[blindlaw] Accessible legislation/law beyond 17 U.S.C. § 121

Fri Feb 6 20:35:07 UTC 2009

Hello,
What you have presented is your interpretation of what common sense tells 
you the statute must mean.  Unfortunately, with statutes, we are stuck with 
the exact language of the statute, and court opinions which have interpreted 
the meaning of the statute. As a lawyer you could make this argument to a 
court, but the reality is that the statute does not specifically say what 
you are reading into it.  Consequently, you would need to find a federal 
court opinion which presents your view, and I am not aware of one which 
does.

The Chafee amendment specifies that only nonprofit entities that produce 
books in alternative formats for the blind may distribute them.  It does not 
say that a blind person who has received a copyrighted work in an 
alternative format from an authorized entity, may himself distribute his 
copy to anyone else who is also blind, even when he does not retain any 
copies.  This argument suggests that a slight twist on the first sale 
doctrine is present in the Chafee amendment, but I am not aware of any 
source to support this idea.  The first sale doctrine is what permits you to 
resell or give away a patented or copyrighted product which you purchased. 
Without the first sale doctrine, you would never be able to resell a 
copyrighted or patented product which you legitimately purchased, because 
selling a copyrighted or patented product when you do not own the 
intellectual property rights is the very definition of infringement.

My legal advice based on a strict reading of the Chafee amendment to a 
client who wishes to give a Braille book produced by a nonprofit entity, is 
that they should return the Braille book to the nonprofit entity which 
originally produced it, along with instructions to ship the Braille book to 
the other blind party.  The reason for the nonprofit to be the decider of 
who should receive books in alternative formats, is that they have 
established procedures in place to determine who is actually blind or 
reading disabled, and therefore authorized to receive materials in 
alternative formats.

The blind owner of the book we are discussing has no medical documentation 
to know for a fact that the party he is giving the Braille book to is 
actually reading disabled.  The recipient for example could be sighted, and 
then scan the Braille book into a computer using software which will convert 
grade 2 Braille into an electronic file, and then use that file to print out 
illegal copies of the copyrighted work in print.  Seems like a lot of work, 
but it could be done, and this is what the law is attempting to prevent.

Moreover, if the Chafee amendment permits us to redistribute books in 
alternative formats for use by the blind so long as we do not retain a copy 
for ourselves, we could redistribute Bookshare and RFB books without 
violating the copyright act.  We would of course be violating our membership 
agreement with Bookshare and RFB, but that is a question of contract law, 
not copyright law.  Clearly Bookshare and RFB believe this would violate the 
Chafee amendment and that is why their membership agreement prohibits us 
from giving copies of books obtained from them to other   blind people.

Copyright law presents interesting questions.

Regards,
Dennis

----- Original Message ----- 
From: <chatter8712 at gmail.com>
To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>
Sent: Friday, February 06, 2009 7:49 AM
Subject: Re: [blindlaw]Accessible legislation/law beyond 17 U.S.C. § 121

I think that the main point in this, like all copyright cases, is
complete relinquishment of the material. If you give the modified
materialto another student and relinquish your right to the material
(you don't keep any copy, digital or otherwise) it's completely legal.
Same as if I sold a CD I had not ripped to someone else.

On 2/6/09, Dennis Clark <dennisgclark at sbcglobal.net> wrote:
> Hello,
> Does this mean that I can not give my Braille calculus book to another
> student, or sell it to him for the same price I paid for the thermoforming
> of the book?  A strict reading of the Chafee amendment would appear to
> prohibit this.  The NFB is setting up a website to assist us in
> redistributing our Braille books to others.  Should we worry about 
> copyright
> infringement?
> Dennis
>
> ----- Original Message -----
> From: "James Pepper" <b75205 at gmail.com>
> To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>
> Sent: Thursday, February 05, 2009 9:57 PM
> Subject: Re: [blindlaw]Accessible legislation/law beyond 17 U.S.C. § 121
>
>
> Here is the law:
> (a) Notwithstanding the provisions of section
> 106<http://www.law.cornell.edu/uscode/uscode17/usc_sec_17_00000106----000-.html>,
> it is not an infringement of copyright for an authorized entity to 
> reproduce
> or to distribute copies or phonorecords of a previously published,
> nondramatic literary work if such copies or phonorecords are reproduced or
> distributed in specialized formats exclusively for use by blind or other
> persons with disabilities.
> (b) (1) Copies or phonorecords to which this section applies shall— (A) 
> not
> be reproduced or distributed in a format other than a specialized format
> exclusively for use by blind or other persons with disabilities;
> (B) bear a notice that any further reproduction or distribution in a 
> format
> other than a specialized format is an infringement; and
> (C) include a copyright notice identifying the copyright owner and the 
> date
> of the original publication.
> (2) The provisions of this subsection shall not apply to standardized,
> secure, or norm-referenced tests and related testing material, or to
> computer programs, except the portions thereof that are in conventional
> human language (including descriptions of pictorial works) and displayed 
> to
> users in the ordinary course of using the computer programs.
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-- 
-Shane
Website: http://www.blind-geek.com
AIM: inhaddict
MSN: shane at blind-geek.com
Skype: chatter8712
Twitter: blind_geek

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