In Defense of Library Lending

“The Hachette v. Internet Archive case has been in the press lately following the parties’ filing of summary judgment motions. But the case is not about the end of copyright as we know it, as Copyright Alliance CEO Keith Kupferschmid implied in his July 18 PW Soapbox, “Standing Up for Copyright.” Nor is it a “torpedo” aimed at the Copyright Act, as AAP CEO Maria Pallante said in a recent PW q&a. Rather, the case concerns the special role of libraries to provide open, nondiscriminatory access to books.

At issue in the publishers’ lawsuit is a practice called controlled digital lending, the principles of which my colleague Dave Hansen and I codified in a 2018 white paper. Under CDL, libraries (including the Internet Archive) make scans of their legally acquired physical books and loan the scans in lieu of the print under rules that mimic physical lending: only one person can borrow a scan at a time; the scans are DRM-protected; and only one format can circulate at a time to maintain a one-to-one “owned-to-loan” ratio. In other words, if the scan is checked out, its print counterpart cannot circulate, and vice versa….

Pallante suggests such efficiency is a bad thing, citing the publishers’ long expressed desire for “friction” in digital library lending. But having legally purchased their physical books, the IA and its partner libraries are entitled under copyright law to lend them. Nothing in the Copyright Act requires there be any amount of friction in the lending process. Copyright law does not protect friction.

It is time for the major publishers to stop treating each library loan as a lost consumer sale. In his Soapbox, Kupferschmid complained that the IA has “amassed a collection without paying the rights holders a cent.” In fact, the books were paid for. These are the books that sit on our libraries’ shelves or in our off-site repositories. They were all purchased by a library or otherwise legally acquired, and the authors were all paid in accordance with their publishing contracts. Furthermore, this is what libraries do: amass and preserve collections that serve an important, fundamental purpose in society long recognized and valued by the public, courts, Congress, as well as by publishers and authors….”

Statement by Library Futures and SPARC on Wiley E-Textbook Withdrawal | SPARC

In late August, at the start of the Fall 2022 school semester, Wiley Publishing Company abruptly withdrew 1,379 multidisciplinary titles from Proquest, a vendor for university ebook collections around the world. As a result, librarians and faculty members in the United States and internationally have scrambled to identify alternative textbook options for their students as the pandemic amplified the trouble with restrictive licensing and e-textbooks.

Library Futures and SPARC strongly condemn this action by Wiley, which seriously hinders students’ access to equitable, affordable course materials. The full list of titles and public contact information for their authors was compiled by Johanna Anderson of #ebookSOS.

[…]

 

Mitigating the Library Ebook Conundrum – Library Advocacy and Funding Conference

“Current eBook licensing practices are eradicating the central mission of libraries, with grave repercussions for equity and access to the world’s knowledge. The root of the issue is that while libraries buy print books in order to lend them to patrons, they can’t actually buy eBooks. Instead, they license the content from publishers. This means that publishers can set whatever terms they want in eBook licenses to libraries—or refuse to license them at all.

Library Futures supports legislation that aims to equitize the eBook marketplace. To that end, we have developed model legislative language that avoids the problematic Maryland language and that we therefore believe will hold up against legal challenges. In short, we propose model legislation grounded in state consumer protection, state contract law, state procurement law, and contract preemption.”

Mitigating the Library eBook Conundrum

“Current eBook licensing practices are eradicating the central mission of libraries, with grave repercussions for equity and access to the world’s knowledge. The root of the issue is that while libraries buy print books in order to lend them to patrons, they can’t actually buy eBooks. Instead, they license the content from publishers. This means that publishers can set whatever terms they want in eBook licenses to libraries—or refuse to license them at all.

Library Futures supports legislation that aims to equitize the eBook marketplace. To that end, we have developed model legislative language that avoids the problematic Maryland language and that we therefore believe will hold up against legal challenges. In short, we propose model legislation grounded in state consumer protection, state contract law, state procurement law, and contract preemption.

This webinar will bring together the two Library Futures fellows (Juliya Ziskina and Emily Finch), in conversation with Kyle Courtney (Library Futures board chair), and Dave Hansen (ED, Author’s Alliance) to discuss this new model bill and future legislative remedies for the eBook conundrum.”

Library Futures | Library Futures Releases Policy Statement and Draft eBook Legislative Language: Mitigating the Library eBook Conundrum Through Legislative Action in the States

“Library Futures supports legislation that aims to equitize the eBook marketplace. To that end, we have developed model legislative language that avoids the problematic Maryland language and that we therefore believe will hold up against legal challenges. In short, we propose model legislation grounded in state consumer protection, state contract law, state procurement law, and contract preemption. Our policy statement document explains the legal rationale behind our proposed model bill. You can also view an interactive map of current legislation and sign up for updates on Library Futures’s policy activities. Thank you to our community of experts for their edits, feedback, and input into this statement and bill, and thank you to Readers First and the community of library advocates who have worked for equitable ebook legislation in their states….”

