Building a Collaborative Digital Collection, a
Necessary Evolution in Libraries
Michelle M. Wu
Law Library Director and Professor of Law
Georgetown University Law Center
111 G Street NW
Washington, DC 20001
Email: mmw84@law.georgetown.edu
(v) 202-662-9161
Abstract: Law libraries are losing ground in the effort to preserve information in
the digital age. In part, this is due declining budgets, user needs, and a caution
born from the great responsibility libraries feel to ensure future access instead of
selecting a form that may not survive. That caution, though, has caused others,
such as Google, to fill the silence with their vision. Libraries must stand and
contribute actively to the creation of digital collections if we expect a voice in
future discussion. This article presents a vision of the start of a collaborative,
digital academic law library, one that will harness our collective strengths while
still allowing individual collections to prosper. It seeks to identify and answer the
thorniest issues --- including copyright --- surrounding digitization projects. It
does not presume to solve all of these issues. It is, however, intended to be a
call for collective action, to stop discussing the law library of the future and to
start building it.
1
Table of Contents
Introduction………………………………………………………………………………………………..………1
Part I: Differentiating from Google Books and Other Digitization Projects………….3
Part II. Copyright………………………………………………………………………………………………..7
A. History…………………………………………………………………………………………….8
B. 17 U.S.C §108………………………………………………………………………………….12
C. Format Shifting………………………………………………………………………..…….16
D. Likely Objections from Publishers and Copyright Holders………………..21
Part III: History of libraries and interlibrary loan……………………………………….………24
Part IV: Collaborative Collection Building: Access and Permanence…………….……30
A. Dedicated staff…………………………………………………………………………..……31
B. Storage and collection development………………………………………………..34
C. Digitization………………………………………………………………………………………36
Part V: Other Internal and External Objections…………………………………………………37
Part VI: Underlying technologies……………………………………………………………………….44
Conclusion……………………………………………………………………………………………………….46
2
Introduction
Imagine a world where your users were able to access every resource
they needed, regardless of time, space, and resources. While that vision may
not yet be reachable, libraries do have within their grasps the possibility of
access to much larger collections than any one of them currently holds,
extending even beyond what is available through interlibrary loan and
consortium efforts.
The United States has 200 ABA-accredited law schools, and collectively,
they spend over 230 million dollars annually on building and maintaining their
library collections.1 Within that 230 million, significant duplication exists, even
for infrequently used materials, driven in part by the ABA Standards and various
law school rankings.
In seeking a more useful solution for all of our users, law libraries can
gain perspective from states like Florida, which have reduced costs through
statewide collection building,2 and public, non-law libraries, which have long
considered the holdings of their collective branches in their acquisition policies. 3
These models can be exported and expanded to academic law libraries,
1See
2009 ABA takeoffs.
Roy Ziegler and Deborah Robinson, Building a Statewide Academic Book Collection, 53 FLORIDA LIBRARIES 21
(2010).
3 Catherine Gibson, “But We’ve Always Done It This Way!” Centralized Selection Five Years Later, in PUBLIC
LIBRARY COLLECTION DEVELOPMENT IN THE INFORMATION AGE 33-40 (1998).
2
1
institutions that may not be great in number regionally but are substantial
nationally. This article proposes that academic law libraries pool resources
through a consortium to create a centralized collection of legal materials,
including copyrighted materials, and to digitize them for easy, cost-effective
access by all of its members. For the sake of expediency, this consortium effort
will be called TALLO (Taking Academic Law Libraries Online) hereinafter.
Others entities, such as Google, have made similar attempts at a digital
library, but TALLO differs from those in that it neither assumes privileges
explicitly denied in the copyright code nor does it underestimate the flexibility
that copyright can provide to a user. It argues that it is possible to build a digital
library that respects both intended beneficiaries of the Copyright Clause --copyright owners and society --- while testing commonly-held assumptions
about the limitations of copyright law. In balancing these goals, TALLO permits
circulating exactly the number of copies purchased, thereby acknowledging the
rights inherent in copyright, but would liberate the form of circulation from the
print form.
This article will be divided into six parts: Part I will describe how TALLO
differs from the Google Book project, the HathiTrust, and other such digitizing
endeavors. Part II will address copyright objections and explain why they should
not trouble the digitization aspect of TALLO; other aspects of the proposal are
2
already in place under traditional interlibrary loan practices, so they will not be
addressed in great depth.
