librarypunk - 059 - Open Library and Controlled Digital Lending

Episode Date: July 7, 2022

This week we have Kyle K. Courtney to talk about Controlled Digital Lending, Open Library, and the encroaching AI threat.  https://twitter.com/KyleKCourtney  Library Futures Releases Policy Statement and Draft eBook Legislative Language: Mitigating the Library eBook Conundrum Through Legislative Action in the States Ebooks Legislative Map  Copyright First Responders  Media mentioned If publishers have their way, libraries' digital options will see major cuts | The Hill Interoperable System of Controlled Digital Lending | NISO website  The End of Ownership | The MIT Press  Emerging Issues in Copyright: A Jaunt Through Some Common Problems (Justin’s presentation)  Does digitization hurt book readership and sales? Evidence from the Google books project The Evolution of Ebook Bills - EveryLibrary Institute

Yeah, and Justin likes drops. Just talk through them. And Justin, we'll interrupt you with drops. I have started doing the standard disclaimer anytime we have a guest now. Because normally the first time a drop happens, the guest, like. Yeah. I've been waiting weeks to do that. Yeah.

You haven't been warning our guests about the drops. Yeah, I keep forgetting. I've been a little, I've been going through a barto, you know, big change. Mm-hmm. So. I'm Justin. I'm a Scultcom librarian. My pronouns are he and him.

Hi, I'm Sadie. I work IT at a public library, and my pronouns are they then. I'm Jay. I'm a music library director, and my pronouns are he-him. And we have a guest. Would you like to introduce yourself? Sure. My name is Kyle Courtney. My pronouns are he-him. I'm copyright advisor at Harvard University and co-founder and board chair of library futures. Welcome. Thanks so much. Great to be here. Yeah, I feel like we finally got you on. Yeah.

We're going to talk about the open library. library and the internet archive and e-book stuff and copyright. But first, I have a new segment. I don't know what to call it yet. You know how everyone's using AI generated texts, right? So what better use for this technology than to make bad tweets about library stuff? So I have a game where I will tell you a tweet and you will tell me if it is a real tweet or an AI tweet. This is incredible.

I feel like I'm going to lose at this. Okay, okay. So I'm trying to make them on theme today. Someone else will have to keep score so I can look at them and not read the same one twice. Okay. First tweet. The at Internet Archive is a pirate website that's stealing content from creators hashtag shameful. That's a real tweet.

That's a real one. That's got to be a real tweet, right? I would imagine it would be. From some author, I imagine. From some cop. So the guess is human or AI, right? Right. Yeah, as far as I know, those are the only two options.

For now. That's some cop shit. It's got to be a real person. More human than human. Okay. So everyone's saying, human, that is AI. Seriously? Yep.

That AI just copy pasted from someone. I think probably, but I put the randomness pretty high. Okay. Hashtag shameful? That was what that was. Hashtag shameful. Yeah. All right.

Just want to be clear. Let's see. Libraries are important institutions that provide free or low-cost access to books and other materials. However, they should not be allowed to have better licenses to e-books than other businesses. This would create an unfair advantage and could lead to libraries having a monopoly on e-books and monopoly on e-books. Okay. Is that a publisher or something? Is that a person?

This is the game. I can't tell you if it's a person or not. I want to say that's kind of lengthy and too comprehensive for AI. So I would guess that one's a person too, but maybe we're just going to guess that all of these are people, and that just means that this passed the Turing test. This is like when you see the Boston, whatever, like, robot dogs and people are like, aw. And I'm like this, mm-mm, is this the mm-mm, but for like doofy library tweets. I think it's human because it gets the first part right and the second part totally wrong, which is what. Twitter's good for.

Oh, yeah. So we're all saying human? Yeah. That one is AI. You're shitting me. It does a lot of things where it flips its argument halfway through. It does that a lot. So you can't rely on that to be human error.

Wow. It generated a lot. That's a good AI generating argument machine. I'm scared now. Yeah, holy shit. Nothing tweets better than I do. I've been having, yeah, I had a lot of fun. with this. I want to do this segment more. Okay. The Internet Archive is undermining legitimate

e-books, sales, and standard library practices, comma, and could damage revenue for our creators. Join us in signing this open letter calling for the shutdown of the Internet Archive's National Emergency Library. That's a human, and I bet I know who it is. I also am going to go with human because I feel like you're doing the thing that they do in movies where you do something twice, and then so you expect the third time. to like be different or something. And so you would think that we would all start going like, oh, it's AI.

It's human. Yeah. He's metagaming. Metagaming. He's metagaming. I thought you didn't know what video games were. No, it's movies.

It's film. But you're metagaming. I do watch a lot of like, I watch like game shows growing up like from the 70s. Oh, I should steal game show bits too. Yeah. Can we fucking do like match game?

I could be, yeah. Sadie, what's your guess? I would say, I would say human. I'm going to go with human again on this one. Kyle seems very confident. Okay, that one is AI. I know it's human. I figured Kyle would know.

Kyle can guess who it is. Yeah, yeah. I think I remember who it was. Ed Houseback, maybe. I believe this one was from the Australian Authors Association. Oh, okay. I remember that one too far. Or something like that.

I didn't save the user's, I should do that in the future. I remember the petition. Okay. Well, you all tied, so you all lose, I guess. You want to try and do a tiebreaker and guess separately this time? If Arthur were here, he could do the tiebreaker. The Emergency National Library is a disgrace, exclamation mark.

We need real books, not some digital copy exclamation mark. The typo makes me think, I mean, you would think like, OAI, they messed it up. No, but I'm guessing this is a person who doesn't know what they're talking about tweeting. There's not a typo. But emergency national library instead of national emergency library. Unless you read it wrong. No, emergency national library. Yeah.

I'm going to guess AI on this one just to guess something different for once. I'm going to go with AI. Okay. That one is AI. Okay, so I lose. Yeah, it jumbles upwards. Anyway, so that was... So, do people.

That was high or AI or bot or not or AI or Kohai. I could get like a drop of Sean Connery saying co-high, AI or Kohai. That was fun. God, I remember that cluster fuck of a summer. That was fun on Twitter. Me too, because they just read like 100 tweets. Yeah. Trying to find some to use.

Yeah. People are still mad at Chuck Windig. Yeah. Don't you know, he killed the Internet Archive. Single-handedly. Like, ignoring that he's just an annoying writer person. So I think we should start off by defining turns if we're going to talk about the open library and an internet archive and the, I'm going to get this wrong now, the temporary national emergency library. So, Kyle, could you explain what controlled digital lending is?

Sure, Ken. So controlled digital lending is the name of the process by which a library loans a book in the digital lending. digital space mimicking the loaning cycle that occurs at the circulation desk, just using technology. It was named in a 2018 paper that I co-offered with Dave Hansen at Duke University. The underlying theory was developed as early as, I think it's 2011, by colleague of ours Michelle Wu, who was the Georgetown Law Library Director and Professor of Law, who was talking about collaborative digital collections. And so Drill Digital Lending is a simple concept. And in fact, when Dave and I wrote the paper, we did not, you know,

it was one of those corners of the world we thought no one would pay attention to. So again, it's just mimicking the circulation desk, but in digital space. And so the fundamental elements of what make controlled digital lending controlled is, do you want to go over that? Sure. So the controls are on there so as to prevent copyright infringement and preventing it from being in just a, you know, PDF or digital file distribution machine. The concept is based on the books that we already have on our shelves, right? So this is the books that libraries have already purchased.

They've spent their tax dollars on or their money or acquired in somehads that they have a legally authorized copy. And they make a digital version of the copy. and the controls that overlay that loan, that digital loan, are the prevention of it from being downloaded, copied, or shared beyond the scope of that person's loan. So if you think about it, it's basically just access, right? The book opens up in some sort of interface on your computer. You get to flip pages.

