Sen. Tillis, The Copyright Office, and Continued Library Advocacy

As noted by Andrew Albanese of Publishers Weekly in “Senator Wants Copyright Office to Weigh in on Maryland Library E-book Law,” Sen. Thom Tillis (R, NC) of the U.S. Senate’s Judiciary Committee has sent a letter to the U.S. Copyright Office asking for a review of the Maryland law scheduled to take effect on 1/1/22.

Albanese’s article is well-worth a read but to summarize: Tillis’ letter echoes concerns previously express by the AAP [so closely that RF opines it cannot be a coincidence] that the Maryland law is unconstitutional, that the state is encroaching on federal domain, that the Copyright Office should "clarify if federal preemption applies," but that letters like this are not uncommon, unlikely to affect the Maryland law even if the Copyright Office issues a negative statement, and that the letter is an effort to chill activities in other states, including New York where a bill has been passed in the legislature but is awaiting signature.

RF agrees with the contention of Jonathan Band in the article that the Tillis letter and AAP claims are inaccurate. The letter says among other things that the state’s “compulsory license” removes rights from the copyright holder. Not so. The law respects the license offered for works by the publishers and does not dictate terms. We agree that this is likely an attempt to chill other state legislation. Our Working Group has sent the following letter to librarians in 8 states who have expressed some level of interest in legislation. In some cases, bills are awaiting introduction, while in others the idea is just germinating. We encourage stakeholders in other states to consider moving forward. A patchwork of legislation may bring the matter into federal legislation. In the meantime, library stakeholders should advocate for “print equivalent” digital licensing terms. We salute publishers who already offer such terms and ask, without them how will we ever be able to offer in digital the richness and deep collections we can offer in print?

Dear Colleagues:

We are emailing because you have expressed interest in advocacy for an eBook law in your state like Maryland’s, enabling libraries to license any eBooks or eAudiobooks made available to individuals at reasonable cost. We learned last week that Sen. Thom Tillis, ranking member on the Senate Intellectual Property subcommittee, believes the Maryland law to be unconstitutional and has requested the Copyright Office to publish an opinion intended overtly to discourage you from seeking legislative solutions to eBook access in your state.

Sen. Tillis’ letter makes arguments similar to the talking points used by the lobbying organization Association of American Publishers (AAP), so we believe that’s where the interest originates. Rather than challenge the legislation directly in court, AAP appears to be trying to enlist the Copyright Office to chill new state efforts to protect access to eBooks by raising the raise the specter of unconstitutionality. The Maryland and New York legislatures rejected the assertion that the ebook legislation is preempted by the U.S. Copyright Act and passed the legislation; it will be law in Maryland on 1/1/22. If you are interested in details, we can gather that information for you.

Ultimately, we do hope to achieve a federal-level solution to protect the rights copyright law extends to libraries, allowing us to obtain digital materials at reasonable prices without constraint and create archival copies, etc. But we believe that the path to a national solution begins with precedents at the state level: demonstrating need and modeling solutions. In brief, we hope this information will galvanize your effort to pass a law in your state that protects access to eBooks.

Please share this with letter with any interested parties in your state.

PBS Point-of-View Series Offers Libraries Some Free Programming Opportunities

From a Press Release from PBS:

POV (a cinema term for “point of view”) is America’s longest-running nonfiction series.

Since 1988, POV has presented films on PBS that capture the full spectrum of the human experience, with a long commitment to centering women and people of color in front of, and behind, the camera.

 Every season, we attract an average of 1-2 million viewers per program and reach a younger, more diverse audience than other PBS series. In 2019, nearly half of our viewers lived in households with incomes under $40,000.

Through our programs, we support bold, independent storytellers who reflect the public we serve. This season, nearly two-thirds of our programs are directed by filmmakers of color and over 80% are by women.

This season, we are pleased to be the broadcast home of films like:

The Neutral Ground 

The Neutral Ground documents New Orleans’ fight over monuments and America’s troubled romance with

the Lost Cause. In 2015, director CJ Hunt was filming the New Orleans City Council’s vote to remove four

confederate monuments. But when that removal is halted by death threats, CJ sets out to understand why

Pier Kids

On the Christopher Street Pier in New York City, homeless queer and trans youth of color forge friendships

and chosen families, withstanding tremendous amounts of abuse while working to carve out autonomy in

their lives. With intimate access to these fearless young people, Pier Kids highlights the precarity and

resilience of a community many choose to ignore.

