WRONG!

As much as one hates giving attention to misinformation, sometimes half-truths and flat out lies need debunking. Such is the case with the recent launch of “Protect The Creative Economy,” brought to you by lobbyists dedicated to making sure we end up with an economy in which everything is licensed for use, nothing is owned, and libraries docilely pay usurious prices for digital content so that mega-corporations, often foreign owned, can get fat at the public-fund trough.

First off, let’s clarify that many, indeed most publishers work well with libraries. We thank you! You know who you are. The poor starving giants that these lobbyists are protecting are the problem.

I have yet to see any publishers, much less their K Street hired guns, seriously engage in the real reading fight of our times: the organized, well-funded, Astro-turfed efforts playing out locally and, yes, in state legislatures to control what people can read with fake charges of obscenity covering up Christian nationalism. Joe McCarthy, your mean spirit lives on an even more dangerous attack on democracy. Publishers, where’s your coalition? Where’s your website? Where’s your damn money? A very few press releases from some of you ain’t much. Oh well, never trust corporations to fight for intellectual freedom. Might lose a sale! Good thing librarians are there on the front lines.

Let’s just look at the website header from our good friends at K Street:

“Anti-copyright groups are working in state legislatures across the country to devalue intellectual property through attacks on licensing that are dangerous as well as unconstitutional. They are pushing measures that threaten the viability of competitive markets, the livelihoods of creators, and the future of the entire creative economy.”

“Anti-copyright groups are working in state legislatures” WRONG! We’re librarians. Who are these unnamed groups? I can answer for Maryland, and indeed for many other state bills, that librarians are working with legislators. We’re not anti-copyright. Librarians are strong supporters of copyright. And the legislators get it. Not a single negative vote in Maryland. Only one “nay” in New York. As soon as they, and residents, see your prices, they understand publishers are simply UNFAIR.

“Attacks on Licensing.” WRONG! No state bill has attacked licensing. Licensing can be managed. What is being attacked is your UNFAIR PRICES, with rates often many times higher than identical titles in print format. You don’t seem to mind library sales in print, though they are far more numerous than digital licensing amounts. Are those sales putting you out of business? They don’t seem to be. Why not offer equivalent prices for digital? Is it because you know you can’t unfairly charge libraries for print (but wish you could!) but simply can with UNFAIR practices that let you screw librarians who feel compelled to offer titles in digital due to high demand?

“Unconstitutional.” WRONG! The Maryland law was ruled so in a case in which even the judge said “there is inequity and an unfairness on how publishers have treated public libraries.” But we’ve learned. Many new state bills say that libraries may not engage in unfair contracts. How is it unconstitutional for a state to say how its money should be spent? It’s on the publishers to decide if they wish to negotiate terms that will be acceptable. If they don’t, then they lock themselves out of a market, not libraries.

“the livelihoods of creators.” WRONG! How is it that you publishers don’t understand that if you offered fair terms, your creators would get more digital money, if perhaps a bit less print money. We won’t spend less. We would move more funds to digital if it offered a better return. The established best-selling authors might see a bit less—but then, they may not need it as much as others—as we licensed more new, mid-tier, and especially diverse authors. The overall expenditures would remain the same. How is anyone’s livelihood threatened? Stop LYING to your authors. What about the sales they get through people discovering their books in libraries and from librarian recommendations. Why do so many new authors GIVE us books to boost recognition? The problem isn’t libraries. It’s YOU! Any author (or musician) who wants a truthful view of what you face, please read Chokepoint Capitalism by Rebecca Giblin and Cory Doctorow. Buy it if your library doesn’t have it (you’re welcome, PRH! And yes, I bought my copy.) The intersection of Amazon, the publishers, and authors makes for enlightening if depressing reading.