You get to look at it, but you can't do much more with it because the controls are there to prevent it from being infringement. And then you can digitally return that book, and the next person in line can then get access to that book, just like, you know, waiting at the Cirque desk or many of you maybe at the reserves desk. Like, it's been three hours. Can I have that book back? It automatically goes to the next person. So would you say it's like a form of non-evil digital rights management where it's more upfront about like this is, you're using it under specific circumstances in a specific period of time instead of like lying to you like Amazon? on and whatnot. Yeah. So, you know, I don't have love for DRM when we did a big event,

Library Futures hosted an event within an archive a while back. And I was on a panel with Corey Doctor and he was like, so, Kyle, do you love DRM? And I was like, yeah, I was like, no, I do not love DRM just, but this is the shoe that fits. This is the only way we could provide digital access without stepping into mass infringement. Right. And that was the purpose. And I said, you know, the sacrifice is worth the access, right? You know, the convenience of this for people that can't get to library for public health, welfare, safety reasons, et cetera, that are in remotely or in rural spaces or can't afford it. You know, this increases the access there.

So I will do it for access. Right. Is there, and so usually do you use something like Adobe Digital Editions to prevent download and modification? Yeah, that's a common one that's used in the, I believe they use it in the open library system and Internet Archive. CDL has many different flavors. So control digital lending has been adopted by over 100 institutions in the U.S.

in Canada, and actually a version is being used in India right now. I talked about this this morning. And sometimes they use Adobe Digital Editions. Sometimes they're using X Libra's Al-D-Reed reader. Some people are using Box, the shared drive. Some people have a Google Drive hack. That looked painful. set up. I saw that institution.

Yeah. We did a little bit of that for like course reserve stuff at William and Mary in the music library for like sharing like opera videos and stuff. Sure, sure. Yeah. So that that does, well, that's the thing. These things are already existing, right? There was one by a company called Occam's Reader. They do interlibrary loan and

document delivery and they were like, oh, well, we can change our system to also do CDL, right? Because a lot, you know, libraries have been delivering digitally to people for a long time. right, that's nothing new. Interlibrary loan's been digital since the late 70s or the 80s, right? The idea you can send articles, you can send chapters, etc. This is just doing the whole thing, right, in the digital space.

So there's a lot of workflows that exist that this could append to. But you need those technological controls. Because other than that, then you start to get into troubled space. Although it's, as we know, with the lawsuit, it is technically troubled space for one, version of CDL right now, the Open Library Program. Right. And the other control is that you loan out as many digital copies as as many physical copies you have. Yes, it's called the owned-to-loan ratio. So you can only loan as many as you have. And again, that replicates what would happen in the physical environment. If you give a book to someone and there's only one book

in the library that the next person has to wait until that person was done. And there's been explorations of doing that consortially as well. How many of these like DRM, like, are there, they're all proprietary, I'm assuming, except for like maybe like the Google doc hacks and stuff? So is this just like another way that library vendors are, another thing that like library vendors are creating in the market? Or is there any sort of open source sort of version? So just like interlibrary loan and e-reserves, there's some open source versions that are at work and there's some vendors that are also entering this space. And honestly, I think that's good for the survival of this methodology, which I think will last. So there is project reshare and a number of other organizations working with them are working on an open source methodology for this that could be easily adapted.

And then there's vendors also in this space. Most importantly, for both of those paths, NISO, the National Standards Organization, has got a large melon grant to, create a standard for CDL loaning that could later be adopted. Now, that is happening. As we speak, I'm actually on the group for that, and creating an interoperable system of controlled digital lending would be really great, because then everyone could have a standard, right? That's what they do. And it would do something, which is the goal. We have this secret goal, which is to make CDL boring, Meaning it's so run-of-the-mill, so rudimentary, it's just another arrow in the quiver of tools that a library will have to deliver access to materials. We do all sorts of things.

But as far as getting digital copies of the print works that are already on our shelves, we think CDL does that. In fact, that motto, let's make CDL boring, was the battle cry of Boston Library Consortium's CDL Group. And in fact, they made totes and gave it to all members of the working group. So I've seen a couple pictures of that. Let's make CDL boring. Yeah, I would love to do CDL at my institution. We have ALMA, and I know that they've been working on implementation. But I don't expect that once they get it right, they're not going to charge us $50,000 for their privilege.

They'll make it a module. Yeah, and certainly, Alma is already pricey, right? For most places, I don't know how many people have it because it's that expensive. but I think there's always going to be that like, oh, we can, you know, just append this onto your system. And Almadi does work and has some of the controls necessary. They've built out systems for libraries to do CDL. I think they were focusing on reserves at the time because reserves, as Jay pointed out, makes the most sense.

It's the most practical version of it, like the book that sits behind the desk, right, that you couldn't get during the pandemic, the height of our closures, right? I think that was one of the best flavors of CDL that I saw out there. But now we're moving into spaces of exploring special collections, archives, rare books, materials. Again, things that we already have on our shelves that we could provide access to that never made the jump to digital, nor are likely to make the jump to digital in the future. Yeah, I would love to have a system where anytime, I guess, someone checked out a book that was digitized in special collections, you would just go put like a red flag on it and like this can't circulate or just flag a whole shelf and just be like, okay, these can't.

Jay, are you grinning at me saying flagging? Or you just? No. Okay. I'm not. It just be like, okay, these are all CDL books. They don't, they don't circulate. Although what side of the book are you putting the red flag on?

Usually the top. So I think it's confusing. That's first thing. Yeah. So where it goes and how it's hidden is one of the fun things I get to talk about. So, you know, obviously things that are on an open shelf and an open circulating collection, that wouldn't be CDL. Because let's say I loaned a digital copy out. Somebody was just browsing down the shelf and pulled it off and looked at it.

Technically, there'd be two copies used in that moment. We said the most simple thing is they had a system at one library where they would go out and pull the books off the shelves and go lock it in the supervisor's office or something. You know, somewhere it's not in public. some places we're putting it in, you know, basements or pulling whole swaths. My whole thing, I talked to Tom Bruno about this a lot. He's an interlibrary, loan librarian and resource sharing guy that I've been friends with three years. I was like, hide in the salt mine. Put it down deep, deep in a salt mine.

No one could get it. It'll be protected from things because, you know, they have whole journals, collections, down in, you know, gray archives and salt mines. But the interesting thing that I think is the best is a lot of large scale, either public, private, academic, or otherwise libraries and special collections and historical societies might have off-site storage, right? And suddenly, what if we could flip a switch and turn all of us on because they're not available to the public? They're already naturally away from the patron. They cannot be accessed. So I'm imagining that being an interesting way of what I've referred to as

preserving the power of the print. We get certain rights with that that I think are fascinating. Yeah, we're wanting to do something like that. And obviously it's still in its baby stages, but at Laungee because it's a music library. So it's mostly sheet music. And during the pandemic, they just closed the stacks so that people had to request. And it's like, well, that makes so much sense to digitize and then just have offsite because Laungey is two buildings that used to be houses.

There's no space in there. Right. And so, yeah, like I wonder if there are like certain types of collections that make more sense, quote, to be CDL than others, like where it might be easier. Oh, absolutely. And so, you know, Dave and I outline in the white paper, like, we're like, oh, okay, so here's a bunch of things that we think could be emphasized as a low-risk, easy entry for an ASEAN CDL program at your institution. You know, less copyright, no market, specials, unique items, ephemera, things that, you know, there's no market for it. But we have it. We might be the only ones have it. It's a balancing act. A lot of times it's, you know, I think of the highest scholarly potential value.

of the community by having it being digitized and shared. You know, this might uplift and voices that have not been the focus of digitization efforts in the past or rare items versus the risk, which is relatively low, right? So high scholarly value to some community now and in the future, very low risk. That's the winning combination for control digital lending. Yeah, thinking through like public libraries and like the public libraries I've worked at, have had very, like, are in areas with lots of native tribes. So one library I worked at had a Native American collection that was very localized.

