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The Librarian of Congress has just released the most recent round of exemptions to the anti-circumvention provision of the Digital Millennium Copyright Act. During prior rulemaking rounds, the Librarian has carved out exceptions for the use of clips from DVDs for educational purposes, initially by film studies professors only but then expanded to faculty from any discipline. In this most recent round of rulemaking, the Librarian has recognized an exemption “where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances: (i) in noncommercial videos; (ii) in documentary films; (iii) in nonfiction multimedia ebooks offering film analysis; and (iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts, by college and university faculty, college and university students, and kindergarten through twelfth grade educators.” The Librarian clarified, however, that the exemptions do not apply to the use of motion picture excerpts in fictional films, as the Register of Copyrights was unable to conclude that such use is noninfringing. In the Notice, the Librarian explains:
[The Register of Copyright] noted that such uses fall within the favored purposes referenced in the preamble of Section 107 and, especially in light of the brevity of the excerpts used, are likely to be fair uses. More specifically, the Register determined that the proposed uses tended to be transformative in nature, employing short clips for purposes of criticism, comment, teaching, and/or scholarship, rather than for the works’ originally intended purpose. Despite thecommercial aspect of uses by documentary filmmakers and multimedia ebook authors, the Register noted that when a short excerpt of a motion picture is used for purposes of criticism and comment, even in a commercial context, it may well be a productive use that serves the essential function of fair use as a free speech safeguard. While the Register did not conclude that a court would find each and every one of proponents’ examples to be transformative, she did find that
the record amply supported the conclusion that a substantial number of the proffered examples likely would be considered transformative fair uses.
The Librarian further noted that the Register found no merit to opponents contention that licensing or screen capture technology should be utilized to accomplish the desired uses. Requiring licensing for the use of clips for the stated purposes would be contrary to judicial precedence of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) that such transformative uses were fair uses of copyrighted works.
Four years since the filing, one year since the trial, and 350 pages of opinion later…we have an opinion in the closely watched copyright infringement action against Georgia State University. The case pitted prolific academic publishers Sage, Cambridge and Oxford against the GSU provost, Library Dean and others, with the publishers claiming that the policy and practice of GSU’s Library allowed faculty to post, in violation of the publishers’ copyrights, scans of book chapters in the University’s e-reserve and course management systems. In response, GSU contended that its actions fell within the Fair Use provision of the Copyright Act, which the publishers contended that the postings, in the absence of permission or payment of license fees, far exceeded the bounds of fair use, which they argued were defined by outdated guidelines. In the end, the judge found largely in favor of GSU, and in doing so, she crafted a fair use framework (although for the time-being is only legally binding upon persons living in the Northern District of Georgia) that libraries and publishers alike will be analyzing and implementing in the months to come.
The Fair Use Framework of the GSU Case
Under §107 of the Copyright Act, a use of a copyrighted work without permission of the copyright holder is permissible when such use is for the purposes of teaching, research, commentary, news reporting, parody, or criticism, and the balance of four enumerated factors weighs in favor of a finding of fair use. Those four factors as set forth in the statute are: (1) the purpose and nature of the use, (2) the nature of the copyrighted work being used, (3) the quantity of the copyright work being used, and (4) the effect of the use upon the potential market. The application of these four factors to the posting of copyrighted works to electronic reserves systems has long been the subject of scholarly debate; however, this case is the first time that a court has undertaken to apply the fair use factors to such use. The judge’s application of the fair use factors in the context of e-reserves can be summarized as follows:
Purpose and Nature of Use – Because a college or university’s library is a non-profit and educational user, the court found that this factor weighed heavily in favor of a finding of fair use.
Nature of the Copyrighted Work: Because the works at issue in the case were all scholarly, non-fiction works (and many of them reference-type handbooks), the court found that this factor also weighed in favor of a finding fair use.
Quantity of the Copyrighted Work Being Used: Most of the excerpts posted in GSU’s course reserves were 10% or less of the book. The court held that this factor weighs in favor of fair use where no more than 10% of a work with less than 10 chapters or no more than one single chapter in works of more than 10 chapters is used. In amounts greater than this, this factor weighs in favor of the copyright holders. The court also reiterated that where the portion used represents the “heart of the work,” the balance tips in favor of the copyright holder.
