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Poison Pill for Government Web-Site Archivists?

What would happen if projects such as the California Digital Library’s project to preserve online government materials were stifled by copyright law?

The CDL project and similar ones could be endangered by aggressive enforcement of copyright law because many government web sites contain copyrighted material.

Now that the Internet Archive is being sued by a healthcare company that says the Internet Archive illegally stored copies of copyrighted materials (Keeper of Expired Web Pages Is Sued Because Archive Was Used in Another Suit By TOM ZELLER Jr. New York Times, July 13, 2005) we cannot help but wonder if similar copyright infringement suits will hurt efforts to preserve government web sites.

William Patry noted that such suits “would encourage good government archivists like the Internet Archive not to use voluntary measures on pain of a DMCA violation” (The Way Back Machine and Robots.txt by William Patry, July 12, 2005, The Patry Copyright Blog.

Laws in other countries only reinforce this trend. See In Canada: Cache a page, go to jail? By Elinor Mills, CNET News.com, July 19, 2005.

How much copyrighted material is on .gov web sites? It is difficult to tell, because most federal government web sites have vague, negative disclaimers such as, “Not all images are in the public domain; some images may be protected by the U.S. Copyright Law” (Biographical Directory of the U.S. Congress). The Jefferson National Expansion Memorial contains an almost 300 word copyright statement that says, in part, “Some materials in the JNEM Library & Archives may be protected by the U.S. Copyright Law.” The U.S. Department of Agriculture Agricultural Research Service claims copyright on its documents but, at least for now, grants permission to use them. The National Institute of Mental Health says that the public may reproduce without permission information from the National Institute of Mental Health Web site, “except for documents that state another copyright policy applies to them.” Most sites explicitly say that it is up to the user to figure out what is copyrighted and what is not. The National Gallery of Art, while allowing “personal, educational, non-commercial use” of materials on its site, also says that “The contents of this site may not be reproduced in any form without the permission of the National Gallery of Art.”

Perhaps a view of things to come is the way the Census Bureau deals with copyrighted information in the County and City Data Book. There, you will find this footnote that says that the Bureau simply does not make certain data available at all on the Internet or even on CD-ROM: “** DATA NOT AVAILABLE FOR INTERNET OR CDROM; COPYRIGHT PERMISSION FOR PUBLICATION ONLY.”