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The Long Arm of the Law

by | Nov 5, 2021 | 0 comments


This session is traditionally one of the most popular at Charleston Conferences. For many years, it has been moderated by Ann Okerson, now Sr. Advisor at the Center for Research Libraries (CRL), and features two other legal experts discussing a range of legal issues and court cases of interest to information professionals. This year the experts were Lila Bailey, Policy Council, The Internet Archive, and Kevin Smith, Dean of Libraries, University of Kansas.

Anne Okerson






Kevin Smith discussed compulsory licensing for eBooks and legislation in Maryland and New York. The Maryland law requires a publisher licensing a electronic literary product to also offer to license it to public libraries on reasonable terms.

New York passed a similar law, but it has not been sent to the governor’s office for signature. The law in Maryland will go into effect on January 1, 2022 . The Association of American Publishers (AAP) challenged the law on 3 issues:

  • It is preempted by Section 301 of the Copyright Law which says that Federal regulation preempts any State law,
  • It violates the Federal power to regulate interstate commerce, and
  • Lack of due process because “reasonable terms” is not defined.

Congress got involved, and asked the Copyright Office to clarify this “unprecedented intrusion into the copyright marketplace.  The Copyright Office responded that it did not find explicit preemption.  Then ALA responded to the Copyright Office opinion.

Maryland built a case against the challenge as they adopted this law. There are significant risks in challenging this law and publishers’ rights..

Lila Bailey discussed what is at stake in the litigation by four large publishers against the Internet Archive (IA).  We are all readers, and we all like libraries. Bailey used the example of books she read that turned her into a book lover for life. Publishers have only named 127 books in their lawsuit. In 2020 the IA announced plans to suspend limits on lending from their “National Emergency Library” (NEL) so that some readers could get copies of books that were not in digital form. The IA did what many libraries should do but could not–they lent scanned digital books using Controlled Digital Lending (CDL). The physical books never circulated. The publishers want to shut CDL down and want over 1 million books destroyed. We all have a fundamental right to seek, receive, and provide information in all formats and are moving from printed to digital information, which is not easy. The books at issue in the suit are at risk in all contexts. In Texas,  more than 800 books have been banned. The purpose of copyright is to edify the public, not prop up the business of a corporate giant. We have seen an expansion of the NEL because it came a vital service. Some libraries adopted their own solutions apart from the NEL. Collaborative consortia have popped up nationwide. Efforts to improve CDL are proceeding because it solves real problems for libraries, especially when libraries were closed during the pandemic. Publisher business models are broken; they have changed the rules in the last 20 years. Wha i’s at stake is larger than the IA suit. What is a library if we cannot own, preserve, and circulate books but have to rent them from the publishers who have increased the prices for access enormously? Libraries are hostage to publisher rules, and the only solution is digital ownership. This lawsuit affects all libraries, which is why the IA is fighting. Having a few big publishers is bad for all of us. Let’s work together. For publishers, the solution is simple–sell eBooks to libraries.

Don Hawkins
Charleston Conference Blogger


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