Effect Upon the Potential Market for the Work – Where there is a reasonably priced and readily available license for a digital excerpt of the copyrighted work, this factor tips in favor of the copyright holder. This factor also weighs in favor of the copyright holder where the amount used is so great that it substitutes purchase of the entire work.
Answers, Yes, but Also More Questions
Through her careful reasoning and explanation, the judge in the GSU case answered many questions that have been pondered by copyright scholars and academic library practitioners. In particular, she held:
– The posting of copyrighted works in an electronic reserve or course management system is not analogous to the production of print course packs by a copy shop or other commercial entity. Thus, many points in the Kinkos case are not applicable to e-reserves.
– The posting of copyrighted materials in an e-reserve system is not a transformative use. In recent years, a finding of transformativeness has been key to deciding fair use cases.
– The 1976 Classroom Photocopying Guidelines are too restrictive and thus inconsistent with fair use. Further, the judge expressly rejected the “subsequent semester” rule that is an outgrowth of the Classroom Guidelines. Thus, use of the same excerpts for a course from one semester to the next does not mitigate against a finding of fair use.
– No or minimal use can mean no infringement. Where items posted to course reserves are never accessed by students, there is no infringement.
– When calculating the number of pages in a work (for purposes of determining what constitutes 10%), the entire work is counted, including the table of contents, foreword, and index pages.
However, the decision also left scholars and librarians with more questions to ponder:
– What about journal articles, images, videos, etc? The decision in GSU only dealt with monographs; however, many faculty utilize these other categories of works in their courses and request their institution’s library to post these materials in the course reserve system.
– What constitutes a “readily available and reasonably priced” license? And, if the copyright holder does not have a license or permission system available for the work or its excerpts, does this mean its fair use to use it anyway? In the wake of this decision, more publishers will likely either contract with Copyright Clearance Center or invest in devising their own license and permission systems. Does this mean libraries will end up paying more for less?
It will be interesting to see what answers folks on all sides off these issues will propose in the weeks to come and what the next moves of the publishers and their litigation funders will be in response to the judgment.
With classes back in session at most American universities and colleges, students may be looking for note taking or studying shortcuts to ease them through the semester. The sharing of course notes, lecture recordings, and exam copies has become more than a friendly gesture by former students; it has become a growing commercial enterprise by brick and mortar and online entities. A couple years ago the web site Course Hero began to attract scrutiny from teachers and administrators when it offered to students a monthly subscription to access its vast repository of uploaded course materials (or earn credits for access in exchange for uploading their own materials). Secondary to the concerns of academic integrity was the concern that the intellectual property rights of professors had been violated. Many educators are concerned that their original and creative work product, such as stylized lecture slides, detailed course handouts, and well-prepared syllabi, are being made available without their knowledge or permission. Course Hero, by its own admission, does not police content uploaded to its site. Rather it relies, much like You Tube, upon the vigilance of copyright holders to file with the company a take-down request pursuant to the Digital Millennium Copyright Act. To help counter the problem, universities have adopted policies prohibiting students from sharing course materials or have devised informational sites for faculty to assist them in locating infringing downloads and requesting take-down.
To date, no litigation has arose as a result of Course Hero or sites like it. However, a copyright infringement action is pending in a Florida district court concerning the sharing of course information and may answer the question of whether sharing of course materials actually qualifies as fair use. The lawsuit was filed after the lecture outlines and film study questions prepared by a University of Florida professor were copied and packeted for resale by a local copy shop. The professor had transferred his copyrights in the materials to a publisher, who filed the infringement action. This past June, the district court ruled on the cross motions for summary judgment. Recognizing that the text materials were protected by copyright, the district court denied the plaintiff’s motion for summary judgment on the infringement claims on the ground that questions of fact for a jury existed as to whether the copying constituted fair use. The court wrote:
Works that are original, fictional, and unpublished enjoy more protection than works that are derivative, factual, and published. [The] works as a whole are derivative, factual, and published. Furthermore, his film study questions and practice questions are factual compilations. Copyright protection extends only to the selection and arrangement, not to the underlying facts themselves, and “[t]his inevitably means that the copyright in a factual compilation is thin.” Feist. 499 U.S. at 349…Other factors in determining fair use include the purpose and character of the use, the amount and substantiality of the portion used, and the effect of the use on the market or value of the copyrighted work. 17 U.S.C. § 107. The parties have presented various arguments for and against a finding of fair use. Genuine issues of material fact remain for a jury to determine regarding fair use.