Equitable Access is the Future of Knowledge: 2021 Annual Report

“In 2021, we set out with a goal to become a significant player in the digital rights space in order to empower digital transformation in libraries. Thanks to you, we’ve succeeded. As we head into our next chapter, we wanted to take a look back on the incredible achievements of the past year and celebrate a year of fighting for the rights of libraries in the digital age….”

Library Futures | Statement on the Association of American Publishers Suit Against the State of Maryland

“We are dismayed, but ultimately unsurprised, by the Association of American Publishers’s decision to file suit against the State of Maryland for their ebooks law, passed unanimously by the General Assembly on March 10th, 2021. This law is set to go into effect on January 1, 2022. It represents the Maryland Library Association’s efforts to simply request equal access and pricing in digital content. Nevertheless, the AAP’s complaint calls Maryland’s law “radical.” 

What is “radical” is the lawsuit’s multiple spurious claims regarding the intention of the law, attempting to deflect the blame for the price gouging and rent-seeking behavior for library digital content on technology companies rather than its own members’ behaviors in the market. Public libraries are spending upwards of three times consumer pricing for econtent from the big publishing companies. Further, libraries must continually re-buy their collections over and over or risk having their titles disappear from their collections after the licenses expire or stop being offered.

The AAP’s suit does not represent the view of authors, creatives, or even most publishing companies other than a minority of the biggest media corporations in the world. This famously litigious trade organization has tried to stop libraries before, and they have lost every time. Ultimately, the lawsuit represents a pattern of behavior that demonstrates the commercial publishing industry’s continued disdain for the librarians, educators, and the public who simply want resources to provide access to materials, combat misinformation, and provide quality education in the State of Maryland and beyond….”

International Statement of Solidarity | Library Futures

“The future of knowledge is digital, open, accessible, and culturally responsive. As information workers, we seek to steward this future through shared goals: Balancing copyright and an information ecosystem that meets the needs of communities globally….

We believe:

Copyright must be updated for the digital age and exceptions and limitations must be made for libraries to best serve the public
Controlled Digital Lending and other innovative lending practices should be legally protected
Digital first sale, the principle of exhaustion in intellectual property law, and ownership of digital objects is the only way to ensure full access to information by libraries and cultural institutions
Libraries should be able to purchase and lend all eresources at reasonable prices
Licensing has created a pervasive market failure that must be investigated by regulators and governments to ensure that the public has access to relevant, timely, published information to support education, research and economic growth
Libraries have a responsibility to advocate for policies that will affect their communities
We must achieve ideal, universal access to knowledge for all patrons regardless of socioeconomic status, identity, or ability….”

The Corruption of Copyright: New Scholarship in Libraries, Technology, and the Law

“Join Library Futures, Internet Archive, and the Georgetown Intellectual Property and Information Policy (iPIP) Clinic for a panel on copyright, licensing, accessibility, and the law. We’ll be discussing new scholarship from legal experts Michelle Wu (retired Georgetown University Law Center) and Blake Reid (Clinical Professor at Colorado Law).

Wu’s “The Corruption of Copyright and Returning to its Original Purposes” (Legal Reference Services Quarterly) looks at how some industries have redirected the benefits of copyright towards themselves through licensing and other activities, which impacts author remuneration and upsets the balance of the public interest. This paper focuses on the book, music, and entertainment industries, examines how copyright has been used to suppress the uses it was intended to foster, and explores ongoing and proposed avenues for course correction: https://scholarship.law.georgetown.edu/facpub/2410/

Reid’s “Copyright and Disability” (forthcoming in California Law Review) discusses how recent progress toward copyright limitations and exceptions continues an ableist tradition in the development of U.S. copyright policy: centering the interests of copyright holders, rather than those of readers, viewers, listeners, users, and authors with disabilities. Using case studies, Reid explores copyright’s ableist tradition to discuss how it subordinates the actual interests of people with disability. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3381201 ”

Controlled Digital Lending: Unlocking the Library’s Full Potential Tickets, Thu, Oct 7, 2021 at 10:00 AM | Eventbrite

“??Last month, Library Futures Foundation released a new policy document, “Controlled Digital Lending: Unlocking the Library’s Full Potential.”

