List of forums • View recent posts • View recent comments • • Go to daisy.org

DAISY and US Copyright Law

Submitted by jem40000 on Sun, 2010-01-10 07:18

General

My name is John Edwin Miller and I am a US Library of Congress Certified Braille Transcriber. The leadership of the DAISY Consortium is doing a great disservice to print disabled Americans citizens by not acknowledging that, as defined under US Copyright Law Section 121(d)(4), DAISY may not and probably does not conform to the definition of ‘Specialized Format’ and therefore may not qualify for exemption from Copyright infringement. Section 121 (d)(4) "specialized formats" means - 1. Braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities; and The ANSI/NISO Z39.86 Standard itself for DAISY says: 1.3 Strategy This standard is based primarily on a variety of widely used standards and specifications, including several from the World Wide Web Consortium and the Open eBook Forum™. Wherever applicable and appropriate standards or specifications existed they were used. The use of these specifications and technologies is intended to promote a fast and consistent adoption of this standard for the target population, while encouraging its extension into mainstream use. http://www.niso.org/workrooms/daisy/Z39-86-2005.html#Strategy Rather than acknowledging that a strict interpretation of Copyright statute would exclude DASIY from Copyright exemption, the leadership and other stakeholders are orchestrating a dance and acting as if it does so qualify knowing that, unless and until someone with a reason to challenge does in fact challenge that notion, the status quo is just fine. Even the US Department of Education General Counsel’s Office and its OSEP Office, whose entire IDEA 2004 and NIMAS program is predicated on Chafee exemption from infringement, when requested in writing, was unwilling to issue a statement that it is the official position of the Department that DAISY is a ‘Specialized format’ under the Section 121 (d)(4) definition. At the SCCR US Copyright Office Hearings in May 2009, Dr. Kerscher practically re-invented the statute language in saying that a ‘Specialized Format’ should be ‘clarified’ as one that can be ‘effectively’ used by persons who are disabled rather than mention the Statute word “exclusively”: quote: Specialized Formats: Today, formats have been developed that are "universally designed." For example the DAISY format (officially the ANSI/NISO Z39.86 Specification for the Digital Talking Book) or the EPUB specification for eBooks are universally designed. It should be clarified that when talking about specialized formats, we mean that formats that can be effectively used by the target disability group. It is also true that these formats are equally useful by the mainstream population. It is essential that specialized formats be clarified to include those that are universally designed… unquote http://www.copyright.gov/docs/sccr/comments/2009/kerscher.pdf Mark Maurer, President of the NFB, said that, while ‘correctly’ interpreted DAISY should qualify as a ‘Specialized Format’, there is no definitive ruling that it actually does. quote: Several features of the statutory language raise questions about whether it can be extended to the production of e-texts to meet general accessibility needs. One, of course, is the definition of a text in a “specialized format,” which Sec. 121(d) (4) states is “exclusively for use by blind or other persons with disabilities.” Formatting standards designed with accessibility for people with print disabilities in mind (such as DAISY or EPUB) are, of course, not useful just for this community. In fact, they are “universal” designs, which could potentially be equally useful for the mainstream population. The National Federation of the Blind strongly believes that, correctly interpreted, the Chaffee Amendment covers e-texts, but acknowledges that authoritative support for this interpretation would be welcome. unquote http://www.copyright.gov/docs/sccr/comments/2009/maurer.pdf The problem is, given the statute language, the authoritative interpretation would most likely not support the NFB’s ‘strongly’ desired interpretation without delving into the conundrum of ‘intent’ and syntax of the legislative committees which drafted the Chafee Amendment statute in 1996. Your DAISY Consortium leadership and other stakeholders should be taking pro-active measures in recognizing that a reasonable interpretation of the Copyright law might just as easily exclude DAISY as include it and work with publishing, copyright ownership, and other interests to form an agreement that a special case or waiver be made such that no challenge of infringement of Copyright takes place …because there are intellectual property interests right now that are aware of this ongoing possible infringement based on a claim of Section 121 (Chafee) ‘Specialized Format’ exemption, and being so aware, they cannot let it be said they became aware of a possible if not likely infringement and did nothing about it. A challenge could be as simple as filing ‘in good faith’ a DMCA takedown notice with any group, for example Bookshare.org, posting a DAISY file while claiming via the Chafee Amendment an exemption from Copyright infringement. The quote from the DAISY.org website “Due to a special provision in the U.S. copyright law, Bookshare.org is able to publish any U.S. copyrighted work without needing permission” is only true if Bookshare.org publishes in a Specialized Format. Finally, there is a potentially dangerous precedent being set by the disability community: The precedent would be that while a strict interpretation of copyright statute would exclude DAISY as a Specialized format in that it is not ‘exclusively' for persons who are disabled, your leadership and other stakeholder organizations want to use the interpretation that it would not have been the ‘intent’ of the drafters of the Legislation to exclude DAISY as it is so obviously valuable to the visually disabled community. DAISY was not specifically mentioned as a ‘Specialized Format’ as was Braille although DAISY existed at the time the Chafee Amendment Legislation was enacted in 1996. There have been several references that the Chafee statute language was 'carefully crafted'. The problem is that down the road, in a far more important or compelling issue, the shoe may be on the other foot, and the disability community will be the party who will want the strict interpretation of statute and you will then, as Shakespeare wrote, be hoist with (your) own petard. And as Associate Justice Scalia has written: “I do not think…the avoidance of unhappy consequences is adequate basis for interpreting a text.”

