and working hard to get this right. And so it wasn't the case that all libraries are just completely confused and baffled and fumbling, but it was the case that enough are that we need to get together and talk and figure out what are the good guys doing and how can we all learn from that. So the code of best practices and fair use for academic and research libraries. I'm learning to say that and to write it. I think I need a macro on my computer so I don't have to type it over and over. Where did it come from? It was created by librarians. As Peter said, he and I are lawyers and in fact even Jonathan Band who if you follow ARL much, you'll probably know some of his work, he's a fantastic copyright lawyer who does a lot of work for ARL and he joked, you know, I could write a best practices, right? I mean like any lawyer has his own sort of in his mind could codify his own best practices and you can take that for what it's worth. But we thought based on the fantastic work that Peter and Pat have done and again based on this wonderful trend in the law now of transformative use and of deferring to community practice that there's real value in putting our own kind of prejudices and pet theories to one side and just taking these basic principles to the community and saying how would you apply them to the problems that you have. So that's what we did. So we did these focus groups. The focus groups were 10, 8 to 12, usually about 10 folks from every kind of institution you can imagine. I mean lots of folks obviously from fantastic places like UCLA and big places you've heard of but also lots of places that you know where good people are trying to do good work and they don't have these kinds of resources and so we got every kind of institution from everywhere in the country. We went from coast to coast and we luckily were able to compel people to drive from wherever they are to where we are in some cases. And we talked to 90 librarians from 64 institutions across 9, 4 hour discussions. So 36 hours of I don't think the Constitution took that long. A lot of deliberation and we took to these groups scenarios based on the concerns that we heard in the first phase. So we asked them to use stories, stories that we sort of derived from typical experiences in the interviews and said well so what would you do if you're this librarian what would you do in this situation? How could you make sense of what you want to do or is your impulse defensible? And so sometimes people said well let's just go for it and the discussion sort of ramped back to a place of comfort. And sometimes people said oh god we can never do that. And they sort of ramped up to a place of courage. And so it's really interesting to watch the way these things evolved. And across these focus groups we found a kind of weighted consensus. You know there were always some folks that were sort of unconvinced, unconvincible about their position on either side. There were folks that said I will always go for it. I will never countenance these limitations. And you know you can put this document out but I'll be damned if I'm going to be limited by it. And there were other people that said this is insane. I will get sued if I do what you people want me to do. You can put this document in out but I will never use it. And those people are fine. They're outliers, right? That's the way this process works. You have to put some of those outliers aside and go where the weighted middle was. And there really was strong, strong weighted middles around all of these principles across all of these focus groups. Now all that said, librarians can write this document. They can come to a consensus. And you know and Peter and I who love librarians so much and work for them on a daily basis can say this sounds great. And that's all well and good. In ARL you know we say things all the time about what we think is good for libraries to do. But we really wanted this thing to pass muster with folks who might raise an eyebrow and say why should we sort of let the lunatics run the asylum, right? Why should we cut the librarians loose to tell their counsels how to interpret the law? And so we brought in a panel of outside experts. That is people who had not been involved in this project from the get-go. People who you know they were not involved in the deliberations. Now some of them work at academic institutions or at libraries but most of them didn't. Now these are just copyright guys and gals. Copyright people and their job was not to say you know go forth and if you do what's in this I guarantee you my word on my law degree that you will not get sued, right? No one can do that and that would also be malpractice. And I'm not going to do it today. So this is not, this was not them saying you know put my name on it it's a legal memo from me to you and it's my advice that I would give to you as the safest course every time. It was have the librarians come to a consensus that is reasonably defensible given what we know about fair use law, right? And that's kind of the best you can do really in the context of fair use because fair use law is not settled yet. And so what we can really, we had some room to come down to a consensus and say well for librarians where there's really not a lot of case law we have room to declare now among our community where our norms are and the lawyers looked at it and said okay. So how can you use this thing? As Peter said this is not legal advice. It's not self executing. It's not going to tell you what to do. It's not going to tell you exactly what to do in your situation. You have to apply it. You have to use it to help you, help guide your own thinking. It doesn't tell you the answers but it tells you the questions. And so one way to think of this is as a new input for what we call risk management, right? It's not risk aversion. It's knowing exactly what the real risk is and then deciding whether it's worth it. Deciding how you can minimize it and deciding whether you can go forward and stomach that risk. There will always be a risk. One of