So a lot of it was like, you know, like that plastic spiral binding and like the kind of thing that like you wouldn't normally have for a library book. And they were being circulated. And because they're being circulated, they're also kind of being slowly destroyed. and these are things printed by vanity presses or put together by the tribal community itself. And it's so localized, but it's also things like preserving language. So there's a lot, one of the library that had the Native American collection, had a lot of the local language dictionaries and stuff. And it was pretty much the only place that the public had access to it.

Yeah, I encountered that when I was doing the Alaska. Library Association's meeting. Annual meeting was online, obviously, during the height of the pandemic. And I beamed into the Copyright First Responders, Alaska meeting, and then another meeting, and they were like, they were very interested in CDL. Alaska has some landlocked, water locked, all kinds of locked communities. And they were like, this could solve a lot of the problems,

but they had, again, you hit it right on the head, those local collections that are so unique. and rare and almost irreplaceable. And sure, we can make a preservation copy because of our library. I'll nerd out here and go under Section 108. We probably can make that, right, preserve it. But what if we could preserve it and loan it too? You know, two communities throughout the states

and two communities that probably should have access, but may not. And so, you know, there's a lot of aspects of this that I think have value. Of course, there are people who disagree with me on this. thus the subject of the lawsuit, but the lawsuit's about major publications, right? I'm thinking of all the wins we could get for our unique collections. Yeah, it makes the most sense. So let's go into the lawsuit then. So what was the temporary National Emergency Library?

Oh, okay. So there's controlled digital lending. We just talked a lot about that. So let's put that to the side for a moment. National Emergency Library was a special, version of the Internet Archives Open Libraries program. That was a reaction to the fact that no matter how many books that may have been on the shelves in these libraries that joined Open Library program, they still needed no more.

Teachers are writing in nonstop to the Interarchive. It's like, we need more copies, we need more copies, we need more copies, right? So the Internet Archive chose to suspend the own-to-loan ratio weight, this limit for a temporary period of time so that people could finish their assignments, do their reading, complete their stuff. And the idea was it did get rid of one of the programmatic controls that normally controlled digital lending would have. So again, the National Emergency Library is not controlled digital lending. It is separate from it. It was a reaction to this. And it was supposed to end on, I think it was June 30th, right, near the end of the school semester for public

schools and, you know, elementary K-12. And that didn't get to formally end it because they had the lawsuit, I think, 20 days before it ended. And so the lawsuit is both challenging the CDL Open Libraries program and also to a lesser extent, the National Emergency Library, the NEL. Which makes no sense. Like, you think it'd be flipped there. I mean, I'm a big NEL, like, defender, but you think if they were going to see,

sue one of those things. That's the one that is the more legally murky one, but also this one has the most like repercussions, I guess, and they're evil. Yeah, they're showing their asses, basically. So NEL, you know, I remember when I got the news, I was like, oh, I guess they're doing that. You know, like, I'm not tied to any of it, right? This is internet archive. They're a special unique library player in our space. Um, and they just, they, they, had. They thought there was a moral imperative there to make this stuff available on a limited basis. NEL was going to shut down, so even if you could prove some kind of harm, it would only be for a limited small window of time and you'd have to have the data and all this stuff.

By going after CDL, it's something that they probably didn't like to begin with, and it's honestly, you know, in my view, looking at the complaint, which is all we have right now. There's a bunch of filing's coming tomorrow, right? All these big motions of Smith and stuff, we can talk about that. But as of today, I've only read the complaint. And the complaint seems to be attacking the library loaning system itself, because the expectation is here is, well, you can't do that. You need to buy a license for all these things, right? And that's certainly, that's true from one perspective for the publishers, but that's not true for most libraries. Most of the materials that I have on my shelf in my library are not available in a licensed space. And to be honest, I wouldn't want a license. I get so much more

value for my computer D by having this, you know, print book that can preserve the significant legal and fiscal values that come along with buying that work, right? Acquisitions is an important part of the library space, but so is, you know, using it and providing access to it. So if you read the complaint, it says, like, Internet Archive is taking a free ride. Internet Archive produces nothing. In our right doesn't pay the authors. In our archive, like all this stuff, you replace that word with libraries, it looks like an attack on the ability to loan books, which they are viewing every loan as a lost sale. And that is backwards. Right, because in copyright law, like one, most of copyright law is how you get around copyright

law. Two, right of first sale is a thing. And that's just how libraries work is right of first sale. So they're fundamentally going after write a first sale here as well, which applies to non-library spaces. It applies to me being able to sell a book secondhand to loan a book to a friend. That's like going after like copyright law itself. Well, libraries are a secondary market, right? So secondary market earns billions every year. eBay's a secondary market. Use record stores are a secondary market. Use bookstores are a secondary market. Libraries are secondary market. We buy the thing and then we loan it thousands and thousands of times, right? We don't charge for it anymore.

Yeah, this just, I don't know, seems kind of like one more move in the sort of field of eliminating physical media all together. So like, yeah, digital books. You don't, you know, you stream on Spotify, you stream on Netflix, you don't buy DVDs, no more blockbuster. and that can only benefit the publishers in the end. And it's worse than that even, because let's say for the moment, I agree, by the way, I agree with your premise completely. The End of Ownership, which is a great book. If you haven't read, the end of ownership, you should.

But that's for the consumers mostly, right? I am not able to get DVDs. I can only get Netflix. I am not able to buy songs, etc. But this is retroactively applying that ethos, that modern convenience ethos of licensing only to the collections we already own, right? That's what's wild. CDL draws a line right down the middle. It says, yeah, things that we can get in the future might be governed by license and e-books, and I'm happy to talk about that nightmare as well. But this is stuff on the other side. This stuff we already physically own and have rights over, and they want to limit our space. The answer during the height of the pandemic from the corporate office and publishers was like, oh, well, don't worry, you have to just buy a license. And imagine telling

a library system, because they have, that yes, sorry, you're closed for public health, emergency, etc. What you need to do is go out and buy your collection again, everything you have, only with a license, because that's the only way we're going to let you loan this. Otherwise, it has to sit on the shelves, and since no one can get to it, it could just sit there and rot. That's not, that wasn't the purpose and the value. And so when I've been discussing this elsewhere, yeah, there's a legal value to it. And Jay said, yeah, first sale. It's first sale through the lens of fair use, by the way. That's how we formulate this. But on the other end of the spectrum, it's also preserving the fiscal value we have in our collections. All of our libraries have spent

tons of money on making sure we get these collections. And we're not buying new books all the time. Like, you know, you've probably seen it. You lend a book 100, 200, 300, 300 times. You'll glue that thing together, right? You'll bind it. You'll put in special library binding. You'll put it in a box. you make that thing last because library budgets are not up. They're generally down. And we need to preserve the fiscal value in these collections as well as well. Sorry, I just got on a giant soapbox there about that. I apologize.

We like soapboxes here on Library Pong. That's the whole point of the podcast. That's a little IWW like labor movement thing. Yeah, get on your soapbox. That's right, boys, Mondo. I was going to bring up end of ownership. You preempted me. I gave a talk on that a while ago when I was very early librarian,

so a lot of it wasn't that great. But I still am pretty proud of that talk. It's one of the better rehearsed once it was recorded. I'll put it in the notes. But yeah, the whole putting a license on a physical thing, read that book. I mean, it's bizarre things people have tried. Like, if you ever seen that photo of the CD, it says if you break the sticker, you're agreeing to the terms of service.

that is not actually legally enforceable, but people tried it a lot in the 90s, unlike everything. Light bulbs, printer cartridges, door openers, everything. But it was funny, Kyle, you mentioned that every circulation is seen as a loss of a sale, except when I talk about saving students money with OER, then I had someone from the National Bookstore Association question my numbers and say, So you had 100% sales, and I said, no, it's 100% savings because they all have access to the book. So I have provided them that value because, you know, that's how you estimate savings in like any industry. That's fascinating. Yeah. Yeah, well, I mean, so we have a unique aspect with libraries, especially public libraries, the American system.

