IA Appeals Recent Legal Ruling. What Might We Hope and Fear For?

The Internet Archive has announced its appeal of the Hachette vs. Internet Archive case.

The Internet Archive’s Chris Freedland posted thusly: “As we stated when the decision was handed down in March, we believe the lower court made errors in facts and law, so we are fighting on in the face of great challenges. We know this won’t be easy, but it’s a necessary fight if we want library collections to survive in the digital age.”

IA Founder Brewster Kahle adds “Libraries are under attack like never before. The core values and library functions of preservation and access, equal opportunity, and universal education are being threatened by book bans, budget cuts, onerous licensing schemes, and now by this harmful lawsuit. We are counting on the appellate judges to support libraries and our longstanding and widespread library practices in the digital age. Now is the time to stand up for libraries.”

With publishers pursuing the suit even after the IA dropped the National Emergency Library, which did not strictly adhere to Controlled Digital Lending (CDL) parameters, it seems clear that the suit is all about CDL. The publishers are driven by money—not that authors always benefit—and ensuring that licensing is THE (only) way digital is used in libraries creates more revenue than allowing libraries some of the rights they have with print. CDL after all is an arguably legal way to get the right to share digital titles as if they were print, one person at a time.

The surprise—unpleasant for the publishers—is that the recent ruling allows for CDL as long as a print title does not also have a digital version for license.

The problem is that this “allowed” CDL use is a technicality of sorts. The judge said that the suit as presented only allowed a ruling on the digital titles.

Expect the publishers, either in the appeal or in some other suit, to challenge this use, even though a library digital copy of a print book—especially of one out-of-print—costs them no revenue if shared via CDL.

We can hope that a different judge will consider this part of the copyright law: “Congress shall have Power . . . To promote the Progress of Science and useful Arts.” Digital copyright is seriously unbalanced against libraries and the greater public weal. If so, the IA has a chance in their appeal, asking to do what libraries can do in print: share fairly acquired texts fairly.

We must hope that even if the IA doesn’t carry the day completely, that print books without digital versions somehow remain allowed under CDL. Libraries can already create digital copies for preservation, but what good are those copies if they can’t be shared? This is to doom many works to oblivion simply because the publishers see no commercial value in them. Keeping digital copies around until the works eventually become fair use is not a viable option.

Doesn’t this use seem a fair compromise? Oh well, don’t expect to see it become law under the current makeup of Congress, with too many legislators looking out for corporate rather than human welfare. (And no, corporations are not human nor “people.”)

There is much to fear: losing CDL, a valuable tool and one of the few ways we can hope to preserve and share sustainably, especially as copies of print works invariably become fewer and fewer and ultimately too rare or valuable to share via traditional interlibrary loan.

Libraries really can’t survive without some sort of publishing industry. We might wish for some dialog. But that would be a foolish wish in a time when industry after industry wants to destroy ownership and promote licensing. Wishing for better from their publishing partners in advancing literacy then—for aren’t we one the same team, in the end?—RF wishes that libraries will support the IA and CDL and fears only our silence in the face of vast corporate power and wealth. Stand up for our library users. Stand up for ourselves.

Alan Inouye's September 4th Policy and Advocacy Updates

ALA Senior Director, Public Policy & Government Relations and Interim Associate Executive Director Alan Inouye has provided some useful updates, many of them centered on intellectual freedom. The temporary injunction of Texas HB900 is important news—let’s hope that the injunction becomes permanent and appeals are quashed. The dubious constitutionality of government acting as de facto censor under hopelessly vague standards and operating under prior restraint are bad enough, never mind the crushing burden placed on publishers and book sellers.

POLICY & ADVOCACY UPDATES

 -- Continuing:  Join the Unite Against Book Bans campaign. Tell your friends and colleagues.

https://uniteagainstbookbans.org/

-- Upcoming:  September 19 is National Voter Registration Day. Your library can participate. ALA is a Premier Partner of NVRD.

https://twitter.com/LibraryPolicy/status/1692616793989304354

Post-Conference Debrief with ALA’s Public Policy and Advocacy Office.

https://publiclibrariesonline.org/2023/07/post-conference-debrief-with-alas-public-policy-and-advocacy-office/

              Highlights from the Rally for the Right to Read at 2023 ALA Annual Conference:               https://twitter.com/UABookBans/status/1679960763367055360

 Ninth Circuit Affirms the Server Test in Hunley v. Instagram. ALA was part of an amicus brief led by EFF. Our counsel Jonathan Band explains in this article:

https://www.project-disco.org/intellectual-property/ninth-circuit-affirms-the-server-test-in-hunley-v-instagram/