Response

Submitted by George Kerscher on Tue, 2010-01-12 10:56.

The intent of the “specialized format” is to keep the materials away from mainstream consumption. The old way of doing this was through a format which required a special player that played the 4-track tape (C1) issued by the National Library Service for the Blind and Physically Handicapped (NLS). Today we know that keeping the materials away from the mainstream and preserving the commercial interests lies in administrative safeguards, such as subscription models that allow access through usernames, PIN numbers and/or passwords. NLS, RFB&D, and Bookshare.org all use the DAISY format and distribute reading materials under the Chafee copyright exception.

DAISY & US Copyright Law

Submitted by jem40000 on Tue, 2010-01-12 14:26.

It might also not have been the 'intent' of the Statute authors to deny the University Disability Service Office members of the group AHEAD to act as 'Authorized Entities' under the Statute as they provide extensive services to their students who are print disabled. But it has been the interpretation of intellectual property interests that the words 'primary mission' in the section 121d1 statute language is sufficient to exclude them.... and one might say that it was never the late Senator Chafee's 'intent' to so exclude those worthy AHEAD members. In the December 2009 statement at the SCCR meetings in the Geneva, Switzerland, the US delegation said: "Of course, the United States is not alone in serving those with print disabilities through 'carefully crafted' limitations and exceptions in copyright law" and that carefully crafted section 121 d4 statute language includes the word 'exclusively'. All those you mention above proceed as if, in the NFB's Mr. Mauer's words, there already has been 'authoritative support' for your interpretation on Specialized Format. "That's the way we always have done it" is not much of a legal defense... and even though those stakeholder groups as of today distribute reading materials in the DAISY format claiming exemption from infringement, that does not mean tomorrow there could not be an authoritative ruling that, regardless of the DRM measures some groups might deploy, DAISY does not so qualify.

Request for US Department of Education interpretation re: DAISY

Submitted by jem40000 on Tue, 2010-01-12 15:41.