our legal reviewers, a guy named Kevin Smith who I love, love and he makes the fantastic analogy to slip and fall problems, right? If you are a university and you think what I'd really love is some fancy marble staircases on our fancy new building, somebody's going to slip and fall, right? And you have to figure out, what are the odds of that slipping and falling? How can we make that less likely? How can we warn people about it and how can we design the steps to make them safe? But ultimately there is that ineliminable, inevitable risk that someday somebody is going to be angry at you and they might, might sue and you can't make that never, never happen. No lawyer can give you a magic wand that says you will never, ever get sued. And again, if they did, that's malpractice. I'm not doing that. And it's the same here, right? The idea is not that we are giving you some kind of full proof, lawsuit proof guide to policy making. It's an input that says this is what librarians think is really important. This is what librarians think is a powerful aspect of their mission, an important part of what they're all about. And so it doesn't just tell you something about the risk side of doing something, that is what's the risk that I'll get sued. But there's also the risk of not doing anything, right? The cost to the mission of walking away from a project that is really justifiable that librarians think could be really important. What is that cost of not going forward with a really powerful project because of some ineliminable risk? So that's part of how this thing is supposed to be kind of an input. And so now we're gonna go back and forth, Peter and I, and talk about some of these principles and just kind of give you a little quick glaze of what these principles are all about. Among the back channel responses I'm getting from colleagues in the copyright community, there's one very interesting kind of vein, which is people are writing to say, you know, this is really a kind of a conservative document. There are things in those limitations that go along with the principles that I don't think have any clear, necessary source in the law. And of course what I explained is what I explained earlier and that is that this isn't a lawyer's interpretation of the law, that this is a librarian's document of best practices, which is informed by a wide variety of understandings, including ethical understandings. But there's something else too, which is worth emphasizing about these groups that Brandon described earlier and that is that these discussions, whatever their shape, whether they began with with a conservative view and progressed toward a more courageous one, or whether they began with a far out view and progressed toward a more centrist one, were discussions in which time and time again, librarians manifested a tremendous amount of respect for the institution of copyright. And it is that respect for the institution of copyright, as well as librarians sense of mission that informs these principles with their associated limitations and that makes them in a sense so balanced and again as some of my colleagues would say so relatively conservative. We begin with the first on support for teaching, a principle that is in fact web specific or digitally specific. That's where we found the real questions, the real uncertainties, the real exaggerated caution in some cases resided. That was the situation that arose as worthy of attention in the first stage of this report and that's where we focused the attention of the groups in the focus group stage of the report. And as you can see, the principle is a straightforward one and it is that a wide variety of teaching support activities of which one example is E-Reserves. Another example would be the inclusion of content on course sites, which is something that in many places libraries help to or even in some cases exclusively responsible for facilitating. It would include streaming video. It would include a number of really a full range of digitally enabled activities through which libraries support course activities by making copyrighted content available. So the librarians felt very comfortable with a strong statement of principle. It's very used to make appropriately tailored content available to enroll students via digital networks, but along with that principle. And again, I echo Brandon's caution that this document has to be read in its entirety came a number of important associated, integrally related limitations. For example, that in general one ought to avoid material that has been specifically created for the educational market as distinct from material that began life with another purpose in mind and is now being repurposed for the educational market. That material or access to material ought to be sensibly limited in terms of both who gets it and for how long it's available. That there should be a nexus, a connection between the material that is made available and the pedagogical goals of the instructor on whose behalf or at whose request it is being made available. And of course, not surprisingly, that wherever possible full attribution should be provided. Those are as much a part of the consensus as the principle itself. And in addition to the principle and the limitations which are the core of the consensus, you'll also see in the document in this principle or in any of the principles that follow a third category, which is called enhancements. These are things that in our focus group discussions many people felt would improve or strengthen the argument for your fair use, even though there was no agreement that they were essential to it. They're extra credit, so to speak. And in this case, one of them is of particular interest, I think, and that is the possibility, and I wanna stress this is a possibility, not an integral part of the consensus itself, that one way to achieve the assurance that there is a nexus between the material provided and the pedagogical goals of the course may be in some cases to ask the instructor to briefly articulate that