I could go on an on. There is so much in this benighted site that is so very wrong. Librarians, we have one good take-away: the publishers are NEVER going to come forward voluntarily for fair negotiation. They may have suborned their K-Street killer flunkeys to attack libraries in their stead, but this is them talking to you and saying all efforts to get fair prices will be fought. Let’s ramp up the state efforts. The legislators will know the truth when they hear it. In the meantime, federal Representatives and Senators, what happened to the Wyden/Eschoo inquiry into publisher/library vendor practices? A wealth of information is there so you to can see what is true. Has big publisher money/corporate pressure somehow bottled it up? Release the results!

Connecticut Introduces a Bill With A Difference

A hearing is scheduled tomorrow on Connecticut HB6800.

This bill is different from many others (and from another bill in Connecticut itself) in that it doesn’t mention license costs. The word "reasonable” is used twice but never about price. Instead, its aim seems to make the terms of licensing just a bit more favorable to libraries, bringing digital licenses more in-line with what we can do under traditional (print) lending.

https://www.cga.ct.gov/2023/TOB/H/PDF/2023HB-06800-R00-HB.PDF

Info Page

https://www.cga.ct.gov/asp/cgabillstatus/cgabillstatus.asp?selBillType=Bill&bill_num=HB06800&which_year=2023

Says one commentator, “The goal is to create an environment in which libraries have more ability to negotiate with vendors and in ways that are more favorable than we currently have.”

Do take a look at the bill itself, but here’s a quick gloss:

Ebooks must be able to be loaned through all legitimate platforms, including through ILL (though I'm not sure how that would be done via ILL outside of a platform like, say, Palace). Does this mean a digital version (say EPUB) could be transformed to plain text, for instance, and sent for a limited period through ILL? Interesting!

Ebooks may be loaned any number times if a time limit is placed on license (so, no more 2 years or 52 circ licenses);

Libraries may not be restricted from getting as many licenses as they wish on the day a title becomes available to the public (no "windowing, ala Macmillan);

libraries may make preservation copies (but no provision is made for future sharing of those copies—so if a title is licensed, could a preservation copy somehow be viewed after the license?);

libraries may discuss the terms of the license with other libraries (I like this one!--too often, we are prevented from sharing and so knowing what deals are being made);

So far, nothing too unexceptional, though some points will need clarification. One other point seems more radical: no provision may restrict "the duration of the license agreement unless the publisher has also offered the library a license agreement (A) based on a pay-per-use model, or (B) that provides for the perpetual public use of the electronic literary material upon commercially reasonable terms in consideration of the library's mission." Does that mean a license for, say, two years may not be in place unless a perpetual access license is also offered?

That's what it looks like to me. Ideally, it would lead to many options: metered by time at a lower cost, perhaps perpetual access at a higher one. Metered licenses only, unless very lower priced indeed and offered for a long time with the option to share after a title is no longer licensed, are no good for libraries.

So, unless a perpetual access license is also offered, a time metered one may not be or else the publisher may not offer licenses in Connecticut.

This last point is important. The AAP and various others will not doubt say this bill is unconstitutional and preempted because it restricts what publishers do. Nope. It doesn’t say the publishers must do these things. It only says that licenses that don’t allow for these things are not valid in Connecticut. The publishers can always choose not to license there.

RF wishes the Connecticut legislators well in their efforts to create a more fair and (yes!) reasonable library digital content experience.

Palace Marketplace Offers New Indie Titles

In a press release, the Digital Public Library of America (DPLA) notes that its Palace Marketplace is now offering some 300,000 “titles from Smashwords and Draft2Digital. At launch, all of these titles will be available with a perpetual one-at-a-time license, often at less than $10 per title, with more licensing options to be made available in the coming months. As an additional service to libraries, the DPLA Curation Corps of librarians will be preparing selections of recommended titles to help libraries quickly and easily identify titles appropriate for their collections. We expect to add hundreds of thousands of titles from Draft2Digital and other distributors over the course of the coming year.”

This is in addition to the 1.2 million Big 5 and hundreds of other publisher titles already available, not to mention being the only source for Amazon and Audible originals.