Parts III-VI deal with the more practical aspects of implementation,
providing one example of how libraries could leverage their collective resources
to build a stronger collection for all of their users. Specifically, Part III provides a
brief description of the history of academic law libraries, illustrates how no
library today can afford to build as comprehensive a collection as in the past, and
shows how collaboration would achieve a stronger collection than can be
constructed by any individual library. Part IV articulates a model for such
collaboration; Part V will address the major library, user, and external objections,
outside of copyright, to centralizing collections; and Part VI will describe the
minimum technologies necessary to fully exploit the collection hypothesized in
Part IV.
Part I: Differentiating from Google Books and Other Digitization Projects
With the amended Google Books settlement in tatters,4 those developing
digitizing plans might now hesitate in their efforts. However, the recent Google
Books decision is limited by the surrounding facts and differs significantly from
any library project currently in progress, so no other project should find its goals
4Authors
Guild v. Google, 05 Civ. 8136 (2011 SDNY) at
http://www.nysd.uscourts.gov/cases/show.php?db=special&id=115
3
completely frustrated by the most recent ruling. In particular, TALLO can be
easily distinguished from the Google Books project as well as other similar
undertakings and thus, should not be vulnerable to the same criticisms.
The distinction is most straight forward with Google Books. In crafting its
vision during its initial stages and then later through the proposed settlement
agreements, Google made several key decisions: it digitized materials without
permission and without purchasing the works;5 its default position on any work
was inclusion unless the author opted out;6 it negotiated to put the works into
commerce;7 and in the for-profit plan, it aimed to be the publisher/provider of
multiple copies to multiple purchasers.8 The critical fault lines in this proposal
dealt with profit and control: reducing the authors’ ability to make a living by
making materials available to the public without their consent,9 and profiting
from the works of others without remuneration (or in the settlement agreement,
with non-negotiated remuneration). The proposed settlement plan and its
amended version partially attempted to address the latter concern by creating a
registry in which authors could register for payments related to the use of their
5
http://books.google.com/googlebooks/history.html
Authors Guild, supra note 4, at 4.
7
Google Books Amended Settlement Agreement can be found at
http://www.googlebooksettlement.com/Amended-Settlement-Agreement.zip (last visited
03/30/11)
8
Id.
9
Authors Guild, supra note 4, at 26-7.
6
4
works. The amended settlement was denied for various reasons, one of which
was that it did not take into account sufficient interests (e.g., interests of foreign
entities and authors who were more interested in exposure than profit).10
TALLO differs from Google Books in that it proposes to digitize only
materials legitimately obtained --- through purchase or gift --- by a library. It
would contemplate circulation only of the number of copies owned, and
therefore, it would not damage the author’s ability to continue selling copies in
the marketplace. Further, it would make no profit from use but would only use
the materials for the purposes for which they were originally obtained --academic research. Last, and most importantly, the works would only be
accessible to library users, at least until such time as the work fell into the public
domain or the authors agreed to wide release.
As to other efforts within the United States, such as that of the
HathiTrust11, the Open Content Alliance12, or Emory13, they focus on making
publicly available only materials in the public domain, licensed under a Creative
Commons (or similar) license, or approved by copyright owners. The HathiTrust
does preserve more materials than it makes available, but any work still
protected by copyright remains inaccessible in full-text until such time copyright
10
Id. at 30-35, 40-45.
11
http://www.hathitrust.org/ (last visited 3/31/11)
12 http://www.opencontentalliance.org/ (last visited 3/31/11)
13 http://guides.main.library.emory.edu/digitization
5
protection expires.14 While this position is understandable and safe, it is
considerably different from the approach set forth here, in which it is argued
that making available the digitized form of printed works (even those protected
by copyright) can be legal and is covered by U.S. laws on copyright. Should such
an argument succeed, it should be noted that materials digitized by other
projects theoretically could be released, in a limited manner, to a broader
audience than they currently enjoy.
Abroad, countries and institutions have also undertaken mass digitization
projects, 15 but these are beyond the scope of this paper, as their actions will be
governed by copyright laws in their respective countries.
Having demonstrated why TALLO is dissimilar to any existing digitization
project, the next section will articulate TALLO’s position on copyright, as this
position is integral to the project’s success.