nexus. Again, and likewise, there was a feeling that in general it would be wise, although not necessarily essential, to review the material from time to time to refresh the material so that the relevance of whatever is made available online continues to correspond closely to the pedagogical purposes of the instructor. And I'll turn it over to Brandon for number two. Do-si-do. So the second principle exhibits, both physical and virtual, to use material from library collections to create these kinds of curated experiences has got to be fair. The wonderful, wonderful exhibit that we saw on the way in, right? Imagine if all that dick and stuff could be, and probably it surely could be, digitized and curated and put together with other stuff and so on into a digital experience. Now, the thing that's out in the lobby is fantastic and so fun to look at and so interesting. How could the justification that applies there not also apply online? And that was the sort of core intuition that folks had was we should get over this kind of superstition about the internet and move our practices online where we can. But there were actually, we found in phase one that there were even physical exhibits that were being shut down out of fear about copyright. And so this is not a digital-only principle. Fair use applies, of course, in the physical world. And for folks that were hesitating, for example, to use music and video. That was a huge issue that we found in the first phase that folks were saying, well, you know, for example, if you're having an exhibit about a certain era and music was integral to that era, people worried that if they had little samples where you could say, well, you know, what was this artist? You know, this artist was working in New York in the late 70s. Who were his contemporaries? What was happening around him? Who were his friends? What did it sound like when that person was working? That experience couldn't be sort of curated and put together as part of the exhibit without paying somebody a license. I mean, that seems quite strange and unnecessary. And the librarians felt strongly about that. And so we felt really good about codifying it. And this is a good example that I've run across. The National Library of Ireland has just a wonderful, wonderful exhibit on Yates. And I don't know their copyright law well enough to say whether they needed fair use or anything like it to put this together. But the idea is a really rich exhibit that brings together material to put together a fantastic and coherent story. Really provides a compelling fair use case. I mean, again, in this case, there are limitations that are absolutely integral. And attribution is one of them. You know, attribution is really important. And people felt strongly that, look, you need to know where this stuff comes from, especially if it doesn't come from your library, if you're borrowing from other places. You need to direct people to where it came from. The amount needs to be appropriate. That's another one that came up again. Straight out of the Transformativeness case law, but then applied here in this context. Think about, what's the point you're making with the exhibit? Why are you including this material? How much is appropriate to make the point you're making? And how much would be sort of excessive and unnecessary and beyond? And then there was some queasiness about using fair use to make sort of coffee mugs and t-shirts. So if you're selling souvenirs and things like that, maybe that's not so defensible as putting together a real curated exhibit. So the next thing, which is digitization to preserve at risk items is this was a really interesting discussion, and to explain why it was interesting from group to group, I have to get down in the copyright weeds a little bit and talk about something that I didn't mention in my introductory presentation. I said then that fair use was the big balancing feature of US copyright law, and that's true. But it's not the only balancing feature. There are also written into the law a number of specific exemptions from copyright for particular specified activities. And these you find in section 108 and to some extent in 109 and in 110 for our purposes, especially 110.1 and 110.2, which deal with classroom face to face teaching and sort of digital learning respectively, and of course also, and we'll have more to say about this in a minute, in section 121, the so-called Chaffee Amendment. Here the issue was section 108, because section 108 is a specific exemption written into the copyright law in 1976 and revised a bit since to take account, although by no means full account, of subsequent technological developments that applies to, among other things, library preservation. And we found going into this discussion that there was some confusion on the part of the librarians who were talking with us about the relationship between section 108, which has these very, very specific rules which most of you know, probably know better than I do, on the one hand in 107 fair use on the other. We discovered that there was, and this is, I'm afraid, in part because there has been a kind of a misinformation campaign by copyright owners around this issue. We discovered that there was some belief in these rooms that somehow the very restrictive terms of section 108, which say, for instance, that you can't preserve an item until it's actually disintegrating, even if you know that it's about to, or on its way to, or will soon be disintegrating. We discovered that there were people who had been convinced. I think it's the best way to put it, that somehow that limitation in section 108 carried over in some way to section 107, that it was also a limitation on fair use preservation. So one of the things we had to do in sort of getting these discussions going was to correct that misunderstanding because there is no room for doubter dispute about the proposition clearly and explicitly. The Fair Use Doctrine section 107 supplements section 108 rather than section 108 limiting fair use. It's absolutely clear