Perhaps the most exciting part of this news is the work of the Curation Corps. It will add another arrow to the digital librarians’ quiver already partially filled by the Indie Author Project. The Big 5’s licensing terms are making it very difficult for libraries, especially small and rural ones, to offer rich and sustainable digital collections. The pricing of Indie titles, especially under perpetual licensing, makes them a vital and excellent alternative, especially for libraries hoping to diversify collections. What we often lack are reviews. The volume of work is simply too great to know well. Current lists of worthwhile titles will help librarians to know what to get, what to feature on reading lists, what might make a great alternative to the increasingly costly best sellers, what might help readers learn to love new and previously undiscovered voices, perhaps even help those new voices become a best selling writers.

Indie, perhaps especially indie authors who are local, offer a great opportunity for libraries to be taste makers and even content creators, providing great reads at sustainable prices. Thanks DPLA! As always, thanks too to the Knight Foundation for the great support of the Palace Project.

Oral Arguments in the Publishers/IA Suit

Thanks to Gary Price of Infodocket for an early (near immediate) heads-up last week that the Hachette et. a. vs Internet Archive (IA) lawsuit is going to oral arguments in summary judgement.

Andrew Albanese has provided his usual good summary of events so far in Publishers Weekly. Start here if you are not familiar with all aspects of this nearly three-year-old case.

The arguments will begin on March 20 and could determine who wins. Cases of this sort are often initially decided in summary judgement, with one side or the other being declared to have the stronger case. In this instance, an appeal is almost certain, especially if the Internet Archive wins. With billions in corporate might behind them, and with licensing for every use rather than individual ownership of books (and practically everything else!) being a corporate dream, the (not-your-grandparents) publishers surely won’t stop with a loss.

Plantiffs in the case argue that “Since the purpose of copyright is to incentivize the creation of new works, authors and publishers – not IA – hold the exclusive right to publish their books in all formats. With briefing completed, the undisputed facts and settled law lead to the inexorable conclusion that IA’s practice of CDL [Controlled Digital Lending] is not fair use.” They argue that the IA is a commercial entity and would turn “copyright law upside down by allowing IA to convert millions of physical books into ebook formats and distribute them worldwide without paying rightsholders.”

The Defendants reply that the “the Internet Archive’s digital lending is a noncommercial service that expands the utility of physical books; and (2) that digital lending has not harmed Plaintiffs’ ebook rentals. All that CDL does, and all it can ever do, is offer a limited, digital alternative to physically handing a book to a patron. Libraries deciding how to meet their patrons’ needs for digital access to books are not making a choice between paying ebook licensing fees or getting books for free. Libraries pay publishers under either approach—but digital lending lets libraries make their own decisions about which books to circulate physically, and which to circulate digitally instead. That choice means that librarians can continue to maintain permanent collections of books, to preserve those books in their original form for future generations, and to lend them to patrons one at time, as they have always done. Above all, it means librarians can continue to advance the ultimate purpose of copyright: “the intellectual enrichment of the public.”

It is telling that both sides point to different visions of copyright’s purpose. Both sides are correct. Copyright does aim to reward creators but also “to promote the progress of science and the useful arts—that is—knowledge.”

The judge will need to determine if isolating physical copies and circulating the texts digitally (so that there is never more copies in circulation than the library legitimately owns) is a fair use or violation of copyright.

From a library perspective, the case is all but open and shut.

No doubt the publishers disagree.

The Internet Archive is a non-profit. It does not sell the books or charge for access. It and its partners own a print version of the books being loaned (disclosure—my library is an Open Library partner). No digital copy is circulated that could not have a print copy circulated in its stead. The creators/publishers have at some point been paid for every copy. Where in copyright does it say that the rights owners have to be paid for every use or, in the case of libraries and the Big 5, charged so much more for a digital license than for print that it is clear that copyright is being used to milk the public coffers in ways that print does not allow? Is it likely that Congress ever intended for libraries’ right to share digital to disappear every two years or 26 circulations, so that we must constantly relicense at usurious rates or lose access?