 Fruits of Labor

Ashley, a Mexican-American teenager living in an agricultural town in the central coast of California,

dreams of graduating high school and going to college. But when ICE raids threaten her family, Ashley is

forced to become the breadwinner, working days in the strawberry fields and nights at a food processing

company.

Watch an exclusive preview of the POV Season 34 HERE (password: povseason34!). 

Beyond the broadcast, we work with a network of over 13,000 partners including libraries, museums and classroom educators. We spark community conversation by producing public resources and hundreds of nationwide events that extend the reach of our films and move our impact work forward.  

 Given that we are still navigating a public health crisis, we are encouraging partnered community organizations and stations to reimagine community screening events through virtual platforms like OVEE and ZOOM and to creatively shift towards safe outdoor social distancing approaches that can foster community building.

Join the POV Community Network -- a free digital film lending library for educators, nonprofits, librarians, PBS Stations, and other engaged community members to host free community and educational screening events of POV films. Partners can host online screenings to watch films together through Zoom and use lesson plans, discussion guides and reading lists to facilitate conversation about POV films. 

POV Engage provides free access and training to organize a virtual or in person film screening in your community or classroom. How do you sign up?

Create a free account to join the Community Network and register your screening event today!

PW Asks: Can Maryland's New E-book Law Help Change the Marketplace?

Publishers Weekly’s Andrew Albanese has written an informative overview of a statement recently released by the Maryland Library Association (MLA) setting out one interpretation of Maryland’s ebook legislation. [Disclosure: the article contains statements from and (yukk!) a photo of me. Obviously I am not an impartial party.]

The article, which is a must-read for anyone interested in the library digital content market, sets out the MLA contention that that simply making digital content available is not enough to be in full compliance with the law. The statement allows for a wide variety of models, but the fundamental idea is that digital content should, in a combination of all terms including license duration and cost, approximate the cost for analog, particularly print cost. The MLA argues that what has been “reasonable” for hundreds of years in print is a good guide to what digital should cost.

Why should digital cost so much more? It can’t be because digital never expires when licenses so often build in an expiration. To quote my RF colleague Carmi Parker, “Would anyone say it was ‘reasonable’ if publishers said print books should cost libraries $60 a copy and those books must be weeded from the collection in two years.” Yes, I know the difference between license and copyright. What I dispute is that digital should so often be so much higher overall. Protections against illegal distribution are in place. The Maryland law stipulates that Maryland Libraries will conscientiously respect license requirements. Arguments about “friction” are vacuous. Library digital waiting lists are often so long, unless the items are offered on the often budget busting pay-per-use model, that any talk of friction are laughable. Publishers may have no single greater prod for customers to by than the library waiting list.

The article mentions AAP opposition to the Maryland law: “we question the strategy of library lobbyists, who are sophisticated actors in Washington, in pushing unconstitutional legislation and a storyline that is at odds with both the operation of the law and market facts.” I call BS. Not being an attorney, I won’t comment on the legal aspects, though one can find the AAP statements refuted here. But market facts? That publishers can and often do charge on average many times higher for digital than for print is certainly a market fact. Libraries can pay, indeed must pay if we want access, but that doesn’t make the prices fair. And “sophisticated actors in Washington”—that’s especially rich coming from a Washington lobbying firm. This assertion is untrue. The MLA statement was written and edited by Maryland librarians. It was approved by the MLA. It is a librarian initiative. We’re not sophisticated actors in Washington. We’re librarians, and proud of it. Maybe its easier to attack make-believe Washington actors, but AAP, address your concerns where they belong. Frankly, though, the AAP’s statements have no more validity than this utter falsehood.

The MLA invites conversation with all publishers individually while thanking the many who already offer print equivalent on average. If you don’t want to talk with us, at least plan on talking with the ALA, or COSLA, or ULC, or any number of stakeholders. One thing seems clear: Maryland’s will not be the last legislation of its kind.