Part II. Copyright
Copyright has been and continues to be the greatest hurdle facing any
progress towards transforming library collections. Even though libraries
subscribe to a wide range of databases, much of a library’s retrospective
14
HathiTrust’s policy on copyright can be found at http://www.hathitrust.org/copyright (last
visited 03/30/11).
15
http://www.nytimes.com/2009/12/15/world/europe/15france.html (last visited 3/31/11)
6
collection (and indeed, most current monographic acquisitions) exists in print or
microform only.
To move to a more efficient and cost-effective way of transporting
information to our users, regardless of location, libraries must be willing to test
the assumptions behind copyright protection. Libraries are at a stage in
development where we must move forward and address these issues or find
ourselves lagging so far behind other industries that we will be unable to catch
up. The approach advocated by this article is modest, reasonable, and reflects
existing library lending norms.
A. History
Any meaningful discussion about copyright starts with understanding the
origins of protection within the United States. A comprehensive history is
unnecessary, but an exploration of the intent behind copyright is imperative. For
those readers wishing a more detailed history, please see Patry, Bowker and
Hamilton.16
Though copyright existed long before 1710,17 adopted for reasons
ranging from preventing printing errors to demonstrating the value of a work to
controlling the distribution “seditious” materials, this article will treat the Statute
16Marci
Hamilton, THE HISTORICAL AND PHILOSOPHICAL UNDERPINNINGS OF THE COPYRIGHT CLAUSE (1999). Richard Rogers
Bowker, COPYRIGHT: ITS HISTORY AND ITS LAW (1912); Willliam F. Patry, PATRY ON COPYRIGHT (2010).
17 Patry, supra note 16 at §§1:2 - 1:4.
7
of Anne as its beginning. The Statute of Anne was England’s first grant of
copyright protection to authors; prior to this enactment, protection had been
extended, but only to printers. The preamble of the Statute of Anne reads,
“An Act for the Encouragement of Learning, by Vesting the Copies of Printed
books in the Authors or Purchasers of such Copies, during the Times therein
mentioned…”18
Learning was clearly the stated goal of this copyright grant, not profit nor
monopoly, and authors’ rights and profit were considered only so far as they
facilitated the ultimate goal of learning.19
At the Constitutional Convention of 1787, the Statute of Anne’s influence
was apparent. The committee charged with the task of drafting the copyright
clause was asked to propose language that would allow Congress to: “…secure
to literary authors their copy rights for a limited time,” “…grant patents for
useful inventions,” and “…secure to Authors exclusive rights for a certain time.”20
These were listed as three different interests and no mention was made of
societal benefit. However, when the committee returned on Wednesday,
September 5, 1787 with proposed language, they had combined the concepts
18
Id. at §1:9.
Id.
20 1 DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED STATES 130-31 (1894).
19
8
and added a key phrase. The proposal was adopted without dissent,21 and read
“The Congress shall have the power … To promote the progress of science and
useful arts by securing for limited times to Authors and Inventors the exclusive
right to their respective writings and discoveries.”22
As with the Statute of Anne, the clear goal of the Copyright Clause as
adopted was not to protect authors; it was to promote advancement of learning
and public knowledge.23 The protection of authors was merely the means to the
end. This priority of rights has been affirmed and reaffirmed by courts over the
years, in language similar to that used in Fox Film, “The sole interest of the
United States and the primary object in conferring the monopoly lie in the
general benefits derived by the public from the labors of authors.”24 At the heart
of copyright, then, is the public good.
With that key point in mind, I will now address the copyright issues
inherent in this project. Portions of this project (infra, Section IV) --- collection,
remote access --- are already permitted by the copyright code and are widely
21
3 DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED STATES 576-78 (1894).
Id.
23 Melville B. Nimmer, NIMMER ON COPYRIGHT : A TREATISE ON THE LAW OF LITERARY, MUSICAL AND ARTISTIC PROPERTY, AND
THE PROTECTION OF IDEAS (LexisNexis) §1.03 (through update December 2010).
24 Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932). See also: “The monopoly privileges that Congress may
authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the
limited grant is a means by which an important public purpose may be achieved. It is intended to motivate
the creative activity of authors and inventors by the provision of a special reward, and to allow the public
access to the products of their genius after the limited period of exclusive control has expired.” Sony v.
