Kyle K. Courtney Profile picture
Mar 15, 2023 20 tweets 16 min read Read on X
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

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More from @KyleKCourtney

Oct 30, 2020
A #copyright #Halloween Story: I was reading about @internetarchive's project to digitize the Marygrove College #Library collection. About halfway through the article I was horrified to see a copyright myth brought back from the dead!🧛On Halloween!🎃libraryjournal.com/?detailStory=i… /1
The myth from the article is that somehow #fairuse can’t “extend to creating and distributing complete copies of a copyrighted work.” From the #SupremeCourt to the #fairuse statute itself, the fair use doctrine does not have a ban on copying or distributing “the whole thing.” /2
This is a myth that I, and my #copyright colleagues around the country, have been trying to “mythbust” for decades! So let's take shake down this #fairuse skeleton like #VanHelsing! /3
Read 15 tweets
Jul 29, 2020
#ControlledDigitalLending is a method by which #libraries loan books. Publishers are suing to get rid of CDL for good. This is not just an @internetarchive lawsuit, it is an attack on all libraries rights to loan, preserve, & provide access to books. blog.archive.org/2020/07/29/int… /1
Ultimately, this suit about how libraries can continue do what they have always done: lend books. #ControlledDigitalLending is not a brand-new concept. Libraries have loaned books to patrons for centuries. And #libraries DO NOT NEED permission or a license to loan these books /2
Libraries can legally loan books they have purchased or acquired. #Copyright law covers these exact uses. So why are publishers suing over #ControlledDigitalLending? /3
Read 25 tweets

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