The outcome of this case, much like the outcome in the Georgia State e-reserves lawsuit, has the potential to greatly impact our understanding and application of fair use. It will also impact the validity of sites like Course Hero and any other entity profiting from the sharing of course materials. (Note – the work for hire doctrine is not at issue in this case, even though a university as employer could claim copyright ownership in course materials because the university in the case had already disclaimed any interest in these materials.)
I have asked my university’s library to purchase a film that I intend to show and discuss in my class. The company selling the DVD indicates that the library must purchase the more expensive “college/university” copy so that public performance rights are secured. Is showing a film in my class a public performance?
Any librarian who has worked in acquisitions or who has been a selector for their institution’s library has encountered the ethical dilemma of whether to purchase the institutional copy of a DVD. Most distributors of documentary films will list in their catalogs or on their web sites tiered pricing for individuals, public libraries, primary and secondary schools, and colleges or universities. An explanation typically accompanies the pricing scheme that the higher price charged to the various institutions accounts for the inclusion of a public performance license. Most college or university libraries, without question or challenge, pay the higher price – and often the only group viewing of the film occurs in class. So, must the library pay the public performance license price if the only intended viewing of the film is by patrons in private viewing session (even if in the library) or in the physical classroom by a class and its instructor during a regular class session? The answer is: No.
Nothing in the Copyright Act prohibits a library from purchasing DVDs (even those labeled for Home Viewing Only, as is often the case with Hollywood-produced films released on DVD) and lending or renting them to their patrons for personal viewing. Further, under § 110(1) of the Act, educators are permitted to perform or display audiovisual works in a physical classroom setting as part of instructional activities. Thus, purchase of a public performance license is not required for DVDs purchased for and used for these purposes. A public performance license is necessary, however, when a DVD in a library’s collection is going to be screened in a public location on campus by a club or other group or if the library itself is going to show the film. Only if the library knows when purchasing the DVD that these latter uses are intended should it feel compelled to pay the higher price charged. Otherwise, a college or university library is not in violation of copyright law, and shouldn’t be threatened into paying the higher purchase price,when acquiring a DVD without a public performance license for its collection.
(A special thanks to my former Graduate Assistant (who is also a lawyer and now an academic librarian) for inspiring this edition of Scholasticus.)
Three years in the making, the trial against Georgia State University (GSU) for their e-reserves practices begins tomorrow. The course for trial was set at the end of September when the federal judge presiding over the case ruled on the motions for summary judgment filed by the publishers and GSU officials, allowing the case to go forward solely on the claim of contributory infringement. (For a detailed explanation of those motions please read “Georgia (State University) on My Mind.”) However, in December 2010, the court granted the publishers’ motion for reconsideration and permitted them to proceed on the claim of direct infringement, now understood and correctly labeled as a claim of “indirect infringement.”
In the weeks and days leading up to trial, both sides filed the usual and customary motions concerning evidence and other pre-trial matters. But the most noteworthy, and somewhat nerve-wracking, pre-trial filing came from the publishers in the form of a proposed order to be signed by the judge in the event they win their case. The publishers do not seek monetary damages as the remedy for the alleged infringement; rather, they seek to enjoin GSU (and inevitably all academic libraries, college students, and faculty) from continuing to access copyrighted materials through secure digital means without permission and payment of royalties. The proposed injunction filed by the publishers would prohibit all persons affiliated with GSU, including faculty and students, from reproducing, transmitting, downloading, etc. copyrighted materials without permission or in excess of the Guidelines for Educational Fair Use that accompanied the 1976 adoption of the Copyright Act. Nowhere in the proposed injunction is there any mention of fair use as codified at §107 of the Copyright Act.
The publishers’ insistence of limiting GSU, including its students and faculty, to outdated and overly-strict guidelines is abhorrent. While I do appreciate the guidance and wisdom of the authors of the 1976 Guidelines and their exposition on the concepts of “brevity” and “spontaneity,” I do not believe that guidelines drafted at a time when only print existed and current digital modes of delivering educational materials were not even imagined should be levied against an institution as the absolute maximums allowed. To do so would completely obliterate the balancing test prescribed by the terms of § 107. As an academic librarian, I appreciate the ease and efficiency offered by adherence to numeric guidelines. However, librarians should strongly advocate against imposition of such strict maximums and lobby loudly for fair use.