CDL does what libraries have long done: share and preserve content to foster life-long learning—”that is, knowledge. It isn’t and never has been for free. We pay. Authors and publishers benefit. Might they wish every read meant a sale? No doubt. But it has never worked that way before digital, suggesting that it is long past time to revise copyright laws for the digital age. CDL is one way libraries—or at least large and well-funded ones—can support our traditional mission now. Let us see what the judge says. But CDL is too valuable a tool for sharing and preservation for libraries—and the public who use us—to lose.

Thank you to the Internet Archive for fighting to keep access to books in the face of corporate overreach.

Connecticut and Hawaii Add Ebook Bills

In Hawaii, HB1412 has been introduced by Representative Jenna Takenouchi. Thank you, Rep. Takenouchi! The bill “Prohibits any contract or license agreement between a publisher and library in the State from precluding, limiting, or otherwise restricting the library from performing customary operational and lending functions; restricting the library from disclosing any terms of its license agreements to other libraries; and requiring, coercing, or enabling a library to violate rules regarding confidentially of a patron's library records. Deems contracts that contain prohibited provisions an unfair or deceptive act or practice and void and unenforceable.”

A look at the PDF shows that the bill, among many other things, would not allow a “library to acquire a license for any electronic literary material at a price greater than that charged to the public for the same item.”

The bill’s language is precise and well-drafted. Since it addresses how libraries may operate and does not restrict publishers from acting in general, it seems unlikely, at least to me, to be preempted by federal copyright. I’m not a copyright expert or attorney, however, so we’ll have to see how it plays out. A distinct lesson, however, has been learned from the Maryland lawsuit.

Connecticut has also joined, with the introduction of SB500. Thank you, Senator Hwang of the 28th District. This bill is brief but requires “publishers of electronic books to license such books to public libraries on reasonable terms.” RF is given to understand that this bill will be amended with much more detail in the days to come.

Virginia’s bill seems to have come a cropper already, not getting out of Senate committee. The bill was passed by “indefinitely,” and so it could be brought up again. It appears that one legislator, working with a library in the county, introduced the bill, but it was not then supported by the Virginia Library Association as a whole. It would be interesting to know why not. RF will try to find out. We can hope perhaps another bill is in the offing, though why this one couldn’t simply have been amended is a question worth asking.

For now, it’s good to see two more state trying to ensure fair library digital license terms for tax payers and promote reading in libraries. So, Massachusetts, Rhode Island, Connecticut, and Hawaii (now there’s a geographic spread!) have bills in place. Hoping for more . . . and for passage of these!

Virginia Introduces Ebook Legislation

Last Friday, a library digital content Bill was introduced in the Virginia Senate. Senate Bill 1528 would “amend and reenact § 42.1-10 of the Code of Virginia and to amend the Code of Virginia by adding a section numbered 42.1-33.1, relating to libraries; acquisition of books and other library matter; electronic literary material.” It was introduced on Friday by Sen. David Marsden.

Thank you, Senator Marsden, for your advocacy for Virginia library readers and Virginia tax payers!

The Bill is based on consumer protection and would prevent any “contract offered by a publisher to license any electronic literary material to a library” from containing “any provision that . . . 3. Requires a library to acquire a license for any electronic literary material at a price substantially greater than that charged to the public for the same item; or 4. Requires a library to pay a cost-per-circulation fee to loan any electronic literary material, unless substantially lower in aggregate than the cost of purchasing the item outright.”

The Fairfax County (Sen. Marsden’s district) legislative agenda suggests the legislation will “support reducing barriers to libraries acquiring eMaterials under reasonable terms and costs, as public libraries often pay prices substantially higher than what a consumer would pay for the same digital item.”

