Thread by @KyleKCourtney

With the #ControlledDigitalLending #CDL case coming on Monday (3/20) @jziskina and I are excited to announce the release of “The Publisher Playbook: A Brief History of the Publishing Industry’s Obstruction of the #Library Mission.” [link at end of thread] /1

The purpose of this paper is to outline the legal & other obstructions that #libraries have encountered from the publishing industry. Libraries have continued to perform their routine activities or made advancements to increase #access to the public in innovative ways... /2

...yet, #libraries and their readers have routinely engaged in lengthy battles to defend the ability for libraries to fulfill their mission and serve the #publicgood.

The struggle to maintain the #library’s #access-based mission and serve the #publicinterest began as early as the late 1800s and continues through today. We call these repetitive tactics the "publishers' playbook." /4

The playbook is designed to maximize the publisher’s profits & control over the public’s informational needs. /5

But, as we explore in the paper, the publisher's playbook has been a failure. /6

Thankfully, #Congress and the #courts have historically upheld #libraries’ attempts to expand access to information for the public’s benefit /7

Here are some highlights you might be interested in that are part of the paper's timeline (This is the short version - there is much more detail in the paper!) /8

1890s–2010s: Despite publisher contentions, courts uphold public policies for #library lending & #Congress codifies. Congress states, adapting #firstsale, that “a #library that has acquired ownership of a copy is entitled to lend it under any conditions it chooses to impose.” /9

And despite courts’ & Congress’ consistent support for first sale, publishers dispute the practice in 2013 in Kirtsaeng v. John Wiley & Sons, Inc. #SCOTUS reaffirms the #firstsale doctrine, further empowering libraries to lend books that they have lawfully acquired /10

1930s–1970s: #Libraries adapt new access technology (microfilm!) & publishers challenge the longstanding and legally protected practice of #interlibraryloan #ILL /11

Why? Publishers were concerned with how #ILL might undercut their subscription market & lobbied #Congress to include prohibitive language (Yet the U.S. #ILL Code was in use since 1916 & adopted by the American Library Association (ALA) in 1917!) jstor.org/stable/25690164 /12

In response, #library stakeholders proposed additional language that protected ILL from allegations of #copyright infringement /13

1970s: Publisher pushback against #library photocopying ​​results in stronger #fairuse protections for libraries and the development of Section 108 - which is the engine of #ILL #docdel #preservation & more! /14

1970s–2020s: CCC pays legal fees for university publishers to sue #GSU. Courts find #ereserves are #fairuse despite publishers’ prolonged litigation and previous “Classroom Guidelines” (which are NOT law!) /15

2020–Present: Publishers litigate against state legislation promoting fair and equitable #ebook access (@library_futures & states are still working to achieve this goal!) #ebooksForAll infodocket.com/2022/06/30/lib… /16

That takes us to the present where publishers have sued over the @internetarchive's @openlibrary program for using #ControlledDigitalLending #CDL to increase access to #books during the COVID-19 crisis. publishersweekly.com/pw/by-topic/co… /17

Challenging the legality of #CDL is the most recent example of “running the playbook”—another publisher's attempt to obstruct #libraries’ efforts to expand access to knowledge. /18

#Congress and the courts, which have historically upheld #libraries’ attempts to expand #access to information for the public’s benefit, should do so again. /19

Lastly, @jziskina and I would like to thank @GeorgetownLaw #IntellectualProperty & Information Policy (iPIP) clinic students for researching & drafting a memo that served as an early version of this paper! The pre-print is available #openaccess here: dash.harvard.edu/handle/1/37374… /FIN