 Unite Against Book Bans (UABB) campaign recent partner posts:

People for the American Way: https://uniteagainstbookbans.org/grandparents-for-truth-mobilizes-against-book-banning-and-censorship/

American Federation of Teachers:  https://uniteagainstbookbans.org/reading-opens-the-world/

Authors Guild: https://uniteagainstbookbans.org/freedom-to-read-write/

National Coalition Against Censorship: https://uniteagainstbookbans.org/some-good-news-for-a-change/

ALA, ATALM applaud FCC Report and Order to support Tribal, small and rural library E-rate applicants

https://www.ala.org/news/press-releases/2023/07/ala-atalm-applaud-fcc-report-and-order-support-tribal-small-and-rural-library

https://twitter.com/LibraryPolicy/status/1682139417299894272

 ALA joined Coalition Letter (led by New America Foundation) to FCC Chairwoman Rosenworcel Urging Final Rules for 6 GHz that Avoids Creating a “Wi-Fi Digital Divide”.

https://twitter.com/AlanSInouye/status/1688895635968135168

              and ALA joined an earlier letter on unlicensed spectrum:

              https://twitter.com/MCalabreseNAF/status/1687174891571965952

ALA via the Library Copyright Alliance submitted comments for the 2024 AGOA Eligibility Review for South Africa Post-Hearing.

https://twitter.com/AlanSInouye/status/1689416999317684226

 "Public libraries are the latest front in culture war battle over books" in the Washington Post features Lisa Varga, Exec Dir of Virginia Library Association and member of the ALA Policy Corps.

https://www.washingtonpost.com/dc-md-va/2023/07/25/library-books-bans-lgbtq-virginia/

https://twitter.com/AlanSInouye/status/1683971898181394433

Freedom to Read Foundation and AASL joined an amicus brief against HB900--which has been blocked by a federal judge (preliminary injunction):

https://twitter.com/AlanSInouye/status/1692359434427613508

 Former President Barack Obama asks you to join the United Against Book Bans campaign

https://twitter.com/BarackObama/status/1680928209183932418

 ALA endorses three nominees for the FCC and urges swift confirmation

https://twitter.com/AlanSInouye/status/1679241165340549123

NEWS & ARTICLES

Sen. Reed tweets out Library Card Sign Up Month

https://twitter.com/SenJackReed/status/1697600091907928474

Collaborating for Access: Librarians and Independent Publishers

Collaborating for Access: Librarians and Independent Publishers

Thursday, October 5, at 2p ET

What do librarians REALLY want from publishers, and how can smaller and independent publishers create a better ecosystem? In our sixth Collaborating for Access webinar, COSLA, DPLA, and ReadersFirst are partnering with the Independent Publisher Caucus to bring together librarians and smaller and independent publishers to explore how they can work together to provide greater access for patrons. Topics will include: Opportunities for independent publishers in the library market; licensing options that are most attractive to libraries; and ways that libraries and independent publishers can work together to mutual benefit.

Please register here.

This session is open to all.  Please feel free to share this invitation forward with anyone who might be interested.

Some clarifications on the Publishers v. IA case

Chris Freeland from the Internet Archive (IA) has blogged on “What the Hachette v. Internet Archive Decision Means for Our Library.” The post is worth a read, but here’s a short summary with a few comments. Its tone is measured, distinguishing it from the crowing that as usual characterizes comments from the AAP, where ne’er a chance to bloviate is ever missed. Those people really should learn about Magnanimity in Victory. In any case, as we shall see, the judgment undercuts their cackling and chortling considerably. Perhaps they won’t be so jubilant when the appeal moves beyond the district court level.

So, what does the judgement mean:

  • It only concerns lending of digitized books via Open Library. So many IA services remain: Interlibrary Loan, creating accessible formats for the print challenged, quoting short passages, digitizing books for preservation (which copyright allows), and government document sharing

  • Out-of-copyright/public domain works are excluded and can be shared..

  • Perhaps most importantly, books that do not have a commercially available digital version are not covered—only books that do.

So, while publishers may now work to have many books with commercial digital equivalents removed from the Open Library, millions will remain untouched—good news for readers and libraries and for preservation. There is simply too much danger that books without commercial value to the publishers—as if that were the only way to judge a book’s worth!—will, even if digitized for preservation, be inaccessible to readers.