Please Note: The following memo was sent to the US Department of Education, Office of Special Education Programs (OSEP) on October 22, 2009. There has yet to be a reply from either OSEP or the US Department of Education Office of the General Counsel. Begin memo: Subject: Interpretation of 'Specialized Formats' under IDEA and NIMAS Regulations Hello (OSEP Project Specialist) -- Re: 34 CFR 300.172(a)(1)(iii) & IDEA 674(e)(3)(D) I have decided to take your advice and have registered with American Printing House (APH) as an Accessible Media Provider (AMP) as I am a US Library of Congress Certified Braille Transcriber. I am very concerned, as, in a detailed reading of both the written and oral testimony at the SCCR Copyright Office hearings in May, 2009, it is clear that persons such as Dr. Kerscher of DAISY, Marc Maurer of the NFB, and Allan Adler, Esq. of the AAP are uncertain as to whether DAISY is a 'Specialized Format' as defined under your Re-Authorized Statutes. If even those persons mentioned above cannot make any emphatic statement as to DAISY's status as a 'Specialized Format', knowing full well that they feel DAISY OUGHT to be so included, how is someone like an AMP or a small Authorized Entity around the country, participating in the preparation of NIMAS based materials, supposed to make such a determination as to whether they are in infringement of Copyright? Even (the Director) of NIMAS/CAST wrote to me personally in 2007: "An exact definition of “digital text” in the context of the Chafee copyright exemption has yet to be determined." DAISY was in existence when the Chafee Amendment was drafted in 1996 and certainly when the re-Authorized Statutes were written in 2004, yet in neither case was DAISY specifically mentioned as was Braille. Part of the confusion is that the ANSI/NISO standards themselves for DTB/DAISY specifically state that DAISY is not exclusively designed for or intended exclusively for persons who are "Blind or other persons with disabilities." On September 19, you wrote to me via email: (quote) LOC interpretation. On Tuesday I talked with you about the interpretation the LOC sent in response to your questions. The Department of Education (ED) general counsel does not interpret the statutes of other Federal agencies. They advise ED program staff, who manage projects as I do, as to a project’s legal sufficiency under IDEA (Individuals With Disabilities Education Act) and their adherence to ED policies and procedures when program staff request this input... (end quote) As the general Counsel does not interpret the statutes of other agencies, I suppose he does interpret the statutes of your agency namely those under 34CFR300 when so requested. So, I would request that you request of the General Counsel an interpretation of 34CFR300.172(a)(1)(iii) as to whether 'Specialized Formats' does in fact include the DAISY format protocol which is further defined under the Copyright Act Section 121(d)(4)(A) as "Braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities;" [34 CFR 300.172(a)(1)(iii)] [20 U.S.C. 1474(e)(3)(B)] “Specialized formats” has the meaning given that term in section 674(e)(3)(D) of the Act (“Specialized formats” means Braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities; and with respect to print instructional materials, includes large print formats when such materials are distributed exclusively for use by blind or other persons with disabilities). An official position expressed by your General Counsel would go a long way to indemnify any NIMAS Authorized Entities and other participants, who in some cases have received extensive Federal Funds and Grants, if they were challenged by any copyright owner. Without such an interpretation by the General Counsel, they may be putting themselves at risk on a daily basis for infringement of Copyright. I feel this is an obligation on your Department as the specific copyright exemption authorization for NIMAS is under: (quote) Section 121(c): Notwithstanding the provisions of section 106, it is not an infringement of copyright for a publisher of print instructional materials for use in elementary or secondary schools to create and distribute to the National Instructional Materials Access Center copies of the electronic files described in sections 612(a)(23)(C), 613(a)(6), and section 674(e) of the Individuals with Disabilities Education Act (IDEA) that contain the contents of print instructional materials using the National Instructional Material Accessibility Standard (as defined in section 674(e)(3) of that Act), if (1) the inclusion of the contents of such print instructional materials is required by any State educational agency or local educational agency; (2) the publisher had the right to publish such print instructional materials in print formats; and (3) such copies are used solely for reproduction or distribution of the contents of such print instructional materials in specialized formats. (end quote) As materials are in fact being reproduced and distribute on a daily and ongoing basis, and based on the testimony at the LOC SCCR hearings that DAISY's inclusion as a Specialized Format has never been interpreted by any competent authority -- judicial or legislative -- or in any venue in writing, and that the 34CFR300.172(a)(1)(iii) clause comes clearly under the purview of the Department of Education (IDEA), and, should someone challenge that DAISY is NOT so considered a Specialized Format, many Authorized Entities and AMPs might be at risk for infringement of Copyright, I would consider this to be a matter of great urgency for you and your General Counsel... Thank you. John Edwin Miller

Specialized Format and 'Exclusive' Access

Submitted by jem40000 on Wed, 2010-01-13 01:39.