Library Futures Foundation developed this document in consultation with the Intellectual Property and Information Policy (iPIP) Clinic at Georgetown Law. The document covers all the benefits, innovations, and goals that are the basis of any controlled digital lending system and makes the crucial connection between CDL and issues of equity. It expands beyond the legal rationale laid out in the Controlled Digital Lending (CDL) White Paper by clarifying the core principles that are the foundations of a library’s mission to provide access to materials to serve the public good.

This session will provide an opportunity to hear from the authors of the policy document, to engage in a virtual discussion, and to give your feedback on how this document may be useful to your community.”

Library Futures | Controlled Digital Lending: Unlocking the Library’s Full Potential

“We are very excited today to announce the release of the Library Futures Foundation’s (LFF) new policy document “Controlled Digital Lending: Unlocking the Library’s Full Potential.” As outlined, controlled digital lending maximizes a library’s ability to loan works, thereby making the entire loaning system more efficient and equitable. 

Library Futures Foundation developed this document in consultation with the Intellectual Property and Information Policy (iPIP) Clinic at Georgetown Law. This concise policy document covers all the benefits, innovations, and goals that are the basis of any controlled digital lending system. It expands beyond the legal rationale laid out in the Controlled Digital Lending (CDL) White Paper by clarifying the core principles that are the foundations of a library’s mission to provide access to materials to serve the public good. …”

Controlled Digital Lending: Unlocking the Library’s Full Potential

“Controlled digital lending works exactly as the name implies: it is a controlled, digital form of the traditional library lending system. Under CDL, libraries generally lend digitized versions of print materials from their collections, strictly limiting them to a single digital copy per physical copy owned—a one-to-one “owned-to-loaned” ratio. If a library owns two physical copies of The Giving Tree, it only loans out two copies at any time, whether physically or digitally. This maintains the same limits as traditional book lending but enables access digitally. Digital access is especially important for those who live or work far from their closest library or whose work, childcare, or school schedules make physical access during business hours challenging. Communities rely on libraries to serve as a hub for education and knowledge. CDL (1) drives economic efficiency by maximizing returns on tax dollars, (2) expands reliable and equitable education, (3) promotes civil rights for marginalized communities, and (4) improves access through digitization. Congress should support their communities by empowering libraries to serve as a meaningful access point for these publicly funded collections by: ? Supporting legislation that codifies the practice of CDL by libraries.2 ? Encouraging funding through grant programs and other incentives to facilitate CDL. ? Promoting the development of a federal, centralized set of digital materials for use in CDL programs….”

Why CDL Now? Digital Libraries Past, Present & Future – Internet Archive Blogs

“Libraries have historically been trusted hubs to equalize access to credible information, a crucial role that they should continue to fill in the digital age. However, as more information is born-digital, digitized, or digital-first, libraries must build new policy, legal and public understandings about how advances in technology impact our preservation, community, and collection development practices.

This panel will bring together legal scholars Ariel Katz (University of Toronto) and Argyri Panezi (IE University Madrid/Stanford University) to discuss their work on library digital exhaustion and public service roles for digital libraries. They will be joined by Lisa Radha Weaver, Director of Collections and Program Development at Hamilton Public Library, who will discuss how library services have been transformed by digital delivery and innovation and Kyle Courtney of Library Futures/Harvard University, a lawyer/librarian who wrote the influential Statement on Controlled Digital Lending, signed by over 50 institutions. The panel will be moderated by Lila Bailey of Internet Archive….”

Why CDL Now? Digital Libraries Past, Present & Future

“Libraries have historically been trusted hubs to equalize access to credible information, a crucial role that they should continue to fill in the digital age. However, as more information is born-digital, digitized, or digital-first, libraries must build new policy, legal and public understandings about how advances in technology impact our preservation, community, and collection development practices.

This panel will bring together legal scholars Ariel Katz (University of Toronto) and Argyri Panezi (IE University Madrid/Stanford University) to discuss their work on library digital exhaustion and public service roles for digital libraries. They will be joined by Lisa Radha Weaver, Director of Collections and Program Development at Hamilton Public Library, who will discuss how library services have been transformed by digital delivery and innovation and Kyle Courtney of Library Futures/Harvard University, a lawyer/librarian who wrote the influential Statement on Controlled Digital Lending, signed by over 50 institutions. The panel will be moderated by Lila Bailey of Internet Archive.”

Implementation & Integration: CDL for All Libraries

“For the second event in a series about the innovative library practice of Controlled Digital Lending, we’ll hear from libraries, consortia, and librarians who are exploring CDL implementations at their institutions and communities with hands on learning around potential and existing solutions. Learn about building institutional CDL policies, user experience for patrons and staff, technological platforms, and how you can get involved with the CDL community. Bring your questions, ideas, and be prepared to dig in!”