The point about pay-per-use is a nice touch.

Rhode Island, Massachusetts, and Virginia. Who’s next? Keep it coming! It’s a movement now.

Alan Inouye's Public Policy and Advocacy Updates for This week

A number of matters Mr. Inouye mentions are of special interest to libraries involved with digital:

POLICY & ADVOCACY UPDATES

>> Continuing:  Please sign up for the Unite Against Book Bans campaign if you or your organization has not yet done so. Many have joined but many have not.

https://uniteagainstbookbans.org/

Book Bans, Libraries, and the Law: Standing Up to Library Censorship in Louisiana and Beyond--

https://twitter.com/UABookBans/status/1614105043711442944

Hammer, Vise, Lever: Better Tools, Stronger Advocacy--

https://www.eventscribe.net/2023/LibLearnX/index.asp?presTarget=2245431

>> Upcoming:  ALA offers webinars on new federal resources for sustainable library buildings on February 1-2

https://www.ala.org/news/member-news/2023/01/ala-offers-webinars-new-federal-resources-sustainable-library-buildings

ALA applauds passage of FY 2023 federal budget, key increases in funding for libraries

https://twitter.com/LibraryPolicy/status/1606367186695618579

https://www.ala.org/news/press-releases/2022/12/ala-applauds-passage-fy-2023-federal-budget-key-increases-funding-libraries

ALA Opposes North Dakota HB 1205, which would prevent libraries from meeting the information needs of their communities and would violate the rights of North Dakota readers. ALA submitted testimony.

https://www.oif.ala.org/american-library-association-opposes-north-dakota-hb-1205/

ALA President Lessa Pelayo-Lozada is interviewed by Teen Vogue, about book banning and libraries

https://twitter.com/ALALibrary/status/1604894079397072904

ALA joins EFF’s brief to the U.S. Supreme Court to protect Section 230 liability protections. “Increasing online platforms’ liability for hosting users’ speech would lead to severe censorship that could undermine the very architecture of the free and open internet.” “Online platforms” would include library services.

https://twitter.com/AlanSInouye/status/1616358961904750594

https://eff.org/press/releases/ff-warns-supreme-court-users-speech-stake-when-increasing-platforms-liability

Kent Oliver and Sara Benson named as senior fellows of the ALA Public Policy and Advocacy Office. Kent will work on book banning, censorship, and the Unite Against Book Bans campaign with the ALA Policy Corps. Sara will work on ALA’s strategic directions for digital copyright and licensing.

https://www.ala.org/news/press-releases/2023/01/ala-public-policy-and-advocacy-office-names-kent-oliver-sara-benson-senior

Amber Gregory of the Arkansas State Library has been re-appointed to serve on the board of the Universal Service Administrative Company, the organization that runs the E-rate program on behalf of the FCC. ALA formally recommended Amber’s reappointment.

https://twitter.com/LibraryPolicy/status/1611063706154332161

https://twitter.com/AlanSInouye/status/1586818118848241666

ALA submitted comments to the FCC on Expanding Use of the 12.7-13.25 GHz Band and focusing on considerations of diversity, equity, and inclusion

https://www.fcc.gov/ecfs/document/1011004227779/1

REPORTS AND ARTICLES

Sen. Susan Collins (R-Maine) visits the Patten Library in Maine to celebrate a $3.9 million grant in the FY23 appropriations package to support the construction of a new library building.

https://twitter.com/AlanSInouye/status/1612979023574958081

AFT New poll: Voters prioritize school basics over culture wars

https://www.aft.org/news/new-poll-voters-prioritize-school-basics-over-culture-wars

Libraries from my recent trip.  Luang Prabang, Laos public library; National Library of Thailand; Bangkok City Library.

https://twitter.com/AlanSInouye/status/1606797955448864769

https://twitter.com/AlanSInouye/status/1610255024634073088

https://twitter.com/AlanSInouye/status/1605842765291610112

Webinar of Interest

With libraries across the country striving to deliver robust and cost-effective digital content offerings to patrons, the fifth in our series of Collaborating for Access webinars, presented with COSLA and ReadersFirst, will look at digital access success stories. We'll hear short presentations from a variety of our colleagues who have found innovative ways to increase access for patrons, followed by a Q&A session.