CDL: A Debate

Thanks to the Internet Archive’s Chris Freeland for an event alert:

As part of its annual Copyright and Trademark Symposium, BYU is hosting a debate about Controlled Digital Lending. Tune in to hear librarian and CDL white paper author Dave Hansen (Duke University) debate the merits of CDL with legal fellow Devlin Hartline (Hudson Institute). There will be a vote at the end of the session to see which presenter has the most persuasive argument.

The Symposium starts at 11am ET; the debate is at 12pm ET. Registration is free.
August 19 @ 9am PT / 12pm ET - Register now

It should be interesting!

An NZ View on CDL

The National Library of New Zealand has donated 600,000 books to the Internet Archive to digitize and share internationally through controlled digital lending. Representatives of the library are delighted, but there had been pushback, including the usual charge of piracy.

It is refreshing, then, to see copyright lawyer Michael Wolfe pen a considered rebuttal:

In the surprisingly high-stakes, high-emotion world of copyright law and policy, the word “piracy” is a trusty old standby — it’s the allegation copyright owner interests lob at any use of their works not subject to total owner control. “Alleged infringement” or “legally permissible but sternly disapproved of by rights-holders” just don’t convey the same sense of urgency or alarm.

Without a doubt, rights-holders are upset at the Internet Archive and are, in fact, suing the organisation in the United States. On its own, the existence of a lawsuit doesn’t tell us much — litigation is a way of life in America, and copyright owners there have a long history of overestimating their legal rights and losing their biggest cases (just ask Oracle, or the Authors Guild, or Universal Studios). Maybe it’s prudent, then, to take a look at the substance of what the lawsuit is about

With that in mind, here is the controversial thing this library, the Internet Archive, is doing: they’re lending books.

In effect, libraries are choosing controlled digital lending to maintain the traditional library model in a world that’s diminishing it. In so doing, libraries are vastly expanding who can read what books and the ways in which they can read them. For many of us, that means getting little nice-to-have features, like being able to do a full text search on a book we’re reading. For others, like those with disabilities that prevent their reading print books, or for those who live far from physical libraries, it’s a complete game changer in access to the written word. Sounds terrible to you? Odds are good that you’re a publisher.

If this whole debate gives you strong feelings favouring either side, I hope you’ll agree that it surfaces important questions that demand to be taken seriously, not glibly. They’re also questions that demand democratic engagement here in New Zealand. The future of our libraries does not hinge on the outcome of an American court case. We write and enforce our own copyright laws, and as luck would have it, they’re currently up for review. If there’s a blessing buried anywhere in this whole kerfuffle, it’s the prospect that it might provide an opportunity to get the law on the books working properly for our books.

Hear hear! The above is but a snippet—there is much more in the article of solid good sense and it is well worth a read. And CDL and these questions demand democratic engagement here in the USA too. Copyright is supposed to balance the needs of rightsholders with the need to share knowledge. Digital is becoming unsustainable—and in the case of streaming only, often impossible—for libraries. It is past time to rebalance these competing needs.

An MLA Statement on "Reasonable Terms"

As noted by the Authors Alliance in a well-articulated recent blog post, libraries and state legislations have been making many efforts recently to address the issue of the availability and license terms of digital content in libraries. Their post summarizes many initiatives in one convenient place and is worth a read, especially for its take on how libraries sharing content can help authors. The post was updated yesterday with a link to new content from the Maryland Library Association (MLA), which yesterday posted a press release and a statement defining what is meant by “reasonable terms” in the Maryland legislation’s recently passed digital content bill.

I have described that legislation as “mild.” While I wish I were more articulate when talking with the members of the media and had made the point more compellingly, I’ll stand by the tenor of that description. The bill does not undermine the existing relationship between libraries and publishers. It simply wishes in part to prevent embargoes. It does not apply to all types of library—public, school, academic (in retrospect, I wish we would have used for that, as other legislation now has!). It doesn’t provide for libraries being able to make digital copies for preservation purposes. It doesn’t establish some sort of digital right of first sale and exemption from licensing for libraries, allowing digital titles to be shared as print materials are. It doesn’t put into law an official position that controlled digital lending is legal. It doesn’t begin to address the growing issue of how much content, especially video, is becoming streaming only, leaving library users out. It is, however, what we thought we could pass and provides a law guaranteeing library readers’ access to ebooks and audiobooks under terms that are “reasonable” for libraries.