beyond per adventure that it is possible to engage in preservation relation activities, preservation related activities if they qualify as fair uses even though they fall outside section 108. And that's an important understanding. And once that was clear in the room, then a discussion got going which produced what I think is a very, very balanced, somewhat conservative again, but still useful consensus. And you can see it documented in the code that it is fair use to preserve stuff that's likely to deteriorate or that you only have now in difficult to access formats and it's also appropriate once those digital surrogates have been prepared to make those available to library users so as to relieve stress on the original objects themselves, which seems pretty conservative, but it gets more conservative because the limitations point out that this is not a best practice in situations where there is a generally available reasonably priced market substitute for the item in question, that it is also not appropriate unless appropriate limits are placed on the circulation of the digital surrogates that I described earlier, that attribution is required. In addition, the focus groups felt that there might be situations in which the fair use case would be enhanced, remember this category of enhancements, if some form of technological protection was used with respect to these digital surrogates to prevent their leakage into the general market. Again, that's not an integrated limitation. It's a suggestion or recommendation. It's also very important in this context to remember that although the word technological protection measure is a scary one and a one that I think many of us immediately react negatively to, there are an awful lot of things in the world that may qualify and not all of them are 128-bit encryption. A simple password system of a watermark may also be sufficient for the purpose. So again, is this far out? Far from it. If anything, it may fail to fully exhaust the potential legal envelope for preservation activities outside section 108. But it is, again, the consensus of the community, and it is that consensus, which this document is designed to address. And I think it's a consensus that creates enormous potential opportunities for us in our current situation. Brandon found this absolutely wonderful image of a room that I'm sure exists in many of your libraries. And of course, and what this principle and its associated limitations suggest is that there are things that you can do about this situation. I should also, back to the interesting point about the relationship between 108 and 107, if you're following the lawsuit over the Hottie Trust and its digitization program and its preservation program, if you read what the rights holders say in their press releases so far, that is precisely their argument, that if you're a library, you get 108, man. You stay with them 108. Fair use is not for you at all, which is just completely. It's still in the trade, as a big lie. Yeah, it is completely without legal foundation and a very strange claim to make. But I guess if it's in a press release, they don't have to answer for it. So yeah, so you may be noticing a trend here as we're talking. These limitations, again, we stress this because it was just so important in the process. The limitations and enhancements are vital, especially the limitations. They're really vital to understanding what the principles are. You know, it's nice to get the principles out there and to make a bold statement in some of these areas and say, this is fair, damn it. But it's also very important to know that there were these important bits of context in each case, and so don't pass over those. So the fourth principle is about digital collections of archives and special collections. So this is another area where, kind of like the roomful of VHS tapes, there's roomfuls of stuff in libraries that only exist in libraries, right? And it's not out there on the market. And it can be really, really powerful, fascinating, interesting stuff. But nobody knows who owns them or nobody knows how to get permission to digitize or make them accessible and so on. Just to even begin can stymie you to think about what to do with these collections. But it's part of the kind of magic of fair use that all of these reasons, all of these kind of speed bumps that make you hesitate to approach these projects actually help to strengthen your case in the fair use context. That is, the fact that nobody's out there selling this stuff, and so you can't find them and you can't pay them, also means that you have an extra room to breathe to do these things yourself. So the principle is fairly straightforward. It's fair use to create digital versions of a library's special collections and archives and to make these versions electronically accessible in appropriate contexts, right? So to make these things, to take them out of those dark rooms and make them useful in a new digital context to scholars and researchers and people that need access. Now, there was one thing that was vitally important that sort of came up over and over. We wrote it into the story that we told to people as we talked about these collections to make sure that it came up. And when it came up, there was a very strong consensus. If you have a special collection, that's something like the story that we told, and Pat Offderheide wrote all these fantastic scenarios. She's really good at it, was what if there is a really powerful and influential composer, right? And that composer then passes away and his personal effects are donated by his family to the library. And sort of people care, right? What is on the bookshelf of this composer, right? What was he reading? What was he thinking about when he was working and so on? But some of the stuff on that bookshelf is gonna be like Pulp Fiction, right? Or, you know, the Michener novels and sort of stuff that's popularly available. Now, people want to know he was reading that stuff. But when you're digitizing the collection, is it really