Universal City Studios, 464 U.S. 417 at 429 (1984),
22
9
practiced by libraries nationwide. The digitization portion, on which the project
depends, is the part that would likely trigger a copyright challenge under 17
U.S.C. §106(1).
However, a reading in line with the spirit of the Code allows restrictions
on copyright owners’ rights under the appropriate conditions. In fact, fair use
and other exceptions in the code were developed in recognition that copyright is
not an absolute right. Further, in a nod to technological advancements, the
Supreme Court has already acknowledged that it “… must be circumspect in
constructing the scope of rights created by a statue that never contemplated
such a calculus of interests”25 and that “When technological change has
rendered its literal terms ambiguous, the Copyright Act must be construed in
light of this basic purpose.”26
In recent years, the balance of copyright appears to have tipped more
definitely towards the rights of copyright owners,27 with legislators unable or
unwilling to return balance through new legislation. With existing statutory
language being ill equipped to handle new technologies, wealthy and powerful
copyright holders have been quick to use technology to expand protection of
25
Sony, supra note 24 at 431.
Twentieth Century Music Corp. V. Aiken, 422 U.S. 151, 156 (1975).
27 See Eldred v. Ashcroft, 537 U.S. 186 (2003), which permitted extension of term limits; New York Times Co.
v. Tasini, 533 U.S. 483 (2001), which restricted some database use of articles contained collective works
where the right to include in such a digital collection was not explicit; and the Digital Millennium Copyright
Act of 1998 (hereinafter, DMCA), which contained restrictions on anticircumvention of technologies used to
protect copyright.
26
10
their works or to intimidate users.28 TALLO is an attempt to restore balance to
copyright, reminding owners that societal benefit appropriately sits on the other
side of the scales.
TALLO presses for a greater utilization of technology, while remaining
constant in meeting the goal and supporting the means behind the Copyright
Clause. It seeks to protect an author’s right while expanding the base of
knowledge available to users beyond what any individual library could achieve
independently. It does not permit more copies to circulate than were
purchased, nor does it permit editing or disassembly of the copyrighted piece.
Since most libraries currently cannot afford many of these documents, such a
collection would arguably create a net increase of profits to some vendors and
authors as the consortium would be able to afford materials that none of its
member libraries otherwise could have or would have acquired. There may be
some losses, in that fewer multiple copies of an individual title might be
purchased, but law libraries have been facing budget cuts for the last decade,
one could argue that this decrease could not necessarily be attributed to TALLO.
B. 17 U.S.C §108
28
See U.S. v. Elcom, 203 F.Supp.2d 1111 (2002) where a Russian student was arrested after giving a
conference presentation on how to circumvent Adobe’s e-book protections and Universal City v. Reimerdes
(DeCSS case), 111 F.Supp.2d 346 (2000) prohibiting even linking to a site that gives circumvention
information.
11
The proposed digitization activities arguably fall within 17 U.S.C §108,
either (a) or (c). Under (a),29 the proposal meets the three requirements set
forth in the statute. First, digitization and distribution would not be made for
commercial gain and would be handled in a manner completely consistent with a
library’s function. Since the library would not be increasing the number of copies
available for use at any given time, the digital copy would not serve as a
substitute for an additional subscription or purchase. Should demand be so great
that multiple copies are needed simultaneously, TALLO would need to
purchase/license additional copies or individual libraries within the consortium
would need to make local purchases. Second, the materials would be available
both to those served by the institution as well as to walk-in patrons. Third, a
copyright statement overlay could be added to each digital page of each
publication, ensuring that the user recognizes that the work is protected under
copyright.
29
“(a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not
an infringement of copyright for a library or archives, or any of its employees acting within the scope of
their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in
subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this
section, if —
(1) the reproduction or distribution is made without any purpose of direct or indirect
commercial advantage;
(2) the collections of the library or archives are (i) open to the public, or (ii) available not only
to researchers affiliated with the library or archives or with the institution of which it is a part, but
also to other persons doing research in a specialized field; and
(3) the reproduction or distribution of the work includes a notice of copyright that appears on
the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend
stating that the work may be protected by copyright if no such notice can be found on the copy or
phonorecord that is reproduced under the provisions of this section.”