We don't have the public lending right, which tries to, in parts of Europe and Scandinavia and, and even a little bit in Latin America. There is, every time at the end of the year, you count up the checkouts, you've done for a particular book, and you cut a check to the author, not to the publisher, to the author. That public lending right is supposed to kind of balance out. But again, recently when I think one country, it might have been South Africa, was thinking of adopting a public lending right.

You know, everyone came in and said, yes, yes, you should do this. And the libraries were like, no, right? Because they were like cutting a check at the end of the day, you know, at the end of the budget season or whatever, it actually, I think it's inefficient in the methodology of the economy of libraries. Let's squeeze some more money out of these folks that have no money, right? That's just not going to work. And I'd be like, oh, hide those books away because if it checks out too much, it becomes popular, we're going to pay. What they should do is just pay the authors better in the publisher contract. That would solve that problem.

So when we heard a lot of anti-CDL, anti-NEL during the heyday of the library pandemic closures, there was a lot of authors groups, certain ones, not all of them that came out and said, hey, this is costing authors money. And I was like, it was not costing authors money. These are books we already bought that are on our shelves. The authors have already been paid via their contract with the publisher. That's, you know. And so it was one of the few times I probably agreed with some authors groups.

are saying, yes, let's get better contracts for the authors. I'm all for that. Yeah, because you would see them being like, you see that they're stealing from libraries. They have the stamps in there and everything. They just rip the spines off and it's monstrous. I'm like, yeah, because the libraries gave the books to them through a partnership. But yeah, like you point out that like the publisher is like in none of these cases, if they bring up the authors, it's more of just like to get an emotional reaction.

Absolutely. And they don't actually care. and like I'm not against the idea of like the royalties thing, but like it should be a nationalized thing or like part of the, not like the library having to like fork out some money. Let's have the government cut a check to the authors. You have the most popular book in public libraries in America today. There's got to be in national endowment for the arts program that could write that person a check. Yeah, or like the publisher should do that or something. And the checks aren't like large. It's not like, you know, these authors in Europe where there's countries where PLR exists are getting like, you know, here's a year's worth of salary, right? It's a perk. It's a benefit, right?

Maybe they can go on vacation or something. I don't know how much it is, but it doesn't seem to be a lot of money. And sometimes it's even localized, so it's not just any checkout. Sometimes in certain countries, it's checkouts of national writers in this country, right, so that you're not collected from Germany, France, Italy, etc. You're checking just from the country that you're in. So anyway, I don't know how I got the public lending right, but it comes from the idea of every loan is a lost sale. And that's what I'm, at least what I'm looking at is the counter to CDL and the promotion of more licensing.

Yeah, I mean, I think that should be more of like, it's probably why the U.S. doesn't have one is because we dominate world culture so much, world popular culture. That's why Canada has to be like, no, we're going to pay our authors because we want to subsidize our media. Like, it makes sense to do it nationally. Because that's what you're saying. You're just saying, like, we want our art to be bigger in the world. So we're going to pay our artists to make art. Like, yeah, that's it. You subsidize an industry just like any other.

Just the same as Germany subsidizes auto manufacturing. You just want to be known for it. So with the suit against the Internet Archive, going back to that, I have, I don't really have anything against the Internet Archive, which is a thing you say when you definitely do. I've only against them for being tedious in meetings. because I wanted to go to CDL meetings and they kept talking about how they were getting sued

and I'm like, I know you're getting sued. I'm here to hear about people making the fucked up Google Drive. Show me that. I don't want 20 minutes of hearing about how you're being sued again. I stopped going to CDL meetings. The suit, my opinion has always been like this was an unnecessary risk and it could screw up CDL for everyone.

How real of a threat is that if you get a bad ruling in this case? I mean, they're clearly going after CDL. like what are your odds if we're going to take like a bet on this? The odds of it destroying all CDL? I mean, so this is one flavor of controlled digital lending, right? I want to make that very clear. This is the Internet Archives Open Library Program. The lawsuit is about 120-something books.

That's it. It's about those books, right? Not the 2.1 other million that exist. There's some hyperbole that the damages could be high because statutory infringement, you know, can go as high as, you know, the minimum 750 per infringement to 150,000 per infringement, which is draconian. Obviously, these books cost, you know, 1899 or something. So how could you get a $150,000 judgment? But that's for another day.

It's discussion. I think if the open library is declared to be the method by which they employ CDL infringing, first of all, that would happen at trial in November, and then there'd be appeal, and then that would take another two or three years, and then it would be another appeal, and that would take another year or two, three. Like, remember, we're in a legal society now that it took 12 years of litigation to decide that one chapter or two chapters behind a pinwall at a state library system was or was not fair use. And that Georgia state case took it 12 years.

That is an amazing amount of time for something that we are all doing and did do during the entire time. It's not like we stopped doing reserves in libraries for chapters and articles. We may have smartened it up a little, but so I don't think there's a danger of CDL ending in any capacity, because again, over 100 libraries are already using it in various ways. And there are ways of doing it that increase or decrease risk, certainly. I think, however, in an archive is taking one for the entire team here by litigating this thing fully. and I think they have an excellent winning argument and not just because they cite to my white paper. I really do.

Even if I didn't write the white paper, Dave and I didn't get together to come up with this, I think it's a methodology for thinking about how libraries can increase access to their collections to the digital space without harming the market. And we have no precedent on this, really. We have very little market harm that I can see. And you have to prove harm. You don't just get to say this is wrong. You have to actually prove damages and harm. So it's going to be tough.

So while I understand that them talking about the lawsuit, you might have been like, no, just tell me how to do CDL, not about the lawsuit anymore. You've got to understand, for their point of view, this was a earth-shattering event. It's only been a few times the publishers have sued libraries, right? Thankfully, but this is a major one. And, you know, this is all of the vision of one gentleman,

Brewster Kale, who decided to do this and make, you know, the digital library of Alexandria. So that should be rewarded, not punished. But in this case, you know, we're in a litigious field right now. Libraries are the hot place to sue each other. There's other OCLC, you know, suing clarivate. Yeah, we just talked about that last week. Oh, you did.

Yeah. So that's a mess. So, like, we're in a place where there's a lot of rock throwing going on, which is unusual. But to be in this place and this time to make this available, I think it's important. And I do not think it will end CDL. Yeah. And like at least like with like proving harm and stuff because they're always like, oh, well, every time someone checks this out or something that's a lost sale.

And it's like, because I remember with the NEL, the people were like, well, people are just going to like screenshot and pirate all of these PDFs that they're all taking out all at the same time. And I think what a lot of people are like ignoring or failing to realize is that if someone was going to pirate it, they weren't going to buy it in the first place. And so it's not a lost sale. And like with libraries, often it will generate a sale after if someone liked the book enough. So like if they were going to get a library copy and then don't go buy it, they probably weren't going to buy it anyway. One, and like two, they might actually then actually go buy it after.

And pirates wouldn't have bought it anyway either way. So. And there's a great article out there. And it's somebody out of Northeastern, so I should remember, but I don't remember. But But basically, it looks at whether or not digitization hurts book readership at sales and found the total opposite. In a majority of cases, digitization and distribution, in this case, they were looking at Google Books, increased sales of the work, even if they were out of copyright in the public domain or et cetera. So, yeah, there's a lot of correlation there, Jay, what I think is smart.