Further, I do agree that certain versions of the “fair use checklist” often utilized by academics tend to liberally lean toward a finding of fair use; however, the checklist problem should not be solved through such a drastic measure as removal of fair use as a concept and consideration and adoption of very minimum page and word limits.
What the Kinko’s case did to the use of printed coursepacks, the outcome of the GSU case may very well do to e-reserve practices employed at most institutions of higher education. However, the outcome may not be the simple discontinuation of a certain practice or a slight modification of process; rather, fair use landscape may very well be blighted.
May a faculty member who is teaching online digitize and stream documentary and Hollywood produced films in their entirety in order to illustrate a theme being covered in that class?
Earlier this week, I gave a presentation at Electronic Resources & Libraries on the rise in demand at colleges and universities for streamed video and how libraries can best address this need on the part of teaching faculty. Part of my discussion addressed the challenges copyright compliance presents in meeting this need. The Copyright Act at §110(1) addresses the performance of films in a face to face classroom. The TEACH Act amendment to the Copyright Act, codified at § 110(2), permits the performance of a reasonable and limited portion of films in an online classroom. And then there is still the application of fair use in the event the requirements of TEACH are not met. Oh, and let’s not forget, there is the DMCA, prohibiting the circumvention of technological prevention measures (TPM) on DVDs and other media for the purpose of copying and distributing their content. Thus, what may a professor do?
Digitizing and streaming an entire DVD is likely not permissible. Recently, an exemption under the DMCA was expanded to permit faculty of any discipline (as opposed to the previous extension to only film studies professors) to circumvent TPM in order to make clips of films for use in teaching and research. Under TEACH, there is the express limitation on quantity, and it is unlikely that an argument can be made that an entire film constitutes a reasonable and limited portion. In the Congressional Research Report prepared in connection with TEACH, it is stated:
Although what constitutes a “reasonable and limited portion” of a work is not defined in the statute, the legislative history of the Act suggests that determining what amount is permissible should take into account the nature of the market for that type of work and the instructional purposes of the performance. For example, the exhibition of an entire film may possibly constitute a “reasonable and limited” demonstration if the film’s entire viewing is exceedingly relevant toward achieving a educational goal; however, the likelihood of an entire film portrayal being “reasonable and limited” may be rare. [emphasis added]
A fair use argument for streaming an entire film also is flawed. Factors two and three weigh against fair use given the creative nature of film making and the quantity used. Recently, it has been suggested that because the purpose of the use is for other than entertainment, that it is transformative and under factor one fair use is favored. Whether there is a substantial effect on the market under factor four has been raised as an issue in the complaint against UCLA.
But faculty are not without alternatives should streaming an entire film not be permissible under current copyright law. There are many sources for streaming video content available that students can access on their own. For instance, the subscription service Netflix offers thousands of documentaries and mainstream film titles on a streaming basis for an affordable monthly fee that most students likely already pay. Additionally, sites like Amazon and iTunes offer inexpensive streaming video rental. Further, many commercial distributors of films offer licensing of streaming content, although the cost varies across vendors and is dependent upon a variety of factors.
When one considers the application of the principles of “risk management,” industries such as health care, engineering, or financial services come to mind first. However, the way in which an educational institution addresses copyright issues arising on campus, whether it be in the classroom, in the library, or on its network, can also benefit from the principles of risk management. An organized approach that involves a variety of stakeholders from across a university, that includes the development of a copyright literacy program, and that incorporates thoughtful policy drafting, positions an institution for success not only in avoiding infringement claims but also in maximizing the fair use rights of information users.
The principles of risk management as used by those industries named above can be found at the International Standards Organization (ISO) 31000. ISO 31000 enumerates eleven principles of risk management, which are listed below. Beside each principle, I have discussed how implementation of a risk management plan can work toward assuring the protection of not only the rights of copyright owners but also the rights of faculty and students as users of copyrighted works.
Principle 1: Risk management creates and protects value.