appropriate or necessary for the library to digitize the Pulp Fiction and to put that in there and make that accessible out there on the open web or broadly? And the universal answer was no, right? That you should consider, are we really adding value by digitizing this thing? Is this really something the library as part of its mission is uniquely about? Or is that something that we can leave, we can make an indication, that's the real value saying this was in there. And then leave it to all the different ways that people can find this stuff other than at the library. Why should libraries be wasting their kind of time and resources? In addition to the principle of the thing, there was a why would we bother, right? Digitizing things that are already out there. So that really doesn't serve any purpose. Another interesting question was, another interesting, and these again, this gets back to what Peter was talking about, that this is not all stuff that a lawyer thinking about fair use looking at the case law would have said, but that were really important ethical considerations that the focus groups came up with was consider the impact of these materials in terms of privacy, right? If the composer has stuff in his collection, that would really be damaging to someone if they're revealed. That kind of stuff, it's not a copyright question per se, but it goes to your good faith. It goes to your well-intentioned practice as another really good document in this area talks about that you are looking out for people who could be harmed, not just rights holders. It's not just about the rights holders. It's about anybody that could be affected by library activities. And again, attribution is always important. There are things that you could do to sort of enhance your practice in this scenario. So this is something that we put in the enhancement category. And it's really, again, as I said, it's a bit cutting edge. It gets to the orphan works question, which is, if you're dealing with stuff that's really, really likely to be orphaned, like personal photographs, things that really were never published. They were never intended for wide circulation. And so surely what you're doing will be new, sort of by definition, then that's a real enhancement. Now folks didn't wanna say, put that in the principle, but almost every group said, gosh, if it's the kind of thing where no one ever thought that this was gonna be out there, then when we put it out there, surely we're doing something new. When we make it the subject of research, surely that's really a library project and not some usurping of the copyright holder's rights. And again, as Peter said, technical steps to the extent that they're useful to the extent that they're not cumbersome to try to limit the circulation of some of these things can be helpful depending on context. And this is another case where we're not gonna give you the final answer, but we're gonna give you things to think about. So think about that. Put that into your policy framework and think about how it might help. And then another interesting thing, and this comes up in a lot of the principles, is as an enhancement, it could be really useful if you give rights holders a way to let you know that what you're doing makes them uncomfortable, right? And this is not a notice and takedown in the way that the law, the DMCA, the Digital Monetary Copyright Act provides this kind of notice and takedown framework where if someone tells you take it down and you have to take it down in order to benefit from this particular provision, we're not telling you you have to take it down, but we're telling you be open to that conversation. And in fact, when we've talked to people who have been doing this kind of stuff for a long time, the conversation almost always ends pretty well. There's a great Ed Van Gemmert at Wisconsin when talking about the Hattie Trust case said really over 90% of the time when something's been digitized and somebody comes forward and says, wait a minute, that looks like my great Aunt Bertha, the end result is put it out there, you know, make it CC, make it absolutely, positively, not mine, absolutely, positively, do whatever you want with it. And so really these conversations almost always go well, and so it could really be an enhancement to make those conversations happen. And this one is very dear to me because the community with which, well, there are a few communities with which I work regularly and which I admire a lot, and this obviously the library community is one of them, the other is the blind. And this is about disabled access, which is not only an issue for the print disabled, it may also be an issue for individuals with hearing disabilities who want to achieve access to video material through narrative description, for example, closed captioning, but it's important to me because what we discovered in our discussions is that librarians in the institutions from which our samples were drawn want to be able to do more, to make collection materials available to people with various disabilities and often feel constrained by copyright in their ability to do so. And I mentioned earlier that there are these specific exceptions that go along or specific exemptions that go along with fair use. Another one of those is section 121, the Chaffee Amendment, which sets out a very significant but rather rigidly defined set of situations or circumstances in which it will be appropriate on request of a constituent to prepare a single copy in a usable format, which means an accessible format, which means increasingly these days some form of e-text format, perhaps for instance, a daisy e-text. Section 121 is very powerful, but unfortunately, the publishers have seen fit over the last 15 years to raise a series of questions about the meaning and scope of section 121, which have been for some libraries a source of concern and even disablement. And without at all suggesting that section 121 itself should be narrowly rather than broadly and sensibly interpreted, what this principle represents