Well, I'm glad that you're confident that there's not going to be a loss of CDL because my worry was, IA would lose this initial suit, and then any time that I tried to do CDL, our legal team is going to go, no, you probably shouldn't do that. Yeah. Because it's liability,

you know. Sure, but I mean, so is everything a library does. I just like to point out the libraries sit on the risk balance meter constantly. As Jay knows, I think has witnessed the Copyright First Responders program where I'm like,

hey, we're doing a balancing act. We satisfy the economic purpose of copyright by buying stuff and acquiring stuff. We satisfy the access purpose of copyright, right? Promoting the progress of science and useful arts by sharing it and driving learning. So I think libraries have to learn to embrace low risk. That is a huge battle cry for me. Because if we seriously just say, well, there's some risk in this, we wouldn't even be able to loan books, do interlibrary loan, do reserves, do preservation copies,

anything. There's always a potential for risk here. We just have to choose and embrace low risk and know that there's no such thing as no risk. I've been quoting the, I think he's the lieutenant governor of Pennsylvania. He's kind of a character. Maybe you've seen him on the news and stuff. Oh, that's like buff dude? Yeah, yeah. I love the buff dude. And he said, like, they were like, well, you somebody got sued for this and blah, blah, blah. And he was like, look, just because they sued doesn't mean anything. You can sue a ham sandwich. That's what he said. You go out to the court. Fell out your farm, you can sue a ham sandwich. He's absolutely right. There's many research. why you could sue. There are good reasons, there are bad reasons, etc. But for the particular

uses of CDL that we are thinking about now and in the future by virtue of having it soak in our space since 2018 and released the paper, I think we're going to find there are great low risk alternatives for the things that Sadie was talking about, right? Unique collections, things where there's no market, things where they couldn't even bring a lawsuit because there's nothing to sue about. It uses increasing access to materials. So I think some aspect of that, I think, is warranted. That libraries, this is a great example of libraries saying, we need to embrace low risk in some capacity. And we need to rely on the exceptions that say, this is the type of harm that's allowed, right? Every loan is a lost sale? Guess what? That's allowed under the

system. It's something that Congress and the public and society are used to, and they give us this. libraries are a special slice of the pie. You know, consumer is fine. You want to go struggle with Netflix. Go struggle with all that. With libraries, we are a special entity that many people, including policymakers, generally support. So that's where I'm at with this.

Again, let me just take my soapbox here. Okay, good. And you can't just like, I mean, like, you can try to sue just because you're like, you're pissy about something. But don't you have to actually have like some sort of like burden of proof to actually like have the lawsuit happen. Oh, there's like multiple hurdles.

Yeah. You have to be like, oh, that's going to be this, then you get the damages and you have to have to approve your case. Yeah. Yeah. Yeah.

But look at those. I know you guys already talked about OCLC and Clarivate last time. Talk about it more. I just, that is clearly in my mind an anti-competitive lawsuit. Right. Because Medador is going to compete in the market space that OCLC says they have been in. And,

you know, maybe if OCLC. innovated some point in the last 20 years. We wouldn't be here. But what's really interesting about that lawsuit, oh my God, so interesting, is that it's actually libraries that are doing the breaching according to that complaint. Clarivage is inducing the breach. The breaches are us, but OCLC wouldn't, hopefully, never sue their own customers, would they? Question mark, question mark. So that's like floating around. When I read the complaint, I'm like, oh, well, those libraries are in trouble because they did the breach. But notice it's not against them. It's just saying they did this. These people induce them to break the agreement. Anyway, so that's the sphere that we're in right now. I don't know. In my experience, you do not lock up the paying customer. I feel like. That is pretty much exactly what we talked about.

Good. I think with those same words. With the same words, yeah. We had a Becky use on to talk about it from like a privacy. standpoint. Yeah. Sorry. All right. Well, I didn't mean to overlap with last week's scenario. No, please. Please talk about it. That is just going to get, that's going to heat up more. Because I also saw a new record

today from OCL that was delivered to another library, not mine, somewhere else. And they forwarded to me and said, you're talking about this. There's a new copyright statement in these batch files from OCLC and a limited license. And I'm exploring this. I don't know if it's been there before. the cataloger that I talked to in some other library was like, I've never seen this. What is this? Very interesting. As you know, Harvard Library and a number of other libraries released in 2014,

the metadata in a CC-Zero, which at the time OCL says was within the guidelines and policies that they have online and that those policies aren't enforceable because they're not like a contract, but I was wondering if that's going to shift now. Yeah, and we talked about this with Becky last week, but it's also something we've talked about in Copyright First Responders. Shout out, plug for do Copyright First Responders when you can. It's really good and useful because librarians should know more about copyright law. But how, like, there is some amount of, like, originality and creativity that goes into cataloging.

Even if you're doing copy cataloging, there's still, like, adjustments and, like, like, opinions. that go into it. So, like, where does the copyright of the cataloger even? I know we're completely off topic, but like the copyright of the cataloger fall into whatever OCLC is trying to do. Yeah. Yeah. It's fascinating.

And it's, you know, it all goes back to what is the spark of creativity necessary to say? Something is copyrightable. And that's, you know, there's, there's many bars for what's a spark. A recipe without description, not enough spark. Recipes are public domain, right? White Pages telephone book? Nope. Alphabetical, just facts.

Not data, not. But some other stuff? Maybe just a spark. Anyway, sorry, we're way off topic now. Let me steer that back in. Kyle and Jay got into like, yeah, sorry. I can go all down.

Both of these lawsuits have, like, the potential to have, like, a pretty big impact on library. So, like, I don't think it's that off topic at all. And they both, like, have, like, I mean, I know the clarifies. OCLC1 is about like, oh, they're like mining data and stealing and whatnot, but like it's their copyright. Like, even if the clarivate and OCLC1, like, does have privacy concerns in it,

like they're both just like companies being pissy and using copyright as like their shield. Well, they're using torts though. Remember there's, so it's a conspiracy for interference with business and contract, right, and inducing a breach. So they're not even, they're not even attempting to say these are copyrightable, what they're doing is they're tempting to say that these governing contracts are the law of the land and by inducing someone to interfere with business. Now, that's one of the oldest laws possibly on the books. Like common law, Roman law, you're interfering with my business. I mean, this is the oldest law in creation.

It's being used here. And I think the quote is, like, vexing us with suits or something like that. Like, you can't vex somebody with lawsuits, which is fascinating. So they're digging out something that's very ancient in the law and, you know, early merchants defending their wares and their customer base. And that's fascinating. You know, underlying all this is the battle over copyrightability and metadata, but they're not, that's not front and center in the case. That's us talking about, uh-oh. Right.

They're using these, you know, anti-competitive things. And the test fits a six-part test. It's an amazing law. Ohio has two of them that are very similar. And obviously they're suing in Ohio because Ohio would have two. Yeah, right. Ohio just like, hey, interference with business and interference with contractual business. Like, I'm like, this is almost the state that had a fucking university copyright, the.

Right. But they have to prove that it was not justified, right? There's this clause to be like that you, you're trying to go ahead with business in a space that you think you can compete. and this justification clause is a whole thing. But yeah, these lawsuits are happening one on top of the other in a way that does make, I hope maybe everyone on the panel, like, a little nervous. Like what? You know, usually it was like one copyright slash library lawsuit that's, you know,

end of days every six years or so. We've increased that, certainly. It was like Google Books and Hapti Trust and then, you know, a decade or more of e-reserves. and then now this and then clarivate. It's interesting to see it getting more rapid. Well, we also are seeing, and like, these lawsuits might not worry me so much, except also how libraries are also starting to be attacked for, like, and not just in the, like, man, we're going to have a,

we're going to challenge the fact that your library. Hi, Arthur. Arthur say hi. Hi, though. Like, we're not just going to, like, challenge that you have a book. on the shelves or whatever, we're going to, like, sue you or arrest your librarians or even start suing bookstores and whatnot. So, especially, like, you know, as a, as a trans person, like, as a trans person, like, the fact that it's like transgender, like librarians and

materials about trans people that are being challenged, the libraries are trying to get this stigma of being full of groomers and pedophiles and people who are trying to indoctrinate your children, which we are. And like that sort of public reactionary fascist view of libraries with these very corporate capitalistic lawsuits happening at the same time. Like the tide is turning against libraries, even outside of a capitalist context. So I don't. don't know how much public opinion, like, how all of these things are going to relate to each other. Yeah, I still think public opinion for libraries, regardless of these fringe people coming in and, like, destroying pride displays and taking, hiding books and crap, which is all nonsense, by the way. Just to be clear, it has an element of it that there are both ends of the spectrum in a library, right?