So, what is “reasonable”? [Disclaimer—I helped to write the statement]. The statement went through many drafts. It sticks closely to an interpretation of what the legislators meant. It is careful about being an invitation to publishers individually to talk with library stakeholders rather than trying to set specific pricing or other license terms. We are well aware that publishers cannot engage in group dialog and must avoid even a hint of unfair pricing negotiations. It points to the long tradition of libraries, their readers, publishers, and authors all benefitting from materials being sold and circulated under copyright. Carmi Parker and I have previously covered this reasoning in an InfoToday article. In general, we think that circulating digital materials in libraries should be roughly equivalent (in overall cost and duration of titles) to circulating physical materials. If that balance between all competing rights had been fair in physical materials for hundreds of years, why is it not a good template for digital, even though digital materials might (at least under the Maryland law) continue to circulate under license and not copyright?

The good thing about the statement is that it encourages a wide range of possible models as “reasonable.” Metered access by circ (and please not by time, if possible)? Fine, give us roughly the price of physical materials. Worried about long-term costs of perpetual access? Okay, charge a higher price—but not hundreds of $$. Perpetual access and simultaneous access to a title by many, such as a classroom license? Something can be figured out, but it had better not be individual licenses at $30 per single use. A “community reads” title for a large city with unlimited simultaneous access might get thousands of downloads and be “reasonable” at thousands of $$. The key is libraries should be getting roughly the “bang per book” (hardy har—rimshot!) on average in digital that we get from physical. “How ‘reasonable’ would it be,” asks my RF Working Group colleague Carmi Parker, if a publisher “suddenly told libraries that the prices on their hardbacks were jumping from $20 to $60 and that all copies must be removed from the shelves and repurchased every 2 years?” Other than fostering access to titles and preventing embargoes, the law’s other main thrust is to encourage better terms for libraries. A return roughly equivalent to what comes from print or other physical media is “reasonable” for ebooks and digital audiobooks.

All that said, I hasten to point out that many publishers already offer terms that would be “reasonable” under the MLA statement. HarperCollins offering classics at (say) $12-14 for a 26 circ license is fair. Many medium and smaller publishers are making content available perpetually at lower prices. Some publishers are working with the Internet Archive to sell, not license, content in EPUB. Those publishers are encouraged to work with other platforms so many libraries might take advantage. There’s no question that digital has been a disrupter for publishers, authors, and libraries. We in libraries feel that in many cases—by no means all!—the delicate balance between rights holder and reader has now tilted too far away from readers. We seek access to content in ways that will be sustainable for libraries, for the benefit of our readers—and authors and publishers. The Maryland legislation is one step forward.

IA Coming Attractions

Our Friends at the Internet Archive have posed about some interesting upcoming sessions:

From Wayback to Way Forward. As the Internet Archive turns 25, we invite you on a journey from way back to way forward: visit our newly launched anniversary site for an interactive timeline and video stories highlighting key moments when knowledge became more accessible for all. Then, join us on Thursday, October 21, for a virtual celebration featuring special musical performances, video tributes, and a spectacular birthday cake - RSVP now!

August 3
Past, Present, and Future of Digital Libraries
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 (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. The panel will be moderated by Lila Bailey of Internet Archive and Kyle Courtney of Library Futures and Harvard University.
August 3 @ 10am PT / 1pm ET - Register now

Materials that appear in digital format only, especially under license terms that prohibit library access, are a growing preservation problem. Join for a lively discussion of this and other issues.

A Conversation with Alan Inouye, Andrea Berstler, and, well, (sorry) Me

Recently as part of Maryland Library Association’s MLA Conversations, Alan Inouye (Senior Director, Public Policy & Government Relations, American Library Association), Andrea Berstler (Executive Director, Carroll County Public Library; Chair, Maryland Library Association’s Legislative Panel) and I spoke about Maryland’s e-book legislation. We covered the following topics:

• What have been some of the greatest challenges that libraries have faced in recent years in lending ebooks and e-content more broadly to our communities?

• So far we’ve been talking mostly about the traditional publishers. Where does Amazon.com fit among these concerns?

