[Athen] Alternate Formats and Varying Editions of Textbooks

Butler, Brandon (bcb4y) bcb4y at virginia.edu
Fri Jan 17 08:09:27 PST 2020

Hi all,

With all due respect to Susan and Wink, the claim that purchase is required by copyright law has no basis in copyright law. I am a copyright lawyer and one of the authors of the white paper, which was based in part on a convening of copyright experts, including lawyers from the University Counsels’ offices at UVA and the University of Michigan, the counsel to the Internet Archive, counsel to the Association of Research Libraries, and my friend Blake Reid, who is a professor at CU's law school and the Director of the IP Policy Clinic there. (The full list is in the Acknowledgments section of the paper.) I’m sure Blake would be happy to talk to you about the project if you have questions, Susan. He’s an expert in both disability law and copyright law.

I can also assure you that the analysis in the white paper applies expressly to DSOs, universities, and even large groups of universities, and not only to libraries. It is based on legal provisions and precedent that apply broadly to any authorized entity (in the case of Section 121) and to any lawful user (in the case of Section 107).

Finally, if you wait for more caselaw or for another revision of copyright, you may be waiting for a very long time, but luckily we have very recent caselaw AND revisions to copyright that make clear that no purchase is needed before accessible copies are provided to qualified recipients. The Authors Guild v. HathiTrust case is the only case ever to construe Section 121 or to apply Section 107 to accessibility. If we wanted to design the perfect case to prove that we can provide accessible copies to students without making them buy inaccessible copies, we couldn’t do much better than HathiTrust. In that case, the court considered whether the University of Michigan could provide accessible copies of books from the HathiTrust collection to students with print disabilities without any payment or permission from the copyright holders. The court said, categorically, yes. The recently-passed Marrakesh Treaty implementation bill made a few modifications to Section 121, and all of them were designed to expand accessibility. None of them added a purchase requirement, which did not exist prior to Marrakesh. So we have a recent case that is perfectly on point, and recent legislation that is also on our side.

Anyway, that’s a short version of the much more detailed arguments in the white paper. I promise it’s not a tough read, and will reward your time and attention.


On Jan 17, 2020, at 10:01 AM, Susan Kelmer <Susan.Kelmer at colorado.edu<mailto:Susan.Kelmer at colorado.edu>> wrote:


The student deserves to have the right version of the textbook, period. If everyone else in the class, and the instructor, are using the 7th edition then why are you telling your student with a disability that they can only have the 6th? That is RIPE for a lawsuit filed by the student against your institution.

Get the edition the student needs, remediate as necessary. That is our job, and we need to be doing our job.

Ignore the people who have responded that your student doesn’t have to show proof of ownership (note I did not say proof of purchase). That white paper that is being tossed around covers LIBRARIES but does not cover DSOs producing alternate format directly. This is still a very grey area, and it is better to err on the side of caution until further clarification from the courts or the federal government. A white paper is not law, it is simply an opinion piece. I ask for proof of ownership from the student (aka, show me your book). And I give students the version they are requesting and have obtained. There are some publishers that require proof of purchase before they provide files, which means I then do ask the student for a receipt, which I heavily redact of any personal/identifying information and provide to the publisher.

Susan Kelmer
Alternate Format Production Program Manager
Disability Services
Division of Student Affairs
T 303 735 4836


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From: athen-list <athen-list-bounces at mailman12.u.washington.edu<mailto:athen-list-bounces at mailman12.u.washington.edu>> On Behalf Of Mary Popish
Sent: Thursday, January 16, 2020 5:50 PM
To: athen-list at u.washington.edu<mailto:athen-list at u.washington.edu>
Subject: [Athen] Alternate Formats and Varying Editions of Textbooks

Hello, everyone!

I have a question about how different campuses manage alternate format delivery for textbooks when the required edition is different from a digital version that your office may already have from a previous year or other student. For example, if your office has a digital version of the sixth edition of a textbook and a student has purchased the seventh edition but needs some remediation to make the book accessible digitally, what do you do? Do you request the seventh edition from the publisher (or Bookshare, or AccessText, or whatever your process is)? Do you check with the student and the instructor and deliver the sixth edition if it would still work for the class? What about copyright, since the student bought a different edition of the book?

We've been talking about this a lot in our office, and we haven't landed on a great solution yet. I'd love to hear how other offices handle this sort of thing.

Any input would be greatly appreciated. Thanks so much!


Mary Popish
Adaptive Technology Specialist & Alternate Formats Coordinator
Disability Resource Center
Portland State University

Phone: (503) 725-9119
Fax: (503) 725-4103
Email: drc at pdx.edu<mailto:drc at pdx.edu>
URL: http://www.pdx.edu/drc
Pronouns: she / her / hers

athen-list mailing list
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