is a documentation of the consensus view of the librarians we consulted that even in situations where, at least according to the publishers, section 121 may not authorize making accessible copies available, section 107 should. And so that principle is simply stated, there's also in the principle another interesting, that aspect of the principle is simply stated, there's also another interesting clause, the second, which is that librarians believe that in addition to being enabled to make section 107 fair use accessible copies for patrons on demand, they also should be able to retain those copies for use in meeting the subsequent requests of other disabled patrons for the same material. They shouldn't have to scan the same books over and over again in order to meet predictable requests from the next semesters or the next years or the next decades group of blind or deaf students and faculty. Now there are some integral limitations which I invite you to look at. Libraries have a responsibility to let the people who receive these accessible copies know what their rights and responsibilities are in connection with using them. If there are inherent time limitations relating to these materials, these are scans of three hour reserve books, for example, maybe it's appropriate to put some time limitations on the availability of the digital copy as well. And of course, coordination with disability services offices in itself enormously important. Among the enhancements, I'd point out that here, as in several other places in the code, the librarians with whom we spoke felt strongly that they were in the best possible position if they made widely known the practices in which they were engaging rather than sort of keeping them close to themselves. There has been in the library community as been true, I think, of other practice communities, sometimes the tendency say, well, we're gonna do this, but we're not gonna talk about it. And the librarians who met with us felt consistently from issue to issue, situation to situation, principle to principle, that talking about what you were doing actually enhanced rather than compromised your argument for the legitimacy of what you were doing. Brandon? So we alluded to this issue earlier. Principle six deals with institutional repositories, right? And that's the one most people use. And this was a source of much consternation in the phase one interviews. Again, we heard of these projects that didn't go forward. We heard of students that had sudden last minute panic attacks associated with graduating that were probably avoidable with some calm and clear application of fair use. So the fundamental principle here is that if it is fair use for the student to put this stuff or the scholar to put this stuff into material that's being deposited into the IR, then it is fair use for the library to accept it into the IR. And to make it accessible to the extent that materials are accessible in the IR. In the case of publicly accessible IRs, right? Where things are gonna be more wide open. Librarians felt again it was great to have a way to let rights holders let us know. Maybe we missed one. Maybe there's something in here that we should talk about. And so have a mechanism to let people say we found something in your IR. And again, nine times out of 10, you can talk it out. 99 times out of 100, you can talk it out. Another interesting limitation, and this comes up in several cases, is that ideally librarians felt it was very, very important to provide basic information about fair use to the users that are involved in these practices. That is a lot of times what libraries are doing is saying these are your rights and I'm gonna help you carry out whatever practice you're interested in. So again, where the faculty is putting something on reserve, where the student is depositing a dissertation, where a professor is depositing a pre-publication manuscript. The librarians felt very strongly that those folks need some guidance, right? And now the level of guidance is gonna depend on the institution and the resources that are available. But at a minimum, some basic guidance on what is fair use, how do you apply some basic principles like the Transformativeness Principle. And then the more the better, right? If you've got librarians on hand that can answer questions, that's great. If you've got lawyers on hand, my God. But the more advice you can give to these folks, the better because you're trying to support them in the exercise of their rights. And then again, attribution comes up. It's just important across the board. And then having a clear policy was an enhancement. And again, because it's hard to sort of prejudge these things and tell people what's gonna be safe and what's not in a way that's responsible. But if you can pull it off, if you can have a policy that works for you, that's gonna help. So the idea is enable people and then stand behind them. And that's the way this principle is supposed to work. The last two things that we have to talk about are principles relating to situations that were widely mentioned in our first survey, but which are I think fairly described as emergent rather than comprehensively present in institutions. Some institutions are confronting the last two issues that we've described. Many I think have not yet gotten to that point but are anticipating them. And the first of those two in principle seven is the creation of databases of collection materials, digital databases of collection materials that enable search or non-consumptive research, research that is interested in measuring or counting features of the texts in the database, but not literally directed toward the content of those features. If I wanna know what mouse models have been most commonly used in experiments reported in scientific journals over the last 25 years, I can create a database of all of those journals and I can rung an Anko mouse and see how many hits I get and then I know something. But I haven't in any way intervened to consult the actual contents of those articles. And