February 17, 2018

Access Should Be Blind | Editorial

Looking with Mingus and the print impaired

Not too long ago I was driving through Vermont on a rainy day. The countryside was saturated with green, and the hilltops punctuated the clouds. I struggled, in my obtuse way, to operate the windshield wipers in my rental car, and the radio was a challenge, too.

A Charles Mingus composition finally came on, “Goodbye Pork Pie Hat.” The landscape was dreary and the music elegiac, but a bemusing alchemy began to occur as I drove. Mingus’s music not only coincided with the land, it penetrated and transformed it. Mingus’s genius had inspirited what had been natural beauty only with an aesthetic and moral poignancy.

This is what happens when the brilliant members of minority groups have the same intellectual and artistic freedom as other geniuses. They enlarge how we all think and see, no matter how incongruous the circumstance.

For years, those disenfranchised from such intellectual freedom have included the blind and the print disabled. They have been denied full opportunity and meaningful access to the collective knowledge housed in libraries, no matter how diligent or curious they may be. Similar to Richard Wright, as he relates in Black Boy, barriers—erected by libraries or other forces—challenged their incipient sensibility and rendered uneasy their research.

The Authors Guild’s recent attempt to impound the print collection scans from the HathiTrust would have only further hampered these disenchanted minds.

Daniel Goldstein, of the Brown Goldstein Levy law firm in Baltimore, Md., represented the National Federation of the Blind (NFB) in the Authors Guild, Inc., et al.,v. HathiTrust, et al. case, which Judge Harold Baer decided on October 10. Speaking at the New York Law School on October 26, Goldstein described the HathiTrust victory as an “extraordinary milestone” with “huge implications” since it gives full access to the content of the HathiTrust scans at the University of Michigan to those with print disabilities.

Goldstein, in an oral argument that Baer called eloquent, described the efforts of the HathiTrust as “the single largest endeavor in history to make print materials accessible to the blind…. Blind members of these university communities would have the opportunity to access more than nine million works, rather than being largely restricted to the tiny body of books that have been printed in Braille or digitized piecemeal for use by the blind.”

In ruling against the Authors Guild, Baer wrote, “Academic participation by print-disabled students has been revolutionized by the [HathiTrust Digital Library].”

It’s not often a sober-minded jurist uses a word like revolutionized, but he’s not alone. Marc Maurer, president of the NFB, said, “Access to the printed word has historically been one of the greatest challenges faced by the blind. The landmark decision by the United States District Court for the Southern District of New York will revolutionize access to books for the blind. For the first time ever, blind students and scholars will have the opportunity to participate equally in library research. The blind, just like the sighted, will have a world of education and information at their fingertips.”

Most significant, Judge Baer concluded that the Americans with Disabilities Act “requires that libraries of educational institutions have a primary mission [italics added] to reproduce and distribute their collections to print-disabled individuals, making each library a potential ‘authorized entity’ under Section 121 of the Copyright Act (the ‘Chafee Amendment’).”

Maurer said as a result that the University of Michigan will now be permitted to make its entire ten million–volume digital collection available to all blind and print-disabled Americans.

“So, for those of you who are associated with libraries, understand the blind are going to come knocking at your door and say we want to read all this,” Goldstein said at the conference organized by James Grimmelmann, a law professor at New York Law School. And that is only the beginning. Combine this with the push to get all libraries to provide accessible ereaders, such as the recent case the NFB settled with the Free Library of Philadelphia, then the knocking is only going to get louder.

The blind are going to add much more of their genius, their jazz, to our world, and the rest of us will never see the landscape in quite the same way again.

Michael Kelley, Editor-in-Chief

This article was published in Library Journal. Subscribe today and save up to 35% off the regular subscription rate.

Michael Kelley About Michael Kelley

Michael Kelley (mkelley@mediasourceinc.com) is the former Editor-in-Chief, Library Journal.

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  1. “Sober-minded jurist”? — you must then know him personally. BTW the ‘conference’ was hosted by Professor James Grimmelman of the NYLS — not NYU Law School … and the 30 day appeal window on the 10 OCT 2012 Opinion & Order is still open (as of your editorial date 7 NOV 2012) for a few more days.

    • Michael Kelley Michael Kelley says:

      i’ll stand by the “sober-minded” and “conference” but made the other tweaks/fixes. thanks

  2. In Section 107of the Copyright Act it states:

    “In determining whether the use made of a work in any particular case is a fair use …”

    The O&O now introduces the notion not just of the ‘use’ itself but of ‘who’ might make a particular fair use.

    … And on such a thread might begin the unraveling … a few more days will tell.

  3. So the appeal notice is in.

    To the 4 factors in considering a particular case of Section 107 ‘Fair Use’ exemption to Section 106, Judge HB has added in his O&O a 5th: Just who is making the claim and under what (if any) binding obligation?

  4. If you look at the legislative history of the 1996 Senate Amendment 5119 to the H.R.3754 FY 1997 Appropriations Bill (which became the US Copyright Act Section 121 ‘Chafee Amendment’) you will find the following:

    7/29/1996: Proposed by Senator Chafee.
    7/30/1996: Considered by Senate.
    7/30/1996: Amendment SP 5119 agreed to in Senate by Voice Vote.

    Also noted is that the Amendment introduced by the late Senator Chafee included a bi-partisan
    group of 9 Senate co-sponsors including the current Senate Judiciary Chairman Senator Patrick Leahy of Vermont.

    During Senate Chafee’s 1996 Senate Floor remarks he said and DID NOT say the following:

    Senator Chafee said of the term Authorized Entity: “It includes a very narrow definition of those who are eligible to undertake such production”; he did not say that it ‘potentially’ includes every library or school in the country if they were to so choose.

    Senator Chafee said that a ‘specialized format’ should be ‘exclusively’ for the use of persons who are are blind or otherwise print disabled; he did not say that that such exclusivity should be the function of security measures including as passwords, encryption, watermarking, detailed download records, etc.

    Senator Chafee was a co-sponsor of the 1990 “Americans with Disabilities Act” or ADA; in his 1996 floor remarks he in no way mentioned that there were any requirements of the ADA that were being effectuated by the enactment of his (Section 121) Amendment.

    Senator Chafee commented in his floor remarks that even the National Library Service (NLS) of the Library of Congress was — as of 1996 — still required to request permission from publishers before the NLS could make a Braille or phonorecord rendition of copyrighted material; he in no way mentioned or indicated that, prior to 1996, there could be any Section 107 Fair Use provisions of the 1976 Copyright Act that might obviate such permission requests.

    As noted above, the Chafee Amendment was approved as an Amendment to the Appropriations Bill by a Voice Vote in the Senate. Had the late Senator made remarks that were more in conformance with the recent O&O and judgment in the Authors Guild v HathiTrust, that might not have been the case.

  5. Regarding the comments as published above in Library Journal last year, from the Document 75 Amicus filing 4MAR2013 by the Association of American Publishers / AAP (page 3)

    — Additionally, the district court’s construction of Section 121 without reference to its legislative history resulted in judicial legislating based on an erroneous application of the Americans with Disabilities Act to the Chafee Amendment, by treating university libraries as “authorized entities” contrary to clear legislative intent. The district court’s holding acts as a disincentive for AAP’s members to create new digital products to address the needs of the print disabled.

    And from Document 54 Brief filed 25FEB2013 by The Authors Guild regarding fair use and The Chafee Amendment (Page 51):

    — Plainly this provision would not have been necessary if fair use permitted these acts without permission.