The owners of copyrighted works and the users of those works in the creation of new scholarship and culture have valuable interests at stake in the implementation of a copyright management policy at a university. Creators invest time and resources into the creation of the original work, and in return for this, the Copyright Act vests in them certain exclusive rights. Consumers of information, particularly in education, value access to these works to not only increase their own knowledge but also to enable them to expand the field of knowledge through the creation of new works. A comprehensive risk management plan protects these valuable interests by educating faculty and students about their own rights as authors or creators of works and how they can best protect those rights and about how they can benefit from the copyright law’s provisions for use of works in an educational context.
Principles 2 & 3: Risk management is an integral part of the organizational procedure and is part of decision making.
For many on a university campus, copyright is a daily consideration. For libraries, copyright issues arise in a multitude of contexts – from reserve and inter-library loan request processing to database license negotiation. For those working in information technology, copyright arises when streaming copyrighted content or when addressing infringement claims levied against students. A university can assist its staff of service providers by implementing a copyright risk management plan that ensures they all possess the same understanding of the law and defines what their responsibilities are to ensure institutional compliance. Such a plan promotes efficient and effective decision making.
Principles 4 – 7: Risk management explicitly addresses uncertainty; is systematic, structured and timely; is based on the best available information; and is tailored.
With the development of technology outpacing the enactment of law, a complicated and confusing situation concerning copyright in academia has evolved. Monitoring judicial response and scholarly exposition on academic copyright constitutes a full time job best filled by someone with the knowledge and experience to understand the changing environment and communicate these changes intelligibly and effectively to the university’s community of teachers, researchers, and students. An educational institution’s best course for managing copyright is employment of someone in this role who can read and understand the law, who appreciates the needs of the academic community, and who knows how to balance the interests involved in managing copyright.
Principle 8: Risk management takes human and cultural factors into account
Without human participation, we cannot have culture. And without fair use and other exemptions available to those in an academic community, continued creation of culture is stymied. As Lawrence Lessig, lawyer, professor, and avid copyright freedom proponent, stated in his book Free Culture: “As we’ve seen, our constitutional system requires limits on copyright as a way to assure that copyright holders do not too heavily influence the development and distribution of our culture.” A risk management approach to copyright management promotes the need for human participation in the creation of new culture and helps assure that faculty and student scholars can continue to develop and distribute new works of knowledge.
Principle 9: Risk management is transparent and inclusive
An effective copyright management program on a university campus requires the participation of a variety of stakeholders: faculty, library staff, IT professionals, conference services staff, and marketing staff. By including representatives from various interest groups on campus, there is a greater likelihood of creating a unified understanding of copyright and fair use; in effect, all the team members are using the same playbook. Further, by involving various interested parties and charging them with the task of managing copyright on campus through education and cooperation, administration exhibits a commitment to being transparent in its policy-making.
Principle 10: Risk management is dynamic, iterative and responsive to change
As stated in Principles 4-7, understanding of the application and effect of copyright law in an environment of ever-changing technology and pedagogical delivery modes requires the full time commitment of an individual or dedicated staff. This approach to copyright management allows for an adaptive and timely response to developments in the law.
Principle 11: Risk management facilitates continual improvement and enhancement of the organization
Higher education enjoys a unique place in copyright jurisprudence. Copyright law has been tested and adapted to the needs of those in education. The work for hire doctrine has been tested in cases concerning instructional materials, the bounds of fair use have been defined through litigation concerning course packs, and now the TEACH Act and the DMCA are being considered more thoroughly in cases concerning online delivery of content to students. Given higher education’s place in the history of copyright law, it stands in a strong position to further define and expand the law for the betterment of not only the institution but for all citizens. Through the continued support of open access, testing of fair use, and push for exemptions for use of digital media in teaching, higher education will be an effective actor in the valiant effort to share knowledge.
Does an author have to register a work with Copyright Office in Washington in order to have a copyright in his work?
Once a work is created in a fixed and tangible form, copyright ownership immediately vests in the creator of the work. Registration or publication of notice with the Copyright Office is not required. Further, use of a copyright symbol or similar notation is no longer required in order to claim copyright in an authored or created work. However, registration does become important if infringement occurs and the owner wishes to pursue legal remedies. Registration, particularly if done in a timely manner, creates a legal presumption of validity and allows an owner to recover a certain level of damages and fees. Further, registration can help defend against a claim of innocent infringement, which mitigates against an award of damages. It is important to remember that even if an owner registers his or her copyright in a work, the exemption of fair use still applies.