The end result of the suit, then, is surely not the complete triumph that the plaintiffs sought. Even so, the ruling seems to continue the slide towards the mistaken imbalance in copyright’s intent we are seeing in the digital era, when publishers want all reading to be licensed for their continuing control to prevent sharing and for their perpetual profit with every read, ignoring the need to “advance knowledge” and the public’s needs. If copyright laws were to be drafted today, one suspects they would fight the long-existing right-of-first sale with every weapon they had. It certainly seems likely that even if the IA were not going to appeal, the publishers would launch another suit to have the digital scan of every book that is not in the public domain removed.

Mr. Freeland concludes “Libraries are going to have to fight to be able to buy, preserve, and lend digital books outside of the confines of temporary licensed access. We deeply appreciate your support as we continue this fight!” The Internet Archive is going to appeal this ruling. Readers, and libraries, should cheer on this fight for controlled digital lending: one of the few tools we have, and should have, to share digital fairly in a time when big publishers prices are unsustainable and Congress seems too indifferent, too cowed—or is it, too bought off?—to create fairer copyright.

Big 5 License Terms as of July 2023

Michael Kozlowski from Good e-Reader has published a list of the license terms the Big 5 publishers offer to libraries through OverDrive.

The list is comprehensive and welcome, and we are glad for it.

There are, however, some misleading statements—not deliberate but notable—and quite a few devils hiding in the details

First, the Big 5 do not SELL ebooks to libraries. Not one. Libraries do not own title one from the Big 5. We license them. And that makes all the difference in the world for cost, depth and breadth of collection, and preservation. Nobody should ever use the word “sell” in a sentence combining “Big 5” and “library ebooks.” This is not nit-picking. It is the essence of the problem.

Second, while the data comes from OverDrive and hence OverDrive features large in the article, other vendors offer the same terms and at least one, Palace, has worked far more deals for different models, including as many as 5 options at once per title, than OverDrive ever has. A focus on a vendor so large that it is essentially a monopoly is no favor to libraries.

This variety of licenses is welcome—it allows libraries to make best use of their limited funds. Not even a very well funded system like Toronto, as Mr. Kozlowski mentions, can meet ebook demand. The minimum options from every publisher—assuming we set aside for now the option to purchase, which only federal mandate would get us from the Big 5—should be dual: a perpetual access license and a metered access license at a lower cost. We could get a few for long-term access, so we didn’t have to get them again and again and %$#! again, and use metered to better meet high initial demand. Only this will change the current unsustainable situation. Well, things would be better if fair prices were charged. Then license models wouldn’t matter . . . well, except that we can guarantee that libraries will lose license access once a book loses market value to the publishers, so perpetual or CDL must be an option. But fair prices are an impossible dream unless we get some government action. Of the Big 5, only Penguin Random House, and only in one format (audiobooks) offer a one-year license and a perpetual one copy-one user. Thank you, PRH—genuinely! It really is helpful. Um, ever thought of it for ebooks too?

But wait, it might be objected, we are ignoring all the pay-per-use options. Aren’t they helpful? More devils hiding: they are often only for backlists and can be budget busters. Eleven uses of a PRH audiobook, for example, is more expensive than a perpetual license. Some details about costs would give the public a better understanding of what’s going on.

The focus on only Big 5 titles is unfortunate. Medium and smaller publishers are often offering better deals on quality reads. It is also unfortunate that to many librarians, instead of offering variety, load up based on patron demand instead of curating and explaining that high-demand titles will involve a long wait. It’s their choice, of course; however, without rewarding the publishers giving us fair prices and withholding from those that do not, we will see only the Big 5 feasting at the public trough.

Just one more of the many devils hiding. From print jobbers, libraries often get great discounts on, say, hardcovers. 40 to 42% off are common. What standard discount does OverDrive offer? License at publisher wholesale and license back to libraries is a great business model. Great for business, that is, but not for libraries. More feasting at the trough.

Yep, there are the Big 5 license terms for 2023. Read ‘em and weep.

If your state doesn’t have an ebook bill in place or planned, working to have a start on laws that will make a difference, why not? Aren’t you tired of the corporate feast on public funds . . . and of the rip-off on digital costs?

DPLA launches The Banned Book Club to ensure access to banned books

A press release from Digital Public Library of America (DPLA): RF thanks DPLA for taking a risk to promote the freedom to read in a time that it is under assault. This is another step in clapping back against organized and authoritarian efforts to suppress other views, especially the black and gay experience. Together we can win through for basic democratic values, but it will require work. Please fight with and for your library.

Readers in communities affected by book bans can now access banned books for free via Palace e-reader app

Digital Public Library of America (DPLA) has launched The Banned Book Club to ensure that all readers have access to the books they want to read. The Banned Book Club makes e-book versions of banned books available to readers in locations across the United States where titles have been banned. The e-books will be available to readers for free via the Palace e-reader app.