In comments submitted November 13, 2009 to the US Copyright Office as per Federal Register request for Comments, October 13, 2009, prior to the SCCR meetings in Geneva, Dr. George Kerscher wrote: Quote Specialized formats: Authorized entities should continue to be allowed to produce alternative versions suitable for the blind and print disabled population without regard to the format. The original intent of this stipulation was to keep the titles intended for persons with disabilities apart and separate from the commercial products. This can be accomplished by limiting the access to the alternative formats and by technological safeguards. End Quote And in his reply to my original post on DAISY.org/forums, Dr. Kerscher wrote Quote 'The intent of the “specialized format” is to keep the materials away from mainstream consumption... Today we know that keeping the materials away from the mainstream and preserving the commercial interests lies in administrative safeguards, such as subscription models that allow access through usernames, PIN numbers and/or passwords.' End Quote. So instead of the generally accepted notion that the word 'exclusively' in the Section 121 d4 statute language is meant to convey an attribute of the format, the implication is now that the word 'exclusively' is actually referring to the target audience itself that becomes 'exclusive' by virtue of limiting access via DRM control and other administrative safeguards. I can only then infer that Dr. Kerscher is saying that Braille or DAISY materials with the appropriate DRM controls and other safeguards then qualify as specialized formats, and that any Braille or DAISY or digital audio file without appropriate DRM and other such safeguard controls, even if prepared by a bona fide 'Authorized Entity', does not so qualify. And as to the mention of 'without regard to the format' above in his November 13 remarks, I would infer that if an Adobe PDF file has the appropriate DRM controls, then PDF itself becomes a 'specialized format'. I guess the Chafee Amendment wasn't so 'carefully crafted' after all.

DAISY and DRM

Submitted by jem40000 on Fri, 2010-01-15 16:38.

In comments submitted November 13, 2009 to the US Copyright Office, Associate Register for Policy and International Affairs , Dr. George Kerscher wrote Quote: This can be accomplished by limiting the access to the alternative formats and by technological safeguards. End Quote And in the Reply by Dr. Kerscher in this Forum above Quote: Today we know that keeping the materials away from the mainstream and preserving the commercial interests lies in administrative safeguards, such as subscription models that allow access through usernames, PIN numbers and/or passwords.End quote Excerpted from the DAISY Board of Directors Position Statement on Digital Rights Management (DRM) DAISY Consortium Board of Directors November 2007 Quote: Accessibility of digital content including commercial and non-commercial eBooks and DAISY Books is of paramount concern to the DAISY Community. A major issue in this domain is Digital Rights Management (DRM) and the Board of Directors of the DAISY Consortium wishes to make its position on this issue publicly known. The DAISY Board does not in any way promote DRM. The Board believes that DRM limits the legitimate use of digital publications by persons who are blind and print disabled. Persons who use Assistive Technology commonly manipulate digital publications in ways that most people without disabilities do not understand. Moving an eBook to a portable device with refreshable braille, or copying it to a hand held device for reading "on the go" are two simple examples of common legitimate usage that are prevented by DRM. From a content management or library perspective, DRM can complicate or make impossible the upgrade of digital collections to new and future technologies. For these and other sound reasons, the DAISY Board is publishing this statement to discourage the use of traditional DRM encryption whenever possible... We are now seeing much greater acceptance of "watermarking" and "fingerprinting" rather than encryption in DRM systems to discourage illegal use of content. We believe that no encryption or watermarking is the single best approach, but do understand that there are rare situations in which these must be used... We feel that if a DAISY Consortium Member is explicitly required by the copyright holder and/or the laws of that country to use technological safeguards, then this must be respected... The DAISY Consortium Board of Directors End quote (current on DAISY.org website as of 16 January 2010) So I guess the furtherance of compliance with Section 121d4 -- whether DRM is "explicitly required" or not -- must be one of those "rare" situations.

DAISY and DRM Take 2

Submitted by jem40000 on Wed, 2010-01-20 17:26.