Aside from formal registration, another means that creators and authors can use to give notice of not only their status as owner of a work but also of their extension of permission to use their work is through a Creative Commons license. Copyright law, as written, creates an “all rights reserved” form of license. However, persons interested in the sharing of knowledge, the creation of new culture, and the encouragement of further scholarship can designate through a Creative Commons license commercial and/or non-commercial uses of their work that are permitted. There are a variety of free licenses that can be displayed. Creators and authors can determine, by answering a few simple questions, what license best applies to the permissions they want to grant. Use of Creative Commons is a great way of achieving balance within the current copyright system.
Does a professor own all materials (course notes, syllabus, handouts, etc) created for the courses she teaches?
Under the Copyright Act, 17 U.S.C. § 201(b), the copyright of works created by an employee in the scope of his or her employment belongs to the employer. This statement in the law is referred to as the “works for hire” doctrine, and its application to higher education has proven contentious for over 20 years. Through institutional custom and judicial musings, a universal reliance upon a “teacher’s exception” to the works for hire doctrine has persisted. However, with the rise of distance education has come new challenges to the validity of this exception.
The “teacher’s exception” emerged in response to questions of ownership of scholarly works produced by university faculty. Most notably, the Seventh Circuit Court of Appeals in Weinstein v. University of Illinois stated in dicta that faculty ownership of their creative works enjoyed a long tradition and that only faculty had the authority to grant permission to publishers to reproduce their works, not the universities that employed them. But what about course materials? Neither in the Copyright Act nor in any binding judicial declaration has there been proclamation of such an exception for faculty, particularly as applied to works created for instruction. Further, if the independent contractor vs. employee test specified in C.C.N.V. v. Reid were applied to a copyright action involving course materials, a court would in all likelihood determine that a faculty member was an employee. And preparation of materials used for teaching would likely be deemed as work prepared in the scope of the faculty member’s employment.
A tactic utilized by many colleges and universities in response to the ownership conundrum is adoption of general policies specifying ownership in copyrighted works produced by employees. However, federal district courts in Illinois and Rhode Island have recently ruled that such general policies are not effective for transferring copyright from the university (the presumed owner under the law) to the faculty member. Rather, formally executed and signed transfers of copyright ownership must be executed in order to effectuate a transfer. The courts in these cases have displayed little regard for general policies adopted by academic institutions.
These cases considered the ownership of written, physical materials. But what about course materials prepared for distance or online education? Due to the utilization of institutional resources, such as computer hardware and software, instructional designers, and licensed resources, universities have displayed a greater interest in retaining ownership of courses designed and developed by their faculty. As a result, a few institutions have begun taking the extra step of executing contracts with faculty to settle ownership in these materials. However, most universities have not settled the issue of who owns online course materials. At issue is whether faculty members should be able to profit from the use of institutional resources should they sell their materials to publishers or take them to another institution. And, although a critical principle in higher education, academic freedom legally cannot be asserted as a claim for ownership of online course materials.
For an excellent discussion of the “work for hire” issue, see “Instructional Materials and ‘Works Made for Hire’ at Universities” by Dr. Kenneth Crews.
In consulting with faculty at the university where I work and through conversations with colleagues at other institutions, I discovered that there are many persistent issues that arise in the intersection of copyright law and teaching. I started to write a post that addressed these several pervading questions, but the post grew too long for conventional blog fodder. So I decided I would start a new weekly post that would address one of these questions. I am calling this weekly feature “Scholasticus” – the Latin word for Scholar (I took Latin in college and rarely since law school have I had the opportunity to use it.) The format for Scholasticus posts will be a question or scenario followed by a detailed response that relies upon the black letter of the law, judicial interpretation of that law, and the common or best practices that have been adapted to follow that law. I invite comments and discussion, as well as suggestions for future topics to be addressed in this weekly feature. Remember, these posts (as all my material) should not be regarded as legal advice – they are merely my opinion and understanding. As always, please seek the advice of your own attorney or your institution’s general counsel before proceeding.