[Athen] Alternate Formats and Varying Editions of Textbooks

[Wink Harner]

Thanks, Brandon.

I'll follow the legal guidance from our college district's legal department
and suggest others do the same.


Wink Harner
Accessibility Consultant/Alternative Text Production
The Foreign Type

Portland OR
foreigntype at gmail.com
480-984-0034

This email was dictated using Dragon NaturallySpeaking. Please forgive
quirks, misrecognitions, or errata .


On Fri, Jan 17, 2020 at 10:40 AM Butler, Brandon (bcb4y) <bcb4y at virginia.edu>
wrote:


> Hi Wink,

>

> Thanks for this response - it does clarify a key issue!  You say you

> request files from publishers — in that case, the publishers can impose

> whatever condition they want on you in exchange for the files, including

> requiring you to promise that the student has obtained a copy. In that

> case, if you make such a promise, you are indeed bound to require purchase

> or other lawful possession. But just to be clear, you are under that

> obligation because of your promise to the publisher, not because of

> copyright law.

>

> If you obtain accessible files elsewhere (like from a library, or a DSO

> colleague), and do not enter into any contrary agreements with publishers,

> you are under no obligation to require purchase.

>

> Also, note that *HathiTrust* was actually a unanimous three-judge opinion

> by the Court of Appeals for the 2nd Circuit, is binding precedent for all

> district courts in the Circuit, and provides persuasive authority

> nationwide. The defendants in the case were entire universities, not just

> libraries.

>

> Best,

> Brandon

>

> On Jan 17, 2020, at 1:12 PM, Wink Harner <foreigntype at gmail.com> wrote:

>

> Brandon et al

>

> I thought I made it clear in my earlier response that proof of

> ownership/possession was required, Not purchase.

>

> Anyone enrolled in a course can purchase, rent, check out from the

> library, borrow, buy used books. There are a lot of ways for any student to

> "provide" this to me for alt-text remediation. I am assuming the copyright

> risk in requesting files from publishers, and in a DSS office, I assume

> this risk on behalf of the college.

>

> I work from a perspective of equity: If all students are required to be

> "in possession of" textbooks for classes, this does not exempt disabled

> students from the requirement.

>

> One judge's ruling about libraries in relation to HathiTrust and copyright

> pertains narrowly to libraries and should not be inferred to apply to

> disabled students in general.

>

> My thoughts on a snowy Friday,

>

> Wink

>

> Wink Harner

> Accessibility Consultant/Alternative Text Production

> The Foreign Type

>

> Portland OR

> foreigntype at gmail.com

> 480-984-0034

>

> This email was dictated using Dragon NaturallySpeaking. Please forgive

> quirks, misrecognitions, or errata .

>

>

> On Fri, Jan 17, 2020 at 8:45 AM Butler, Brandon (bcb4y) <

> bcb4y at virginia.edu> wrote:

>

>> Susan,

>>

>> You’re right, we should probably agree to disagree. But you (and others)

>> may find this passage from Judge Barrington Parker’s opinion on the market

>> effect of HathiTrust enlightening—apparently many authors are paid in grins

>> and giggles when publishers sell books in accessible formats, so perhaps

>> they would not be opposed to the same level of remuneration from

>> universities:

>>

>> The fourth factor also weighs in favor of a finding of fair use. It is

>> undisputed that the present-day market for books accessible to the

>> handicapped is so insignificant that “*it is common practice in the

>> publishing industry for authors to forgo royalties that are generated

>> through the sale of books manufactured in specialized formats for the blind*....”

>> Appellants' Br. 34. “[T]he number of accessible books currently available

>> to the blind for borrowing is a mere few hundred thousand titles, a minute

>> percentage of the world's books. In contrast, the HDL contains more than

>> ten million accessible volumes.” J.A. 173 ¶ 10 (Maurer Decl.). When

>> considering the 1976 Act, Congress was well aware of this problem. The

>> House Committee Report observed that publishers did not “usually ma[ke]”

>> their books available in specialized formats for the blind. H.R. REP.

>> NO. 94–1476, at 73, 1976 U.S.C.C.A.N. at 5686. That observation remains

>> true today.

>>

>>

>> Best,

>> Brandon

>>

>> On Jan 17, 2020, at 11:20 AM, Susan Kelmer <Susan.Kelmer at colorado.edu>

>> wrote:

>>

>> I have read the white paper.  It made some interesting points, but it has

>> not convinced me, or my legal counsel, that we should be giving away files

>> to students who have not obtained some form of the book – new, used,

>> rental, digital download (aka Kindle/Nook), etc.

>>

>> If it was found out by non-disabled students that disabled students were

>> getting their textbook materials for free, we would have an absolute RIOT

>> on our hands, and it’s not a riot I want a part of.

>>

>> Also, I am an author.  It pains me GREATLY to think that books that are

>> written using blood, sweat, tears, AND MY TIME are just blithely given away

>> to those with a disability, with no guilt or even thought to what that

>> means.  Authors are people too, and they are not writing for grins and

>> giggles – they are writing because it is how they make their living.

>>

>> Giving away files is no different in my mind than illegal file sharing of

>> music, movies, etc.  In fact, it IS illegal in my mind, as it brashly

>> abuses copyright of the authors who are writing the books in the first

>> place.

>>

>> We are going to have to agree to disagree on this issue.  I’ve been doing

>> this work for 20 years and not one single time have I felt it was

>> appropriate to give files to students without proof of ownership/possession

>> (note I did not say proof of purchase).

>>

>> *Susan Kelmer *

>> Alternate Format Production Program Manager

>> Disability Services

>> Division of Student Affairs

>> *T* 303 735 4836

>> *www.colorado.edu/disabilityservices

>> <http://www.colorado.edu/disabilityservices>*

>>

>>

>> <image001.png>

>>

>> *Due to the nature of electronic communication, the security of this

>> message cannot be guaranteed. If you’ve received this email in error please

>> notify the sender immediately and delete this message. *

>>

>>

>>

>>

>>

>>

>> *From:* athen-list <athen-list-bounces at mailman12.u.washington.edu> *On

>> Behalf Of *Butler, Brandon (bcb4y)

>> *Sent:* Friday, January 17, 2020 9:09 AM

>> *To:* Access Technology Higher Education Network <

>> athen-list at u.washington.edu>

>> *Subject:* Re: [Athen] Alternate Formats and Varying Editions of

>> Textbooks

>>

>> 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.

>>

>> Best,

>> Brandon

>>

>>

>>

>>

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

>> wrote:

>>

>> Mary,

>>

>> 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

>> *www.colorado.edu/disabilityservices

>> <http://www.colorado.edu/disabilityservices>*

>>

>>

>> <image001.png>

>>

>> *Due to the nature of electronic communication, the security of this

>> message cannot be guaranteed. If you’ve received this email in error please

>> notify the sender immediately and delete this message. *

>>

>>

>>

>> *From:* athen-list <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

>> *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

>>

>> *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

>> URL: http://www.pdx.edu/drc

>> Pronouns: she / her / hers

>>

>>

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