search uses are similar. We're interested in not in what books say about a particular topic, but what books may address a particular topic. Anyway, this stuff is fairly new. Most libraries haven't confronted it, a few have begun to confront it, but it is a case where the level of consensus within the community was so complete and so powerful that we felt that we would be remiss not to report it and to describe an emergent best practice, so to speak, which seems present in the field. And this is interesting to me because the librarians are way, way, way out ahead of the copyright lawyers here. The copyright lawyers who are conservative folks for the most part are still sort of scratching their head and having panels and deep discussions about this. And the librarians are, of course, sensibly because they actually know what the issue is about or have sensibly decided that there could be no more obvious example of a transformative use than the creation of a database for purposes of non-consumptive research or search. And suffice it to say that the sort of the copyright brains who we consulted at the end of the day were of the same view. So we can let the academic lawyers go on and have their panels and discussions for the next couple of years, but I think we are perfectly clear as a community or more accurately, you are perfectly clear as a community on this issue and I won't even recite the associated limitations because they're important, but they're also matters of complete and perfect common sense. So this is a case where we hope that by bringing or by coming together at an early point before this issue has actually presented itself in most institutional settings, the librarians who produce the code will actually preempt a lot of unnecessary head scratching and foot shuffling where the path ahead is in fact completely clear. So the eighth principle, the last one is very, very similar. It's an area where typically at the table there was one, maybe two institution represented that were involved in this. And the question was not how can we find the lowest common denominator because clearly it's not a widespread practice yet, but knowing now what we know about this practice and applying general principles, what would everyone do if they had the choice right now to have their institution go forward? How would your institution do this based on what other institutions that are doing it are doing and then thinking critically about that? So the eighth principle addresses collecting stuff that's on the web, kind of what the internet archive does, right? Go out there, grab stuff that's on the web and keep it and make it available in a research context. And folks felt really strongly that this is a really powerfully transformative act, that as these websites are put up for a variety of often time limited purposes and indeed the rationale for capturing this stuff is often that otherwise it will go away. So just by making it permanent and saving it through time, you are doing something transformative compared to the intent of the original creator, right? And then making it accessible for research is again, a further transformative use. So there was a strong, strong consensus on this and the limitations were kind of no-brainers. Just do it right, right? Collect the stuff, get the whole thing, tell us where it came from. If you do it right, if you do it in a conscientious way that every librarian can vary in a common sense way would describe for you. This is obviously a transformative and powerfully useful activity that folks can really get into. And one example that we heard about a lot was Columbia's Human Rights Documentation and Research Program where they're grabbing these sites that if you're documenting atrocities in your home country, that site goes away fast, right? And that information is so powerful and so interesting and so volatile. If we're not collecting it, who is, right? And how is it gonna be useful in the future if folks aren't going forward with these projects now? So there was again, a powerful, powerful mandate on this even though it's not a dominant practice yet. It's not something everybody's doing but there was a strong feeling that surely everyone can do it. So that sort of wraps up the principles. Practice makes, I hate these animations. Practice. No. I do, I hate them. So, but there's lots more information about this stuff. So this is another sort of procedural thing that I can talk about. The code and lots more stuff, videos, featuring me doing a lot of this. I really, if I had a million dollars, I would pay that million dollars, create a time machine, go back in time and tell myself not to do it. But you can see these fantastic videos with Peter and myself and Pat and lots of other people talking about fair use, talking about these codes, giving some basic background. You can refer, folks that say, I wish I could have been there. You can say, well, here's a lot of related information, a lot of stuff that should help you. Our website, arl.org slash fair use. Easy to remember, it'll redirect to a much uglier URL. Center for social media dot org slash fair use. And there, yeah, I killed it already Peter. It's, Pigep's website is still in progress. But the Center for Social Media website has all of the codes. This is Peter and Pat's fantastic book, On Sale Now. In the bookstore, he's signing them. And it describes this process, you know, and it describes the rationale behind this process. And it's really revolutionary, this revolutionary movement that they're fostering. Please share this presentation in its entirety. Use fair use to exert it. The Andrew W. Mellon Foundation, a grant from that foundation was integral in supporting this project. Bless you, Andrew W. Mellon Foundation. And research librarians everywhere. Without literally hundreds of you, none of this would have happened and it frankly wouldn't be as legitimate or as interesting or as powerful as we hope it can be. That's our info, email us, bug us. Thank you very much for having us. Thank you. Thank you.