Osep And Chafee Amendment

Date: Thu, Oct 22, 2009 at 2:26 AM

Subject: Interpretation of 'Specialized Formats' under IDEA and NIMAS Regulations To: Project Director, OSEP , Chief of Staff, Office of the General Counsel, US Department of Education Re: 34 CFR 300.172(a)(1)(iii) & IDEA 674(e)(3)(D) I have decided to take your advice and have registered with American Printing House (APH) as an Accessible Media Provider (AMP) as I am a US Library of Congress Certified Braille Transcriber. I am very concerned, as, in a detailed reading of both the written and oral testimony at the SCCR Copyright Office hearings in May, 2009, it is clear that persons such as Dr. Kerscher of DAISY, Marc Maurer of the NFB, and Allan Adler, Esq. of the AAP are uncertain as to whether DAISY is a 'Specialized Format' as defined under your Re-Authorized Statutes. If even those persons mentioned above cannot make any emphatic statement as to DAISY's status as a 'Specialized Format', knowing full well that they feel DAISY OUGHT to be so included, how is someone like an AMP or a small Authorized Entity around the country, participating in the preparation of NIMAS based materials, supposed to make such a determination as to whether they are in infringement of Copyright? Even (Director) of NIMAS/CAST wrote to me personally in 2007: "An exact definition of “digital text” in the context of the Chafee copyright exemption has yet to be determined." DAISY was in existence when the Chafee Amendment was drafted in 1996 and certainly when the re-Authorized Statutes were written in 2004, yet in neither case was DAISY specifically mentioned as was Braille. Part of the confusion is that the ANSI/NISO standards themselves for DTB/DAISY specifically state that DAISY is not exclusively designed for or intended exclusively for persons who are "Blind or other persons with disabilities." On September 19, you wrote to me via email:

LOC interpretation. On Tuesday I talked with you about the interpretation the LOC sent in response to your questions. The Education (ED) general counsel does not interpret the statutes of other Federal agencies. They advise ED program staff, who manage projects as I do, as to a project’s legal sufficiency under IDEA (Individuals With Disabilities Education Act) and their adherence to ED policies and procedures when program staff request this input...

As the general Counsel does not interpret the statutes of other agencies, I suppose he does interpret the statutes of your agency namely those under 34CFR300 when so requested. So, I would request that you request of the General Counsel an interpretation of

34CFR300.172(a)(1)(iii) as to whether 'Specialized Formats' does in fact include the DAISY format protocol which is further defined under the Copyright Act Section 121(d)(4)(A) as "Braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities;"

[34 CFR 300.172(a)(1)(iii)] [20 U.S.C. 1474(e)(3)(B)] “Specialized formats” has the meaning given that term in section 674(e)(3)(D) of the Act (“Specialized formats” means Braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities; and with respect to print instructional materials, includes large print formats when such materials are distributed exclusively for use by blind or other persons with disabilities).

An official position expressed by your General Counsel would go a long way to indemnify any NIMAS Authorized entities and other participants, who in some cases have received extensive Federal Funds and Grants, if they were challenged by any copyright owner. Without such an interpretation by the General counsel, they may be putting themselves at risk on a daily basis for infringement of Copyright. I feel this is an obligation on your Department as the specific copyright exemption authorization for NIMAS is under: Section 121(c): Notwithstanding the provisions of section 106, it is not an infringement of copyright for a publisher of print instructional materials for use in elementary or secondary schools to create and distribute to the National Instructional Materials Access Center copies of the electronic files described in sections 612(a)(23)(C), 613(a)(6), and section 674(e) of the Individuals with Disabilities Education Act (IDEA) that contain the contents of print instructional materials using the National Instructional Material Accessibility Standard (as defined in section 674(e)(3) of that Act), if (1) the inclusion of the contents of such print instructional materials is required by any State educational agency or local educational agency; (2) the publisher had the right to publish such print instructional materials in print formats; and (3) such copies are used solely for reproduction or distribution of the contents of such print instructional materials in specialized formats. As materials are in fact being reproduced and distribute on a daily and ongoing basis, and based on the testimony at the LOC SCCR hearings that DAISY's inclusion as a Specialized Format has never been interpreted by any competent authority -- judicial or legislative -- or in any venue in writing, and that the 34CFR300.172(a)(1)(iii) clause comes clearly under the purview of the Department of Education (IDEA), and, should someone challenge that DAISY is NOT so

considered a Specialized Format, many Authorized Entities and AMPs might be at risk for infringement of Copyright, I would consider this to be a matter of great urgency for you and your General Counsel and potentially your Office of Hearings and Appeals (OHA) OALJ. Thank you. JEM ******************************************************* Date: Fri, Oct 30, 2009 at 7:53 AM

Re: 34 CFR 300.172(a)(1)(iii) & IDEA 674(e)(3)(D) (Sent to Manager, OSEP Programs, US Dept. of Education and, Chief of Staff, Office of the General Counsel, US Department of Education)

My October 21 Memo Interpretation of 'Specialized Formats' under IDEA and NIMAS Regulations has received neither reply nor acknowledgment from yourself nor any of those copied including (Chief of Staff) of the Office of the General Counsel. I obviously cannot know the exact reason for this. However, the simplest explanation, and one that any reader of that memo might infer, is that your General Counsel cannot in good faith and with any credibility make the determination that DAISY complies with the definition of ‘Specialized Format’ under your department's 34CFR300 specifications. It could be further inferred that any and all reproduction and distribution of copyrighted materials in DAISY format from the NIMAC by an Authorized Entity or AMP is in fact an instance of copyright infringement. Bookshare.org currently claims that nearly 5000 NIMAC textbooks are available in DAISY format and each book may have then been ‘further distributed’ multiple times each instance of which also might be an infringement... in fact all DAISY reproductions of copyrighted materials made by Bookshare.org may be infringement except those books where they have received permissions directly from the Publisher. In AAP's General Counsel, Allan Adler, Esq.'s, 2004 Memo to the New York State Board of Education -- where he explained why the words 'primary mission' disqualified State and Local Boards of Education and University Disability Service departments as 'Authorized Entities' -- he described the Chafee Amendment language as 'closely-negotiated and "crafted with the intention of..." a specific purpose. Therefore, it seems that the word 'exclusively' in Section 121(d)(4)(A) may have also been carefully crafted and the words primarily, mainly, or 'effectively' could have been but were not so chosen.

www.ahead.org/uploads/etext/Copyright%20Issues.doc The late Senator Chafee's actual remarks on the Senate floor during the Section 121 Bill's introduction, which, as Counselor Adler has written, are the primary source of Legislative intent, also support this notion:

Specialized formats refers to braille, sound recordings--either on cassette or phonorecord--and new digital formats that can be used for special software. To make certain that recorded books and magazines are only used by those for whom they are intended, they are recorded at a speed that simply does not work on standard tape players... The National Library Service provides special tape players and record players to eligible individuals. This equipment is not generally available to the public. http://www.nfbcal.org/nfb-rd/1102.html And as I mentioned before, DAISY was in existence when Senator Chafee made those remarks in 1996...and DAISY players are readily available to the public on eBay or Amazon. I do not own any copyrighted materials that might potentially have been infringed and I certainly do not possess, as we have discussed, the resources to hire Intellectual Property Attorneys. However, I can assure you, these memos are already in the hands of persons out there that do so own and do possess those resources which they have shown no hesitation to deploy when deemed necessary to protect those rights that may have been infringed. Thank you, JEM