“At DPLA, our mission is to ensure access to knowledge for all and we believe in the power of technology to further that access,” said John S. Bracken, executive director of Digital Public Library of America. “Today book bans are one of the greatest threats to our freedom, and we have created The Banned Book Club to leverage the dual powers of libraries and digital technology to ensure that every American can access the books they want to read.”

Utilizing GPS-based geo-targeting, DPLA has established virtual libraries in communities across the United States where books have been banned. When a reader is within a community served by a library that has been forced to ban a book, they can visit TheBannedBookClub.info to see the exact books have been banned in their area. Then, they can download that book for free on any handheld device via the free Palace e-reader app.

Earlier today former president Barack Obama and the Obama Foundation shared their support for the Banned Book Club initiative and its mission to provide individuals with the power and access to obtain literature that is thought-provoking, educational, and eye-opening, allowing them to learn more about the world. Their support will help to expand awareness of how people can access banned books within their communities and connect people through literature.

To access The Banned Book Club now, download the Palace app and choose “Banned Book Club” as your library, then follow the prompts to sign up for a free virtual library card. For more specific instructions, click here. For more information on The Banned Book Club, readers can visit TheBannedBookClub.info.

Digital Public Library of America amplifies the value of libraries and cultural organizations as trusted sources of shared knowledge. DPLA fulfills itsmission by collaborating with partners to accelerate the adoption of innovative tools and ideas to empower and equip libraries in making public information more accessible. DPLA’s e-book work is supported by the John S. and James L. Knight Foundation and the Alfred P. Sloan Foundation. To learn more, visit www.dp.la.

The Palace Project is a suite of content, services, and tools for the delivery of ebooks, audiobooks, and other digital media to benefit public libraries and their patrons. Funded by a multi-year, multi-million dollar investment from the Knight Foundation, The Palace Project is a division of Lyrasis, working in strategic partnership with Digital Public Library of America (DPLA). To learn more, visit thepalaceproject.org.

ALA Shares News Of President Obama's Support For Libraries

From ALA Senior Director, Public Policy & Government Relations Alan Inouye:

President Barack Obama published an open letter to librarians this morning, expressing his support for libraries and library workers amidst rising book challenges and subsequent attacks on those defending the right to read. His letter was shared online and across his social media pages (in addition to the social media accounts for Michelle Obama and the Obama Foundation), with a note directing followers to the Unite Against Book Bans website and encouraging support for the campaign.

 See links to the social posts below.

President Obama:

Instagram

Facebook

Twitter

 

The Obama Foundation:

Instagram

Twitter

 

To ensure that the letter would reach its intended recipients, President Obama’s team requested that we share the letter with the ALA community. You’ll notice that the letter has been amplified across ALA’s social media pages and shared via American Libraries: Open Letter from Former President Obama Supports Librarians | American Libraries Magazine

Also, ALA contributed to this exclusive story in the Washington Post this morning, which highlights the recent increase in book bans/challenges and President Obama’s efforts on social media (particularly, TikTok and Instagram) to bring awareness to the issue in hopes of rallying support for libraries and library workers.

In a time of unprecedented challenge from well-organized and funded (and “astroturfed” rather than grass roots) groups, every voice raised clapping back is important. Thank you, President Obama, for your passion and wisdom in support for the most fundamental of American rights.

ALA Annual Ebook Friday Update

Here’s a still tentative (people are very busy!) agenda for ALA Ebook Friday. If you are coming to the ALA Annual Conference, please consider joining us!

Ebooks Interest Group

Friday, June 23, 2023 10:00 AM – 4:00 PM CT

Location: Hilton Chicago, International South (Note-about 1.5 miles from the Conference Center)

 

10-10:45:  Librarian/publisher meeting (we are inviting various publishers to attend to discuss any new developments, hear librarian concerns, and answer--respectful, please!--questions)

·         Claire Kelley, Seven Stories

·         Craig Mears, Blackstone Publishing

·         Adam Silverman, Harper Collins

 

10:45 – 11:15 CDL, Internet Archive, Legislative Updates

·         Chris Freeland

·         Kyle Courtney and/or Juliya Ziskina

 

11:15 – 12:15 Lightning Round (Hear from shakers and movers about various projects)

 ·         Every Library, John Chrastka 

·         Library Futures, Jennie Rose Halperin or Michelle Reed

·         Hold Ratio Models, Carmi Parker [Zoom]

·         A publisher that sells ebooks to libraries, Maria Bustillos [Zoom]

·         Canadian Updates:

   VPL Initiative

  Joint Task Force on eBook Sustainability for Libraries

·         Legislative Initiatives: Stacey Aldrich, State Librarian of Hawaii

·         ULC: Shari Henry, Director of Democracy and Community Impact

·         COSLA:  Karen Mellor, Chief of Library services Rhode Island

·         ReadersFirst: Publisher Price Watch (Michael) 

 

12:15- 12:45:  Palace Update, Micah May

 

12:45 – 2:00: Lunch (not provided--we're leaving time enough to go out)

 

2:00-3:00:  Banned Books-the digital response: An exploration of Brooklyn and Seattle Public’s "Books Unbanned" project, efforts to ban digital versions of books, and a discussion of how to help, Amy Mikel and Andrew Harbison

 

3:00 – 4:00 Free time:  make connections, chat with friends

 

Library Futures Learning Circle on June 8

Our friends at Library Futures are hosting an Ebook Legislation Learning Circle:

You know the problems with ebooks and libraries, but maybe you struggle with how to solve them. Our latest Learning Circle is here to help! Join experts Kyle Courtney and Juliya Ziskina on June 8 to learn more about how state level legislation can help make ebooks fairer for libraries. Our Learning Circles are limited to 40 participants, so sign up today!

Register now

Should be worth a look!

Important News from Florida and Support the Right to Read Act

On May 16th, Pen America, Penguin Random House, and a group of authors and of parents sued the Escambia County School District and its School Board for removing or restricting books in the schools.

The suit charges that they “have done so based on their disagreement with the ideas expressed in those books. They have repeatedly ignored their existing policies for review. In every decision to remove a book, the School District has sided with a challenger expressing openly discriminatory bases for challenge, overruling the recommendations of review committees at the school and district levels. These restrictions and removals have disproportionately targeted books by or about people of color and/or LGBTQ people, and have prescribed an orthodoxy of opinion that violates the First and Fourteenth Amendments.”

In a press release, Pen America notes that the “lawsuit brings together authors whose books have been banned, parents and students in the district who cannot access the books, and a publisher in a first-of-its-kind challenge to unlawful censorship.” It adds “the school district made clear that its interests are in censoring certain ideas and viewpoints, not pedagogy, and that it is willing to allow an extremist minority to substitute its political agenda for the judgment of educators and parents.”

Pen America certain has a talking point. Most bans were instigated at the behest of one person, Vicki Baggett, even though she was not familiar with many of them and based her complaints on information gleaned from far-right leaning websites linked to the ultra-conservative group Moms for Liberty.

Ms. Baggett is of course welcome to express her views, but it is damnable that one person can determine what other people’s children get to read, and even more so that the Board chose to ignore the school’s own experts, with “instances in which the School Board rejected a challenge from Baggett, despite the transparently ideological nature of her challenges. Indeed, the School District and School Board have consistently acceded to, and ratified, Baggett’s blatantly political and message-based objections.”

RF is stepping outside its usual digital content focus to thank Pen America and PRH (yes, even though we usually slag them for their digital content prices), and the authors and parents for their courageous opposition to the narrow-minded and rigidly orthodox agenda being set by Governor DeSantis and, alas, followed by too many school districts. But then, as OverDrive found out in Llano, Texas, it is possible for censors to shut down public library access to thousands of digital titles in one fell blow. We cannot have fair access, print or digital, if censors hold sway. Every librarian has reason to advocate against a organized, well-funded, and ill-advised movement hiding under the guise of protecting children but really pushing a reactionary ideology.

Thanks, too, to the authors joining the suit are Sarah Brannen, David Levithan, George M. Johnson, Ashley Hope Pérez, Kyle Lukoff. RF encourages purchase/license and heavy promotion of their works.

Let us hope that this is but one more legal pushback against the banners and that it meets with same success that the suit in Texas that restored books to Llano’s public library.

Why not take a stand yourself? If you haven’t yet, join the ALA-sponsored advocacy for the Right to Read Act:

Last week, Senator Jack Reed (D-RI) and Representative Raúl Grijalva (D-AZ-03) re-introduced the Right to Read Act in the House and Senate to protect our school libraries from censorship and disinvestment.

Click below to tell your members of Congress to support school libraries, then share this action with your community:

Tell Congress: Protect School Librarians, Protect Kids

This legislation has a long way to go, but if passed could be a huge step against the book-banning movement. The Right to Read Act would:

Protect the Constitutional rights of students to access information in school libraries

Extend liability protections to teachers and school librarians

Authorize $500 million in Comprehensive Literacy State Development Grants and $100 million for Innovative Approaches to Literacy Programs to help provide needed literacy resources and build strong and effective school libraries