Note: Update from 1996 NFB statement regarding Chafee Copyright notice below. To: US Copyright Office RE: Comments in Response to Notice of Inquiry on Facilitating Access to Copyrighted Works for the Blind or Persons With Other Disabilities April 21, 2009 Allan Adler, Vice President for Legal & Government Affairs Association of American Publishers Excerpt. Quote: (p.3-4) … AAP began helping Bookshare obtain credibility as an “authorized entity” under the Chafee Amendment, encouraging publishers and authors to accept and support Bookshare’s policies and practices for “scanning” or acquiring digital files of print books that qualifying subscribers to the Bookshare library service can download in accessible DAISY and BRF digital formats. AAP’s support reflected Bookshare’s expression of sensitivity to the legitimate concerns of copyright owners, and its pursuit of a declared intent to ensure that its operations are “Chafee compliant” by working with AAP on matters such as its Seven Point Digital Rights Management Plan and the terms of its legal agreements with qualifying members, volunteers and contributing publishers and authors. Excerpt (p.7) … But, in the years since its enactment, the Chafee Amendment has been embroiled in debates regarding who qualifies as an “authorized entity,” what kinds of “audio” or “digital text” reproductions constitute permissible “specialized formats,” and under what circumstances can an individual qualify as an eligible beneficiary within the definition of “blind or other persons with disabilities.” Such disputes are not abstract or academic, as they have complicated efforts to enact and implement other laws that have been built on the foundation of the Chafee Amendment, including various pieces of State legislation and the IDEA Act of 2004. Unfortunately, they have also occasionally increased tensions between the publishing community and disabilities advocates. End quote From the Bookshare.org Seven Point Digital Rights Management Plan. Quote. 2. Contractual Agreement All Bookshare users have to agree to terms of use that forbid violation of the copyright law restrictions on redistribution and use of copyrighted material. Users who violate these terms will lose their access to Bookshare and may suffer other legal consequences as a result of their actions. Attorneys from the publishing industry had the opportunity to comment on these agreements and Bookshare made numerous changes in response to their concerns. 3. Copyright Notice In order to comply with the copyright law regulating the provision of accessible books to people with disabilities (17 U.S.C. § 121), Bookshare ensures that all copyrighted materials bear a notice that any further reproduction or distribution in a format other than a specialized format is an infringement.. Such content includes a copyright notice identifying the copyright owner and the date of the original publication. End quote The Chafee Section 121 (b)(1)(B) notice must be inserted into every BRF or DAISY file that Bookshare.org or any other Authorized Entity makes under provisions of the Chafee Amendment… and the corollary as interpreted in writing to JEM by the US Copyright Office is that ‘further reproduction and distribution’ that remains in a specialized format is *not* an infringement so long as the same notice is contained. This point was vigorously disputed by Bookshare.org and its legal advisers. Note: Memo from US Copyright Office to JEM 07 JUN 2007: Quote. There is no legislative history on section 121, so we have no interpretation of it from Congress. Taking the language of the clause literally, it would imply that further reproduction or distribution in a specialized format is permissible, as long as the copies bear that notice. Otherwise, there would be no reason to have that notice requirement. End quote. Counselor Adler of the AAP wrote to JEM personally 14 Aug 2007 Quote: I do not disagree with the view that you and the Copyright Office take regarding the [Section 121 (b)(1)(B)] notice requirement. However, I think you miss the point that, in telling its members that they cannot further reproduce or distribute a digital text Braille (BRF) file they have legitimately received from Bookshare acting as an authorized entity under the Chafee Amendment, Bookshare is explaining and enforcing its own contractual membership terms, through which it can legitimately prohibit its members from such further reproduction and distribution as a contractual matter… This, in turn, depends upon whether the "further reproduction or distribution" language in (b)(1)(B) is intended to refer to the copies of the work that are reproduced by an authorized entity in specialized formats (as I think it does) or whether it refers to the copies in specialized formats that are thus made (as you think it does). Absent legislative history and judicial construction, it is unclear. End quote. However, if Counselor Adler contends that such language refers to the copies made by the Authorized Entity, where is the utility and what function does it serve in putting the notice into each and every BRF or DAISY file that is received by a Qualified User? Or as JEM wrote to the Project Manager at OSEP, US Department of Education, 20 SEP 2009: quote “How can an authorized entity institute procedures in your words ‘to protect against copyright infringement’ that which the statute clearly says such action is *NOT * an infringement of Copyright?” End quote Counselor Adler thus recognizes the Statute language but says that it is OK to construct a Contract that (in his words) would ‘legitimately prohibit … as a contractual matter ’ a set of conditions that would nullify, contravene or abrogate Statute language… as in prohibiting ‘further reproduction and distribution’ whether it is in an ‘other than a specialized format’ or not. Edit Update: And as the National Federation of the Blind contemporaneously wrote in 1996 upon passage of the Chafee Amendment: Quote. ... The provisions in this section make permanent changes in the copyright act and have taken effect upon enactment. This means the following: (5) Every work which is reproduced in a specialized format must include a notice that further reproduction without permission of the copyright holder is prohibited unless the reproduction is in a specialized format. The notice must identify the copyright owner and the date of the original publication. End quote. Associate Justice Scalia wrote in ‘Eastern’ concurrence No. 99—1038 quote “There is not a single decision … in which we have refused to enforce on “public policy” grounds an agreement that did not violate, or provide for the violation of, some positive law” End quote. …which simply means that if the language of a contract would contravene or abrogate some ‘positive’ or specific Statute language, such contract, if challenged, could not be enforced. Dr. Kerscher has suggested above that ‘exclusively’ in the Section 121 d4 language as regards specialized format is now a matter of ‘exclusively’ controlling access by contract DRM rather than by any attribute of the format itself… Such that a format may qualify as a ‘Specialized Format’ with the requisite DRM controls but the same format may not so qualify absent such controls. There is even the suggestion that there should be two types of ‘Authorized Entities’: A first class of Authorized Entities that has instituted sufficient DRM practices and a second class which has not so instituted... So, once again, I guess the definitions of 'Specialized Format' and 'Authorized Entity' were not so 'carefully crafted' after all.

