A Lesson in Gamesmanship

A young student constantly uses our library's computers to download games off the Internet onto his own disks. He's now offered to do the same for his friends, if they supply the disks. Is this legal?

--Ann Scott, young adult librarian, Homewood (AL) Public Library

If the creators of the Internet games allow people to download their games, this is perfectly legal. The creators may encourage young people to download games in order to build a customer base and create interest in their games. I remember when many online databases would allow free downloading. Now, many of them charge for the same service. The game creators may choose to charge in the future for added features or new editions of the game.

On the other hand, if a student is somehow bypassing encryption or other technological barriers that protect the game from being downloaded, he is probably infringing copyright because he is making copies without the permission of the copyright holder.

So, what do you do? Usually, you will not know if the use is legal unless you ask the student—or spy on what he is doing. Librarians are not responsible for tracking the Internet activities of their users to look for potential copyright infringements. We shouldn't want that responsibility because it goes against our professional standards. We respect our users' privacy, and our libraries should be "neutral," safe areas where our clientele can feel free to access information, even games. Of course, librarians cannot turn their backs on obvious illegal activities and should report such activities to the proper authorities. We also have a role in teaching our users about copyright, plagiarism, and "information-use ethics."

When students come into the library to download games off the Internet, it can be annoying. One way for librarians to gain a bit of control is to establish a computer-use policy. Many libraries have established time limits for recreational computer use. For example, "No more than 10 minutes for e-mail." It's up to you and your institution to determine the library's computer policy. Whatever you decide to do, keep in mind how you will enforce the policy in ways that won't exhaust all of your time and resources. Perhaps posting a sign listing "computer-use rules" will do the trick.

Our ESL program uses bilingual books, but many desirable titles aren't available in bilingual editions. Is it legal for instructional purposes to photocopy the text of an English language book and paste it above the corresponding text in a Spanish version? Since a bilingual version of the title doesn't exist and our library owns both the Spanish and English language editions, our copying wouldn't have an effect on the market.

-- Kay Myers, library media specialist, Claremont (OK) Elementary School

We need to consider the four factors of fair use. Clearly, there is no effect on the market since a bilingual version is not available. Also, the materials will be used for nonprofit, educational purposes. The other two fair-use factors, the amount of the publication copied and the type of material used, are more difficult to figure out without more facts. We do not know, for example, how much of the book is being photocopied and if the material is highly creative in nature, and thus deserving of "more" copyright protection. What we do know leans toward a fair-use determination.

What about physically altering the Spanish version? Is this a problem? The first sale doctrine (Section 109) is a limitation of the exclusive right of distribution. It says that an owner of a lawfully produced and acquired work has the right to dispose of that copy, or sell or loan it. The owner can also write in his own copy or cut out sections. So, if you own the English and Spanish versions, you can cut and paste pieces. However, by manipulating the copies, one might argue that the librarian has created a derivative work, one of the exclusive rights of copyright. That said, I think this is still an example of fair use.

This is an usual situation. If an ESL teacher wants to use the same title next year, I'd recommend conducting a new search to see if a bilingual version has recently been published. It's always best to purchase a bilingual edition.