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Lessons From the Siege

Last Updated on October 23, 2012, 3:14 pm ET

At last year’s Fall Membership Meeting of the Association of Research Libraries here in Washington, D.C., the refrain was, “libraries are under siege.” Copyright litigation against libraries was proceeding on several fronts, and the rejection of the Google Books settlement had library directors worrying about the next shoe to drop.

Castle siege

What a difference a year makes. In May the federal district court in Atlanta gave a decisive victory to Georgia State University (GSU) in the lawsuit over its electronic course reserves. (Read my summary of the holdings in the case here (PDF).) On October 3, a court in California dismissed for the second time a complaint against UCLA over streaming video. Then, on the opening night of this year’s ARL Fall Meeting, came the coup de grace: Judge Harold Baer of the Southern District of New York handed down a sweeping victory for the HathiTrust and its partner libraries, which had been sued for their mass digitization of library books. (ARL is hosting a free webcast about the case tomorrow, featuring four attorneys directly involved in the case.)

It seems that, in literally every corner of the US, courts are siding with libraries as they work in good faith to bring their collections and services into the 21st century. The siege appears to be lifting, or at least on hold pending any (misguided) appeals. This is a good time to pause with the advantage of hindsight and ask what was really going on in these cases, and what lessons we can learn from the trials.

The most important lesson for the antagonists in these cases is that it’s time to stop looking to libraries for a copyright windfall. In every one of these cases the plaintiffs were looking to profit on content that libraries had already purchased, and from library programs that did not require a license. It’s time to give up on what seems to be an obstructionist, backward-looking strategy and focus instead on adding value for libraries and their users.

These lawsuits were wasteful because the plaintiffs generally had little or nothing to offer to libraries as an acceptable substitute for the supposedly infringing uses they sued over. Every time the trial courts looked at the market realities in these cases, they found that libraries were using technology along with lawfully purchased collections in order to fill a need that markets could not, would not, or should not meet. The plaintiffs expected libraries to do all the work of making valuable new uses of collections materials, and then pay for the privilege. As Duke University Scholarly Communications Officer Kevin Smith has explained persuasively, these plaintiffs have fundamentally misunderstood the Copyright Act as a blanket entitlement to profit from any activity that involves books or videos, without regard to the consequences for society at large.

For example, information disclosed at trial in the GSU case shows that publishers often withhold licenses to use digital excerpts, partly in hopes that students might have no choice but to purchase an entire book in order to read a few relevant pages. One of the reasons many of the GSU uses were found to be fair was that the excerpts assigned were often not available for licensed use in the appropriate format. Even where licenses are available, Judge Evans observed in her decision that licensing agents like the Copyright Clearance Center (CCC) don’t sell actual content or technological services; they only sell permissions. Libraries who pay CCC’s fees still have to find and digitize material from their own collections, and mount the digital excerpts on their own platforms. The ultimate irony is that it was made clear at the GSU trial that if course reserves were to require a fee, faculty would simply stop using them. But Oxford University Press, Cambridge University Press, and SAGE (with funding from CCC and the Association of American Publishers) were still willing to sue.

Similarly, the court in the HathiTrust case found that there simply was no workable market for the mass digitization uses that the libraries had made, and that, in any event, fair use would not allow the formation of a market to extract payment for such socially valuable, transformative uses. And, again, the Authors Guild and the other plaintiffs had made no effort to enable libraries to embark on mass digitization projects. It is unlikely the plaintiffs have the ability to authorize such a project, as they represent a tiny minority of authors of library collections materials, and they may not even possess the necessary rights. (Once they get past these lawsuits over digitization, there will surely be more litigation over whether authors or publishers are the owners of the right to authorize ebook publication.) These plaintiffs don’t seem interested in providing libraries with any kind of service or solution to make books searchable or accessible to the print-disabled, so why should they profit when libraries take on these transformative tasks?

The UCLA case is a bit of an outlier, here, in that one of the plaintiffs, Ambrose, claimed to offer a streaming video product that would be cheaper and more useful than UCLA’s homegrown solution. However, it turned out that Ambrose had already sold UCLA the right to stream the films when it sold UCLA the DVDs long before it began to offer its own streaming service. That fact makes this an especially vivid case of double dipping. In any case, the market is a better judge of value than the courts; if Ambrose has a fantastic and affordable streaming service, libraries who need it are sure to sign up. If the product has disappointing sales, they should invest in improving it, rather than investing in legal fees to sue libraries.

In general, rather than sue to shut down or monetize library services they cannot or will not provide, the plaintiffs should refocus their energy on publishing and selling useful new content and services that libraries will want to buy. Libraries spend many millions of dollars every year acquiring content and services for their users. Collectively, ARL libraries spent over $1.4 billion on library materials in 2010-2011, about $12 million per library on average. That money is significant, but as Penn State Associate Dean for Research and Scholarly Communications Mike Furlough pointed out at a recent meeting of the AAUP, it is not infinite: every dollar libraries are forced to spend defending frivolous lawsuits and paying for fair uses of works they already own is a dollar they cannot spend on new books, serials, videos, and services. The courts in these cases recognized that imposing such a needless tax on educational use is contrary to the purpose of copyright. Everyone would be much better off if those suing libraries would return to copyright’s constitutional design: profiting by promoting, rather than halting, progress in science and the useful arts.

The lesson for libraries is equally important: there is a critical need to stand up, and be united, in defense of your rights. For years rightsholders relied on the uncertainty around copyright to force individual libraries into settlement agreements without having to actually win a court case. Libraries were worried that even if their work is fair and socially beneficial, the Copyright Act might not give them the tools they need to defend themselves. Multiply that uncertainty by the potentially dramatic statutory damages in the law and the cost of defending a lawsuit, and you can see why even a library that believed its activities were perfectly reasonable might nevertheless agree to curb them in deference to an assertive plaintiff. Many libraries were effectively intimidated before GSU, UCLA, and HathiTrust (together with several HathiTrust members) tested their claims in court.

The #librarianscode

In addition to those three brave stands, the community collectively stood up for its rights with the publication earlier this year of the ARL Code of Best Practices in Fair Use for Academic and Research Libraries. That document has since been endorsed by a wide variety of library and academic groups, including the American Library Association, the Association of College and Research Libraries, the Music Library Association, the Visual Resources Association, the Art Libraries Society of North America, and the College Art Association. As I’ve noted on this blog, the GSU and HathiTrust cases both offer further confirmation of the consensus in that document. Academic and research libraries around the country have already taken the Code as a new standard for their practices. I believe libraries have happily learned the lessons of this exciting year. It remains to be seen whether the plaintiffs will get the message.