The patrons you serve, then, like, the problems you have with publishing and materials and access, right? which ultimately they're connected. The problems we have with the publishers, you know, ultimately comes down to what books can I offer my patrons, right? And then are they going to turn on them if it's the wrong books or something? We find in my work with library futures that when we're walking in making a policy argument or pitching a bill on behalf of libraries, and we're doing this with the e-book stuff currently, that we are already in a positive space immediately upon meeting with the representative or the legislative age. or, you know, the state legislative commission or whoever it is, or the state librarian. Because, you know, if they're not a librarian, they have no idea what libraries do.

But they have a positive, what I refer to as the warm fuzzies, about libraries. They're like, oh, you know, I loved libraries or I go to the library or the last vestige of democracy or like my mother was a librarian or my cut. You walk in this space and they already like you for what you do. And that's something that not every aspect of society has. I think libraries tend to have that, which is good for us. We need to take advantage of that policy leverage that we have, that they do have warm fuzzies about libraries.

They don't know why. And like if you talk to them about metadata and this and e-books and everything, they're like, wait a minute, what do you mean you don't buy your books, right? You're renting them? This is shocking to all of them. But once you explain that, I think there's a, definitive advantage that we have in this space. That's part of the mission that I do with library futures is to empower libraries to take control of our digital futures. And one of the

things that we do is work with legislators to get them to understand this. Because we got, you know, there's some other industries that would love to have what we have with the warm fuzzies. So we should use those warm fuzzies. Much like your cat, Arthur, there, is a warm fuzzy. I did a quick question I was thinking in terms of taking control of your collections. If libraries, if we started seeing CDL at scale, not everyone is going to be digitizing. Would there be a problem with someone using a digitization as part of their loan system? They take their book off and they use someone else's digitization. Is there something in the copyright law itself that's like you have to do the scan?

because that's always been tricky with me. No, there's nothing in the law that says you have to use this scan. Obviously, if you're using materials that are unique to your library, there's no one else to get it, right? And this is why Section 108 allows you sometimes to make copies and share with other libraries where it's lost, damage, stolen, etc. But as far as for CDL, I don't know if you guys have discussed at all. Hathy Trust's Emergency, Temporary Access Service, E-T-A-S. now that was obviously a consortial model which did not rely on the scan that was done at the local library. So if you were a HATI member, you do an overlap analysis between your catalog and what HATI had scanned via their winning 2014 lawsuit, where they were capable of doing that, right?

They won. They had a six years of litigation to win to have access to those materials as a result of the Google Books project. And after they did that overlap analysis, they would give you HATI links and you populate your catalog with those links so that when somebody who couldn't get to campus because of the COVID closures used the catalog, found the book would click on the link. It would beam them to the Hati interface, and they would use that scan. And there was as many scans as there were available books across the Hati spectrum. So if 10 libraries had one copy each, that's 10 potential things that you could look at. They tried to police it by having it only checked out, checked out, quote unquote, for one hour, right? Same thing, no copying, no downloading, no interface, own-to-loan ratio, all maintained.

And then if that hour expired, you would cease access and the next person would get it. You could also click return early, which is my favorite. And by the way, that's the most fascinating part. Both Internet Archive and Hati have data about, like, how much people were digging into books. And they weren't spending like five hours reading the whole book. they were popping in and popping out constantly. And I saw people using that argument to be like, oh, they're obviously like pirating them and scanning them. That's the only reason why they're looking for that long.

They're taste testing them or site checking. I mean, graduate students were having Hathie Trust to finish their graduate work. They're like, I can check this site. I got to check this site. I got to check this fight. You know? Yep, I need like a paragraph. That's all I need.

Yeah. So that's so in that way, just they were working off that one. one Hattie Trust scan that was done as a result of Hattie Trust's project. Yeah, we had ETS running. I was the person who got it up and running. The only reason I thought it might be different is because that was sort of like you have to be a member of Hottie Trust. It was like a little more consortial.

But I was like, if you were doing this independently, could you just grab Hottie Trusts? If you could get them to give you a copy to put your CDL system, you know, if they were interested in doing that, which they might. not be, but it's a interesting premise. Because it's very similar to Section 108. Hey, we both have the same copies, but mine is destroyed, lost, or stolen. So you can actually make a full book copy and send it to me as a library. And that's library to library transactions are like sacred in the copyright space. Things that you would do in your garage on your own, infringement. Things you do as a library, not infringement, right? You know, that's because, you know,

they've granted us those particular rights. Yeah. And the reason I was thinking about that is, you know, you've been working on these e-book laws. Maryland had one that was struck down by the court, which caused New York to veto theirs. But there are still six, I think, states that have legislation going as of right now or at least of last month. And, you know, I was just thinking, because we've talked about licensing a lot, obviously, because it's a big part of our budget. into big part of our lives. You know, if we really scaled up CDL in lots of different ways, you know,

putting things in off-site storage and just really saying, this is how we're going to offer e-books because it's just more cost-effective for us for at least certain types of titles, maybe not popular titles, but, you know, maybe we're going to have, like, a lot of our stuff running CDL, and we're going to make that a priority. That's why I was asking about, you know, using other people's scans, because I feel like if people wanted to set this up and invest in it, that would be one way of doing it. And really just sort of making digital, it's not digital first sale, but essentially doing the same thing if we had digital first sale, which is like, okay, at least we can loan these out permanently forever.

Yeah, so the divining line with CDL and the ebook conundrum is, right, what we've already purchased, like legally, physically acquired that's on our show. right? So when I think, when we use the word e-books, I think about licensed things in which we don't own, right? So again, if we're drawing the line down the middle, things we already got on our shelves, we can use CDL to digitally loan those. Things that we have purchased through e-book vendors and agreements, you know, most common being, you know, Amazon and that stuff, but for libraries, there's a whole host of other e-book vendors out there. They make us rent these books, right? We can't keep them. We can't copy them. We can't do what we normally do with them because they're subject to a restrictive license that protects us, sorry, that prevents us from doing our regular normal course of library business, checking books out, right, making preservation copies, making fair

use copies, because we just don't own them. It affects collection development. It reflects acquisitions, it affects preservation because those are generally forbidden, right? And the worst part of e-books, I think is either 26 checkouts and you've got to buy a new one. So you're consistently buying your collections again, which is unheard of, right? With the stuff that's on our shelves, we never buy new unless the book disintegrates. But also for long-term preservation acquisition, well, in two years you're going to have to buy all these books again in order to maintain. And so my fear is, you know, how at the end of the month in Netflix or Hulu is like, better watch it before it leaves, this platform. like literally that's what they're trying to turn libraries into.

They're trying to turn libraries at the Netflix or Hulu. You better read this book because at the end of the month, we're not going to be able to renew the book via the license. So it's a landlord-tenant law problem, right? The landlords are making us rent our books. We can't keep them. We don't own them. And they can raise the rent whenever they want and have significantly.

And what do we know about landlords? Yeah, that's not a good area of law. Leaches on society. I took landlord-tenant law in law school, and it was mind-blowing. Now, in Massachusetts, we have some very good laws, right, but not every state has that. And this is why we're going, and thank you, Sadie, for that pitch, this is why we're going from state to state to make the e-book landlords give us more reasonable contracts based on our special mission. And it basically is just saying, you know what, these are going to be governed by state law, and they're going to say libraries get to do this because we need to. Otherwise, we're losing culture and access.