12
Alternatively, under 17 U.S.C. §108(c),30 libraries could advance the
argument that digitization is permitted as an archival function, as the print form
is obsolete. The digital copy would serve as the replacement copy permitted by
statute. This reading is likely to encounter significant challenge, both within and
outside of the library community, as the statute states that “…a format shall be
considered obsolete if the machine or device necessary to render perceptible a
work stored in that format is no longer manufactured or is no longer reasonably
available in the commercial marketplace.”31 Print works are still perceptible,
though one could argue that Betamax tapes and other technologies seen to be
obsolete are still technically perceptible and yet could legitimately be archived in
a different format under this section. Machinery to read these technologies is
commercially available, though in a resale market. Therefore, obsolescence
appears to be partially subjective, despite the language of the statute, and
libraries could take the approach that print falls within the definition especially
as users show greater and greater preference for the electronic form.
30“
(c) The right of reproduction under this section applies to three copies or phonorecords of a published
work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged,
deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if —
(1) the library or archives has, after a reasonable effort, determined that an unused
replacement cannot be obtained at a fair price; and
(2) any such copy or phonorecord that is reproduced in digital format is not made available to
the public in that format outside the premises of the library or archives in lawful possession of such
copy.
For purposes of this subsection, a format shall be considered obsolete if the machine or device
necessary to render perceptible a work stored in that format is no longer manufactured or is no longer
reasonably available in the commercial marketplace.”
31 17 U.S.C. §108(c)(2) (2006).
13
Subsection (c) also requires that the library first check to see if “…an
unused replacement cannot be obtained at a fair price,” and in some cases, a
digital version may be available for license or purchase. In the case where a
digital version is only available for license, a library could make the argument
that such a license is not equivalent to either the print copy or a digital copy they
would make, as both of these latter items would be owned by the library instead
of licensed, and accordingly, an unused equivalent replacement is not available
in the marketplace.
A potential objection to applying section 108 is the limiting text in
subsection (g),32 which states that a library may not engage in “concerted
reproduction or distribution of multiple copies…” Some would argue that the
proposed consortial action in this paper is exactly what was intended to be
proscribed by subsection (g), and that permitting such actions by libraries would
reduce copyright owners’ ability to make a living wage off their works.
32
“(g) The rights of reproduction and distribution under this section extend to the isolated and unrelated
reproduction or distribution of a single copy or phonorecord of the same material on separate occasions,
but do not extend to cases where the library or archives, or its employee —
(1) is aware or has substantial reason to believe that it is engaging in the related or concerted
reproduction or distribution of multiple copies or phonorecords of the same material, whether made
on one occasion or over a period of time, and whether intended for aggregate use by one or more
individuals or for separate use by the individual members of a group; or
(2) engages in the systematic reproduction or distribution of single or multiple copies or
phonorecords of material described in subsection (d): Provided, That nothing in this clause prevents a
library or archives from participating in interlibrary arrangements that do not have, as their purpose
or effect, that the library or archives receiving such copies or phonorecords for distribution does so in
such aggregate quantities as to substitute for a subscription to or purchase of such work.”
14
However, the proposal’s limitation on circulation would address the
concerns underpinning subsection (g). The proposed consortium would be
required to purchase multiple copies of any item that it anticipates will be
consistently, simultaneously in demand; it would not be free to circulate more
copies than it had legitimately acquired.
Indeed, libraries outside of this proposed consortium could accomplish a
similar goal as that proposed in this project by traditional interlibrary loan by
simply exchanging print materials; the costs would be higher, but those costs
would be related to shipping and retrieval of the print item, not costs from the
purchase of additional copies. Please note that individual libraries would still
collect at the local level to meet the regular needs of their patrons. Whether
under traditional interlibrary loan or TALLO’s approach, this practical aspect
would remain the same, for no library could solely depend on a collection whose
volumes could be used or recalled by users throughout the nation. Immediate
access to TALLO’s resources would not be as certain as it would be for a locally,
individually owned item.
As this project contemplates a more efficient method of sharing
resources in a manner consistent with interlibrary loan principles, subsection (g)
15
should be inapplicable to TALLO.33 Alternatively, if these actions are not seen as
being consistent with interlibrary loan principles, an argument could be made
that any item in the consortium’s collection is co-owned by all member
institutions; the participating libraries would not be substituting ownership with
access, as each participating library will own a share of that each title in the
consortium’s holdings.