• How have libraries been trying to address these challenges in the public policy arena? We’ll discuss the new Maryland law in a moment, but I understand that Rhode Island has reintroduced a bill in their state legislature while New York has passed a bill that is awaiting signature. What would these accomplish if they take effect?

• How did the Maryland bill get introduced in the 2021 session in Annapolis? What led to it being passed by the General Assembly? What do we expect will be the effect of this bill now becoming law in Maryland?

• In May 2021 there was also news about the Digital Public Library of America (DPLA) signing an agreement with Amazon Publishing to make their ebooks available to U.S. libraries. What details do we know about this arrangement?

• Is there any action expected at the federal level? Has any legislation been introduced in Congress that could ensure that libraries have the ability to lend ebooks? Are there any court cases we should be paying attention to?

• Where do we see some of these trends going in the next few years? Do we expect more opportunities for libraries to lend ebooks? Or will we see more restrictive terms?

If interested, you may view the conversation here. Any thoughts? Please comment below!

OD Announces Some Updates to its Marketplace

Last week, OverDrive announced some enhancements to its titles display and some additions to its reports. RF is happy when vendors make platforms more robust. RF thanks OverDrive especially for working to make multiple/flexible models available when publishers offer them.

[Email from OverDrive}:

We recently improved the title details display in OverDrive Marketplace, making it easier to select the right content for your users and understand how your collection is being used. This new display helps you quickly see:

• Purchasing options: An updated display of available lending models* and pricing help you identify the options that best meet the needs of your budget.
  *Note that CPC and SU remain separate from the One Copy/One User & Metered Access view.

• Title metadata: A new grid outlines robust information, including ISBN, language, BISAC subject headings, and more.

• Ownership information: An easy-to-read chart delivers a streamlined summary of a title’s copies, active holds, checkouts from the past year, most recent checkout date, and more.

• Sale pricing: If a title is on sale, see the discounted price and sale end date before selecting a lending model. This visibility is new for Cost Per Circ (CPC) titles, and you can use the recently released scheduler to align CPC availability in your collection with the duration of the sale.

• Pricing for weeded titles: If a title is currently weeded from your digital collection, the title details now displays current pricing and available lending models.

Title availability may vary by geographic region.

The updated display appears both in search results and on individual title details pages.

Based on valuable partner feedback, we’ve made the following additional updates:

• To improve performance and load times when running popular reports, you can now select your criteria before the data loads and choose to export the results as a worksheet. This is particularly beneficial to partners running large reports. We also continue to work on behind-the-scenes improvements to enhance overall performance and load times.

• You can now search the Checkouts and Weed collection reports by Reserve ID or Title ID.

• When you export Checkouts or Title status & usage reports, the spreadsheet includes a BISAC subject headings column. This update is intended to support the needs of our partners who are working on diversity audits for their digital collection.

Blackstone continues library embargo

As you all may know, the Macmillan embargo of 2019 was not the first large publisher embargo.  The first was Blackstone Publishing, which distributes eAudiobooks for large publishers such as Hachette, Marvel, & Disney.  It did not place a library embargo on those titles, but on titles from its smaller publishing arm.  It created a contract in 2019 with Audible to offer up to 10 selected “home grown” titles exclusively on Audible for three months after release.  This exclusivity extends to library purchases, and appears to cover a range of titles, including exclusive eAudiobook versions of many works by Gabriel García Márquez (scroll to view the many titles with a ribbon stating “Only from Audible”).

Several libraries chose in 2019 to boycott Blackstone and Carmi’s consortium (Washington Digital Library Consortium) is currently still doing so.  I talked with Blackstone in 2019 and had reason to believe that their contract with Audible was for two years, expiring on June 30, 2021.  I wrote Blackstone a letter in spring 2021, requesting that if they renegotiate with Audible, they drop the library embargo requirement.  I have since learned that Blackstone appears to have renegotiated and has chosen to keep the library embargo.

I have recommended to my consortium that we drop our boycott because it is hurting patrons and clearly has no influence on Blackstone or Audible.  I believe the way to restore access to the content is to follow Maryland and New York’s lead and pursue legislative advocacy that would require libraries to be able to purchase eBook and eAudiobook content if it is offered for sale to individuals. ReadersFirst and its associated libraries encourage these companies to work with libraries now. Readers deserve access to all content through their libraries.