And something we like that might like work in our favor to kind of like kiss their ass a little bit when it matters. And what we've talked on here before is like sometimes that sort of temporary kind of rotating model works depending on what you're needing. Like this is something I'm thinking about for my collections right now because before I got to launch you, they're like we're going to go paperless. And so that's the environment I got hired into. And I'm sitting here thinking, well, okay, so. we got encoda, right? We got Babel, all this stuff. And it's like, okay, that works for, you know, if a course is going to have a weird score that they're going to perform once, right? You know, you don't need to buy a copy of that for the library if it's not going to get used again, really.

But sometimes you do actually need to own something, but I don't ever want to completely slander. I mean, the fact that they can raise prices and like fuck landlords and all that stuff, but like the concept of just a temporary kind of rotating collection isn't the most evil thing in the world. To me, I just wish it wasn't like price evil. Yeah, well, it's kind of the same concept at least like from a public library perspective. And what I know, that's kind of what ILL is for. Like from a collection management. Because like, yeah, I mean, you know, the latest fucking James Patterson or whatever the hell it is comes out.

And then, you know, you buy 50 copies for the first six months. and then you weed like 75% of those by the time that book's been out for a year because they've gone through the ringer and, you know, have been coffee spilled on and all of that stuff. And you don't need to replace them because your holds list isn't gigantic anymore. I mean, that's applicable to e-books too. And that's probably, I mean, that could be like a cost or a time saver even because there's less handling of actual materials to have to do. So, yeah, there is absolutely some legitimate.

to the temporary sort of vision of it. But yeah, when it's the only option and it's specifically so they can price gouge us, like, yeah, we've had so many guests who when we explain how e-books work to them, they're like, are you fucking kidding me? Like, are you serious? That's really how that works. And I'm just like, I have- That's the best way to get solidarity with like faculty and whatnot is like, oh, by the way, we don't own this thing that you're having us by. And they go, are what? I'm like, no, we rent this every single year.

It costs more than my car. And they go, it works for patrons, too. Because back when I was working in public services, and ebooks really started to become a thing, I used to do like the labs to like help people get set up with overdrive on their devices or, you know, help them troubleshoot. And so many times they just be like, why can't you just, why do I have to wait for a copy? And it's like, well, because we don't actually own it and you go through the whole thing. And they're like, well, that doesn't seem right.

And I'm like, thank you. Can you say something about that? Like, tell your legislator it's not right, please. So the, I love to just tell your legislator. So when we have met with legislators in Massachusetts and Connecticut and other states during this last round of e-book bills, that was the same shock value. They had no idea the costs, the pricing, the constant paying. And this is how we got both sides of the aisle in any. state. We went to the fiscal side for certain more conservative libertarian things. We're like, we're wasting money. This is tax dollars basically throwing directly out the window because we have to keep buying these books over and over. And then the other end was we need long-term preservation and access and this equals the playing field because guess what, people are used to the convenience of on-demand. You know, Sadie, like your page, why can't I get this? I don't want to have to wait, right? We're in an on-demand society. And the convenience of e-books is great. But when they realized how

much it costs a library. We're like, why are you paying seven to ten times and why can't I get as many copies? That's confusing. What it does, though, it tries to push, like libraries are being viewed as the middleman, quote unquote, and we'll get pushed out. Those are the socioeconomic means to be able to be like, forget this, I'm just going to buy an Amazon copy. And by the way, not buy. They rent too. They're just going to go and do that, but everyone else that can't afford to just buy an ebook whenever they want, which is the purpose of the library, are going to get frustrated with the library, right? And we won't be able to buy as many books over time. The draft e-books bill that we've been working on and just released actually last week

does address that of what Jay and Sadie were saying, that concept that there are certain deals that are good for libraries. And we would never want to upend the good negotiations that libraries have already had. The point of these e-book bills in these states is to give some leverage to libraries in your future negotiations, right? Maybe you've got a good deal now. You got a rotating collection. You got this. You got it down to a price point that satisfies your community, meets the needs, all those, all these other things. But, you know, two years from now, that contract's going to come up for renewal. And if these states have laws that say, it's going to be governed by state law under consumer protection, and any unfair acts or

deceptive practices that are inside these contracts will be declared illegal. Now we have the coercive power of the state. helping us to negotiate fairer terms for libraries. I'm still confused as to why the shall provide thing in Maryland was actually a problem, because didn't like, wasn't there some state that sued another state because they're like, no, you legally have to buy our shitty, useless coal because we have a contract with you? Or is that because that was contract law? So it was contract law, and that's different than copyright law.

These two things slam into each other frequently. In Maryland, the concept was it forced a copyright holder to give a license that they normally would not want to give, and they don't have to. My quote on this, this is America. I don't have to sell to anyone. I don't want to sell to, right? I mean, yeah, sort of. Except when you do. Except what you do.

But in this case, because they were forcing them, and again, this is on Nebula, grounds. This is sewed the weeds. You know, there's differences of opinion. I had a very different opinion on this law than other people and, you know, we had some good I told you so. But the concept here was it's the forcing of a rights holder to grant a license that they were not going to grant. And that that is the role of Congress. Congress decides what compulsory licenses exist. Right. If I have to sell like a cover band, right? If I'm going to do a cover of a musician's song, I have to pay a mechanical fee. The Copyright Office and Congress are in charge of that.

Not me and definitely not the states. So when they overruled this, they said, you're forcing a rights holder to give a license that will interfere with the exclusive rights or copyright. That's not what the states do. The states are not allowed to do that. Only Congress can do that. And that's why it was ruled unconstitutional. It's interstate commerce.

Yeah, it's pre-aginition. Congress speaks in this space. therefore all other laws are preempted. And that's why Library Futures were pivoting. We're saying, fine, don't sell the libraries. We're calling their bluff, right? We're saying, if you sell in this state, you're subject to these state laws, which require reasonable terms, which we don't leave vaguely,

we define what we need out of a contract. And so that's what the difference is. We're staying fully in the realm of contract law instead of tiptoeing on top of copyright, which is what the Maryland law was accused of. In CDL, and you've got 50 copies of the latest James Patterson, and you decide to scan them all and make copies of all of them to loan out, as is you're right. And what happens when you weed 40 of them?

Then you have to, so where do you weed them to? Yeah, like, you get to keep that scanned copy and circulate it. Well, so shout out to one of my favorite people in the world, Michelle Wu. She's the Georgetown professor that came up with this concept in 2011. She hasn't fully, she didn't call it control just lending, but we worked closely together on the statement. She is the best. She and I used to do a CDL talk where we said, you could buy the book, keep the receipt to prove that you bought it. And then you could burn it, destroy it or whatever, right, and keep the digital copy.

Like that idea that we have to hold on to the digital copy is not always necessary to the equation, just the fact that you legally acquired it somehow. Now, I've been using in some of my talks a Mitch Hedberg clip, which is he does this whole thing on, he went to the store the other day and bought a donut and they gave him a receipt. And he was like, why do I need a receipt for this donut? I give you the money, you give me the donut. I do not need to prove that I bought this. donut. Unless I had this one shady friend who's like, hey, what's the purpose of your time? So I love Mitch Hedberg. So it's a great bit. It's one of his little 45 second ones. And it's totally enjoyable. But that proof of that receipt. So courts are looking for two things

nowadays. A license, because they demand it, or a receipt of some kind. You know, so maybe we do need a receipt with that donut, the book, to prove that we had ownership. And so the weeding of it, as long as the weeding does not end up in someone else getting a copy of that book, right? This 4th of July, I went to the public library book sale, as I always do, and they were selling those books, because that's a right under first sale. So we couldn't use those copies. If they dumpstered them, and somebody in their community didn't dumpster dive for them, as happens on Twitter all the time, but like, they threw out all these books. We should save them. As long as no one else is getting access, Jay, potentially the 40 that you,

weed out if they're gone forever or put it in salt mine. And this is what I'm talking about when I say preserving the power of the print. I think CDL changes the calculus with regards to weeding collections, right? What if we could all put it at an off-site facility and we all use some consortial CDL? Let's say that that novel becomes hot again in the future. A lot of people want to read it or it gets assigned or something. We'll have 170 copies that we can CDL because we're storing them somewhere. I don't know. You know, the thought of that is exciting to me. By the way, you mentioned something interesting.

