Author: Gerri Moeller
Lending CD-ROMs to Patrons: Considerations for Librarians
Libraries that wish to lend computer software programs on CD-ROM to patrons must deal with a broad range of issues, including copyright and licensing concerns. Here is an attempt to summarize some of the major issues and provide some guidance to libraries struggling with this issue.
Copyright
Copyright law is very clear that one copy of a computer program may not be installed on two separate computers, unless the license specifically allows it. Very few computer software licenses allow this. Therefore, if you purchase a computer program, you may not install it on two computers in the library, or a library computer and your home computer, or install it on a library computer and then lend the software to a patron. If you have software installed on a library computer, and you wish to circulate a copy of that software program, you must buy an additional copy of the program for circulation purposes. Per the Copyright Act, a computer program can only be installed on one computer at a time (from Title 17 of the U.S. Code, available online at http://uscode.house.gov/usc.htm).
Copyright law does not prevent a library from lending computer software to patrons. Libraries can lend software as a “fair use” of the copyrighted material. However, a warning about copyright restrictions must be placed on the item being lent. The regulation specifically states that the label should be durably affixed to the software itself, or to the container. The notice must be legible, and “readily apparent to a casual user of the computer program.” Here is the text of the warning:
Notice: Warning of Copyright Restrictions
The copyright law of the United States (Title 17, United States Code) governs the reproduction, distribution, adaptation, public performance, and public display of copyrighted material.
Under certain conditions specified in law, nonprofit libraries are authorized to lend, lease, or rent copies of computer programs to patrons on a nonprofit basis and for nonprofit purposes. Any person who makes an unauthorized copy or adaptation of the computer program, or redistributes the loan copy, or publicly performs or displays the computer program, except as permitted by Title 17 of the United States Code, may be liable for copyright infringement.
This institution reserves the right to refuse to fulfill a loan request if, in its judgment, fulfillment of the request would lead to violation of the copyright law.
This helps protect the library from liability, should the patron make and keep an illegal copy. If you’d like the full text of the code, it’s available at http://www.access.gpo.gov/nara/cfr/ or in the paper copy of the Code of Federal Regulations at 37CFR201.24.
Note that the library has some specific obligations. If the library is aware of or has substantial reason to believe that the software may be used in violation of copyright law, such as 1) making and keeping a personal copy, 2) using the software for profit-making purposes, or 3) publicly performing or displaying the computer program, the library should not loan the software. Loaning the software under these circumstances may make the library liable for copyright infringement, as the library has “enabled” someone to infringe copyright.
Backup copies
Of course that brings up a question. Is there any authorized copying? The answer is yes, but it’s very limited. Libraries are allowed to make up to 3 copies for archival (backup) purposes per the Digital Millennium Copyright Act, available online at http://www.loc.gov/copyright/legislation/dmca.pdf. The copies cannot circulate, but are to remain in the library in case of failure of the original. If the original fails, a copy of the backup may be made, and the backup copy can be circulated. If a format becomes obsolete, libraries are permitted to copy the item onto a different medium, for instance from a 5-1/4” floppy to a 3-1/2” floppy.
Licensing
Many software manufacturers include shrink-wrapped licenses that prohibit libraries from lending software. However, according to Commonsense Copyright, this doesn’t mean that users forfeit rights granted to them in the Copyright Act. For standard mass-marketed programs with a shrink-wrap license, certain restrictions do not apply. Even if the license agreement says you 1) cannot make an archival copy and 2) can’t loan the program as a library service, 3) can’t make adaptations to run the program and 4) can’t allow borrowers to make adaptations to run the program, you are still allowed to do these under the Copyright Act.
Other portions of the license do apply, as long as they don’t restrict your legal rights under the Copyright Act. If in doubt, check the license!
Practical Concerns
Lending CD-ROMs to patrons is not without other practical concerns. The most common problem will most likely be a program that will not run on your patron’s computer. There are many reasons why this might happen. Here are some of the possibilities.
- The system does not meet the requirements for the computer software. It is too slow, or doesn’t have enough memory or hard drive space to run the computer software.
- The system exceeds the requirements by too great an amount. (Older software may not run on very fast computers. Much computer software is not “downwardly compatible”. It isn’t designed to run on older computers, only computers with current technology.)
- The patron has changed settings on their computer or has other software installed that interferes with this program. More common than you think, this one can be nearly impossible to troubleshoot.
- The program is faulty or flawed in some way. (This could mean that it works occasionally, or most of the time.)
Choosing Software
Some of the practical concerns about lending software to patrons can be minimized by carefully choosing the software you lend.
Make selection decisions for your collection in the same way you’d make selection decisions for other portions of your collection.
Does it make sense to lend this item? Many software programs aren’t good candidates for lending. For instance, most computer games aimed at an adult audience are long, and unlike children’s games, are designed to be played in a specific order in order to complete a “story.” These longer games are unlikely to be finished in one circulation period, and also unlikely to be borrowed again, as the previously played portions of the game would need to be replayed before moving on to the “new stuff.” Most business applications also wouldn’t be useful for a short-term rental. If you want to provide access to these, it makes more sense to provide them for use on library computers. Operating systems should never be lent, as they are only useful if copied onto the hard drive, and retained after returning the original software.
Is there demand? Have people asked for the item?
What is the quality of the product? Quality varies greatly from product to product, so read as many reviews as you can. Remember, you don’t need to put all donated software into your collection. Don’t add an item to your collection if it doesn’t work, if it isn’t an appropriate format, or if it doesn’t fit into your collection policy. Make sure that any donated software is original, and not an illegal copy.
Recommendations
So, what’s a librarian to do? If you decide that circulating CD-ROMs is the best thing to do for your library, there are things that you can do to protect your library from licensing and copyright violations, and to help keep your patrons happy with the service you provide.
- Keep in mind that one software program can only be installed on one computer at a time. There are no exceptions to this. If you wish to circulate a program that you have installed on a library computer, you must buy an additional copy for this purpose.
- Attach an exact copy of the copyright warning provided under the Code of Federal Regulations to each circulating copy of a software program. These labels are available for purchase from library supply companies like Brodart and Demco. Search for them under the name “copyright warning label.”
- Make sure that all library employees and volunteers are aware of the restrictions on making copies of computer software. Ensure that they know that the library conforms to these restrictions and make sure that they abide by the letter and spirit of copyright law.
- Choose software carefully. Make sure it is appropriate to lend, will meet the needs of your community, and is a quality product.
Disclaimer
Please note that the author of this document is a librarian and not an attorney. These guidelines are not legal advice and are not intended as such. Librarians who wish to make legal decisions for their libraries should consult an attorney.
Resources
Talab, R.S. (1999). Commonsense Copyright: A Guide for Educators and Librarians. Jefferson, NC: McFarland & Company, Inc., Publishers.
Hoffman, Gretchen McCord (2001). Copyright in Cyberspace: Questions and Answers for Librarians. New York, NY: Neal-Schuman Publishers, Inc.
Ensor, Pat, ed. 2000. The cybrarian’s manual. Chicago, IL: American Library Association.
Supporting public libraries in Outagamie and Waupaca counties