Bookshare.org and Chafee Amendment requirements

Submitted by jem40000 on Fri, 2010-02-05 05:01.

Nota Bene N.B. The following post assumes that information placed on the Bookshare.org website by Bookshare.org is accurate (as of 5 FEB 2010). Item Number 3 of Bookshare.org’s Seven Point Digital Rights Management (DRM) Plan states (Begin quote) 3. Copyright Notice In order to comply with the copyright law regulating the provision of accessible books to people with disabilities (17 U.S.C. § 121), Bookshare ensures that all copyrighted materials bear a notice that any further reproduction or distribution in a format other than a specialized format is an infringement. Such content includes a copyright notice identifying the copyright owner and the date of the original publication. (End quote) However, the boilerplate Front Matter notice on Bookshare.org’s Legalese page states: (Begin quote) Legal Text in Books This is the text that is in the front of every Bookshare book to remind Members of the legal use and restrictions on use of the digital book. Book front matter (Known or thought to be copyrighted) Bookshare.org distributes this accessible media under restrictions set forth either in copyright law or in an agreement with the copyright owner. If you are not a person with a print disability, or an agency serving people with print disabilities, you should not use this accessible media and should destroy this content. You are not allowed to redistribute content derived from this accessible media to anybody else, with one exception: we allow hardcopy Braille books prepared from Accessible Media to be provided to other blind people. (End quote) From US Copyright Act Section 12b1B: quote Copies or phonorecords to which this section applies shall - … (2) bear a notice that any further reproduction or distribution in a format other than a specialized format is an infringement; end quote The language required under Section 121 b1B, especially the words “in a format other than a special format”, is not included in the Bookshare.org boilerplate as even the Item #3 of the Seven Point DRM Plan above so indicates. In order for an Authorized Entity such as Bookshare.org to exercise Copyright exemption privileges of Section 121a of the US Copyright Act (whereby an Authorized Entity can reproduce and distribute books in a specialized format without requiring permission of the copyright holder), any Copyrighted material reproduced and distributed under the provisions of the ‘Chafee Amendment’ exceptions to copyright must contain the FULL Section 121 b1B language; any materials produced and distributed claiming provisions of Section 121a without the required notice may be considered in infringement of the Copyright Holder’s interest. Therefore, any Copyrighted materials that have been or are being distributed, other than by direct waiver of rights from the Publisher or other responsible party, may be considered to be in infringement of said Copyright Holder’s interests. … and that would include BRF files as well as any DAISY materials.

DAISY and Specialized Formats

Submitted by jem40000 on Wed, 2010-03-03 23:41.

The reauthorized Individuals with Disabilities Education Act (IDEA) was signed into law on Dec. 3, 2004, by President George W. Bush. As of that date the 1996 Chafee Amendment was also further revised. “Specialized formats” was newly given the meaning in 2004 that it now "... includes large print formats when such materials are distributed exclusively for use by blind or other persons with disabilities." Large print was not previously mentioned as a "specialized Format". The drafters of the revised Chafee statute in 2004 could have easily specifically mentioned DAISY as a "specialized format" at that tine. They did not. Where was the DAISY Consortium leadership?