James Patterson would have two markets, though, would it not? And I think this is where we're going to, two topics are going to collide. There's the print physical books that we bought, you know, that get checked out a million times when it's popular. And then there's the e-books. Oh, yeah. Are those two different markets? No, but are those two different markets? And I argue they are.

Yeah, because it's like one's licensed and one is like specifically sold as an e-book. and when it's just we scanned a physical book and it's under different terms. Yeah, CDL does not replace license ebook lending. First of all, some books are not available for digital lending in general. Works out of print, rights holders lack economic incentive to digitize the book or the original contracts unfindable. But CDL offers different features and serves different purposes, right? So having the same book available for lending as an e-book and CDL

serves vital public interests that I think are important here. And by the way, I'll be writing about this for the meekis brief that Library Futures files next week in this case. Yeah, I think wasn't that part of the Georgia State case where it was the argument was there was no license market so you couldn't be impacting the license market? Or was that a different case? No, no, you're totally right. They actually made the publishers produce data showing how much permissions requests and licensing. They made them show the resources. receipts. Yeah, they made them show the receipts. And check this out. This is the best part. Some of them were like, they made $4 over the last seven years in permissions or like $16 of the last 10 years of this book. And it was amazingly low. But what's funny about that is everyone's like, what does this mean for your average reserves library, right? Somebody that runs these things, right, that does the reserves or helps with reserves or works in circulation or access. Are you telling me they have to write each company and be like, can I have your market data for the last five years?

or whatever. No, no one's going to ever share that. So it became such a targeted thing. It's why copyright law gets in the weeds and it's terrible sometimes. It's because like your average reserves library is going to be like, I don't have no idea what the market is. Do I got to take that into account? And no, because the companies are going to share that data with you unless a court orders it. So you just have to use your best guess. Again, embrace low risk. Yeah, that's what I always say is it's copyright. Fair use determinations are made in court. They're not made by you as a professor. I work most with faculty.

It's not going to come to an issue with a decision until you're in court, at which point it's too late. But you can use the litmus test of the court decisions to make an assertion up front about whether your use is fair or not, right? We should still keep our thinking caps on when we're attempting to make a fair use. Yeah. But the faculty can. I can. I'm not a lawyer. I can't tell them.

that this is legally clear. I just said you are making... You could explain fair use to them in a way that makes a fair use assessment. I am telling you how to make a fair use assessment, which is different from legal advice for some reason. But imagine we needed a lawyer for every fair use determination. Yeah, exactly. It would upend the system, right?

So no theses or dissertations would be written. No art would be made. No preparation artists would work. YouTube would end as we know it. So there is that element that we are, we can be smart about our fair use determinations based on the case law that we have in front of us that we read and interpret and that average users can use fair use. I worked on developing, I had a Knight Foundation grant a few years ago on an app that was, can I fair use it? And people would enter their hypotheticals and it would be be beamed out to like 40 fair use scholars and they would just vote yes or no.

No, it depends. No maybes. No hemming and hog. Like, put your thumb on the scale. And we got amazing kind of feedback and data from this, which was a lot of fun, actually. That's cute. Can I fair use this? And we wanted to open it up to the public and artists and, you know, thesis writers and students and, you know,

to make it palatable and have this kind of quick vote that could happen from experts with no legal ramifications. But it would help them learn. and it would actually spit an answer out with cases and analysis for them to see. Maybe I can get the AI text generator to tell me if something's fair use. I bet you you sure could. It seems like that would be prime training, AI training right there, machine learning at its finest. Yeah, just feed it some like case law. Well, you don't feed GPT anything.

It's just already built. You just feed it prompts. So you don't have to actually train it. So you can put it in a obsidian. I'm really thinking about plugging into my own city. They made one for log seek as well. Yeah. To make it right my work emails. See, mine, I use my AI. It says, I am out of the office.

Oh, do you also have sane box, Kyle? Did I guess that you have? Up yours, woke moralists. We'll see who cancels who. Is that a new, Jordan? Yeah, that's after he dead named Elliot Page and got kicked off Twitter. He made a little video. And everyone's like, did someone fake the audio on this? Or I keep forgetting he really sounds like that. He sounds like Hermit the Frog.

He's so fucking funny. Anyway, so, Kyle, is there anything you want to plug? Any upcoming work? You mentioned your briefs, but he articles, things like that. I should throw in the notes for people to read. Sure. So we just launched last week the e-books policy paper from Library Futures along with the draft law that's adaptable to every state. This is a thing that we've been working.

on with our community for, you know, eight or nine months. I think I put the link in somewhere on that page. I lost the page already. I'm sorry. And I think that would be exciting because I think we can do stuff now with our state legislatures and seems to be that no one is against this except the American Association of Publishers. So I think there's an opportunity here for us to really consider

the e-books conundrum and solve it. I really think so. So thanks for having me on your show and allowing me to plug that great work. Yeah. Do you also want to plug any of your social media or anything else? Oh, so I cause all sorts of, yeah, no, I saw all, I cause all sorts of trouble usually on my Twitter account at Kyle K. Courtney. I'm happy to have people correspond with me on there.

We have some civil dialogues even every once in a while. It's amazing. When is the next round of copyright first responders and what states? Sure. So copyright first responders is the program I developed 10 years ago to serve my purposes here at Harvard because one person can't answer all the copyright questions at 73 libraries. And so it's spread to multiple states. Our next states are, I believe, North Carolina, Arkansas, and round two for New York copyright first responders. Maybe, wait, and California. Good gravy.

For those that are interested, you can go to Copyright First Responders.com. I believe I bought that. And also the CFR networks exist in multiple states. Jay was an early, saw one of the earliest incarnations of that when I was out at University of Illinois, urbanish. Yeah, I remember that. Yeah, and I remember from New Hampshire when there were also some sort of. some Massachusetts people in it. For the other states, are there people on like the fringes from other states who can join?

Yeah. So what we're planning to do after years of just hemming and hawing over this is to do a library futures copyright first responders, which will be national. My first experiment with multiple time zones was I did East Coast, West Coast CFO this year, which was University of Michigan. Why? Just because I like coffee, we did University of Michigan CFR combined with Copyright First Responder's Pacific Northwest, Cohort 3. And it worked well.

It was noon, lunchtime for our East Coast friends, and morning for our West Coast friends. So it worked out in the end. And as a copyright first responder myself, I highly endorse the little course. It's very fun. It lasts. How long does it last? Multiple. Yeah, yeah.

We do six sessions every other week, about two-hour blocks, and we have a great curriculum that will, it's practical, copyright curriculum for libraries, archives, and other cultural institutions, right? And then you also, like, we're encouraged to still meet after. The New Hampshire one is still meeting regularly, like at least once a month. Sometimes you show up.

The idea is the current awareness of the community you build together is a critical component of that. Learning's fun, but we set the floor, so that everyone has the same learning, so then we can, work in a safe space on hard topics, get things wrong, get things right, discuss. That's the real value of the program. Yeah, it's not just like a webinar or two that you do.

It's like an actual prolonged thing and you get to really know the other libraries and like library use cases of the people you're doing it with. And then you get this community after that's really nice. And like librarians are all different walks of librarianship as well. Yeah. Yeah. I highly, highly recommend. to do it. Thank you, Jay. All right. Thanks for coming on. Thank you for having me.

A pleasure. Keep an eye on the courtrooms over the next several weeks as all the filings are coming tomorrow from Internet Archive and the publishers and then next week from the Amicus brief people. Exciting times, people. I wish you all a good evening. All right. Good night.