Speakers will include:

Lila Bailey, Internet Archive

Brad Bullis, Connecticut State Library

 Maria Bustillos, Popula

Anne Fonteneau, Blackstone Publishing

Jamie Joyce, Internet Archive

Amy Mikel, Brooklyn Public Library

 Miriam Tuliao & Georgia Westbrook, DPLA Curation Corps

Time

Feb 7, 2023 03:00 PM in Eastern Time (US and Canada)

 Register here.

 Hope to "see" you there!

Massachusetts (Re)Joins the Effort

On Friday January 20th, Ruth Balser of the 12th Middlesex district filed “An Act empowering library access to electronic books and digital audiobooks.”

So, Rhode Island now has company and two states are showing the bravery that characterized the Tea Party (in Boston Harbor, not the more recent and very much less illustrious political movement) and the American Revolution.

The bill is different than most previous library ebook legislative efforts and is likely to have benefitted from the expert advice of Mr. Kyle Courtney.

It is ultimately based on protections the state offers to consumers.

RF might have preferred to see some link of digital to print costs rather than saying a license may not require a library to pay “for any electronic literacy material at a price greater than that charged t the public for the same item.” These are books. Publishers should charge as if they were. Consumer digital is aimed at one person; some judge ight be sympathetic to publishers over the difference.

RF might have liked to see a limit placed on the definition of publishers to include those grossing over a certain sum a year in sales. We’re not after the little ones or the self-published (though the definition of publishers in the bill is likely to exclude self-publishing any way).

But this is to pick nits a little ignoble—for the bill is bold, cogent, and important. Love its provision that libraries can’t be restricted from talking about what we pay for licensing from publishers/vendors. That anti-competitive restriction needs to be rejected in every state. The part about severability—if one provision is ever struck down, the rest still stand—is important for all state efforts as well.

There is much here for other state efforts to learn from. Thank you, Ms. Balser! When this bill passes, libraries not only in Massachusetts but EVERWHERE will owe you a debt of gratitude.

The bill has a risk. What if a publisher decided it will simply not deal with Massachusetts at all, forgoing licenses to everyone there rather than negotiate contracts that we would all learn the terms of? That’s where EVERYWHERE comes in. Librarians, be prepared to stand with Massachusetts! For now is the time for every librarian to come to the aid of the profession!

Guest post: OverDrive magazines no longer offers The Economist

Thank you to Carmi Parker for sharing this news with RF:

OverDrive libraries that offer digital magazines learned this week that OverDrive has decided no longer to offer The Economist. For many libraries and consortia, The Economist is the most popular of the digital magazines OverDrive offers. In 2022, it represented 5% of the magazine circ at the Washington Digital Library Consortium (WDLC), which serves 830,000 residents through 45 libraries in Washington State. WDLC plans to request a content credit proportional to circ (5%). We hear through the grapevine that at least one other library has requested a credit and been successful.

We understand that it is the publisher in this case who no longer wants to offer The Economist to libraries on the standard magazine terms and that OverDrive, as the distributor, is simply complying with their requirements. However, WDLC renewed its 12-month digital magazine license in early January and we do not feel it is appropriate that either the publisher or the distributor be fully remunerated with public funds for popular content that will not be available for 11 of those 12 months.

There is a larger issue here with the arbitrary nature of current license agreements, which allow publishers and/or distributors to remove content at will. When libraries license something for a specific term, such as 12 or 24 months, then the content associated with that license should be available for the duration of the term, or libraries should be credited with funds. Merely substituting other titles to make up for the loss of the originals is not acceptable.