C. Format Shifting
A more straightforward justification of digitization is to challenge the
common assumption that digitization of a full work outside the plain language
parameters of the relevant statutes always qualifies as infringement. Instead, I
advocate that digitizing a text and retaining its original structure should be
considered permitted format shifting.
We start by inspecting the exclusive rights of copyright, where two
author interests are evident. The first is to ensure that the author reaps the
profits coming from her work,34 and the second is to afford an author control of
33While
lending a digital copies will create some temporary copies on users’ machines and servers, this type
of copyright is protected. Earlier disputes over such buffer copies and the like (see U.S. Copyright Office,
DMCA Section 104 Report (August 2001) available at http://www.copyright.gov/reports/studies/dmca/sec104-report-vol-1.pdf) have been replaced by recent cases in which courts see this as an incidental activity
and not necessarily an infringing one. See Cartoon Network LP v. CSC Holdings, 536 F.3d 121, 127 (2008).
34 “[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable
right to the use of one's expression, copyright supplies the economic incentive to create and disseminate
ideas.” Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539 at 558 (1985)
16
the context of her work.35 In this project, the author will have already received
her profit when the physical book was sold, and digitization, so long as it displays
the full text in context, would not distort the copyrighted work in such a way to
frustrate the author’s authorization in the original printing.36 As the number of
copies of a work in circulation would not exceed the number that the author
sold/authorized, s/he would also be unable to assert damage in flooding the
marketplace with unauthorized copies.
The analysis continues with a reaffirmation that a work is copyrighted,
not the form.37 While works must be in a fixed form to qualify for copyright
protection, the protection granted is for the work itself. While some forms are
necessarily parts of some types of works (e.g., sculpture), this cannot be said of
most printed works.38 The form in which a work is fixed is irrelevant, as Congress
recognized the importance of media neutrality when it adopted the language in
the Copyright Act.39 Digitization changes only the form, and “the ‘transfer of a
35
New York Times v. Tasini, 533 U.S. 483 at 504 (2001).
In both the Greenberg and Tasini cases, the Court determined that publishers would be liable for
infringement if they took an author’s work out of the collective work when the only authorization that the
author gave was inclusion in that collection. Publishing the work in digital format, if it had been the same
collective work initially published in print, would not have been infringing. New York Times v. Tasini, 533
U.S. 483 at 501 (2001). Greenberg v. National Geographic, 533 F.3d 1244 at 1258 (2008).
37 17 U.S.C. §102 (2006).
38 There could be some exceptions in historical materials such as illuminated texts.
39 H.R. REP. NO. 94-1476, at 52 (1976).
36
17
work between media’ does not ‘alte[r] the character of’ that work for copyright
purposes.”40
Once a copyrighted work is sold, the first sale doctrine permits a
purchaser of a book to use and dispose of the book in any manner he chooses:
sale, discard, rental, or destruction.41 The discussion in the House at the time
the relevant statute (17 U.S.C. §109) was adopted illustrates that actions beyond
transfer of ownership were included: “the outright sale of an authorized copy of
a book frees it from any copyright control over its resale price or other
conditions of its future disposition. A library that has acquired ownership of a
copy is entitled to lend it under any conditions it chooses to impose…”42 The
doctrine supposes a user’s full use and enjoyment of the purchased item. Under
this doctrine (and fair use), users have been ripping CDs to mp3 players for their
own use, and even copyright owners in litigation have conceded that this
practice is lawful.43 If such a practice is lawful, then converting a print text to a
40
Tasini, supra note 35.
17 U.S.C. 109 (2006).
42 H.R. REP. NO. 94-1476, at 79 (1976).
43 “The record companies, my clients, have said, for some time now, and it's been on their Website for some
time now, that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it
onto your iPod.” Oral argument transcript, MGM v. Grokster, page 12 (Tuesday, May 29, 2005) at
http://www.supremecourt.gov/oral_arguments/argument_transcripts/04-480.pdf (last visited January 20,
2011).
41
18
digital version should be equally legitimate so long as control of the converted
text remains with the original title holder.44
Should the first sale doctrine argument fail, libraries could also
extrapolate from the reasoning in the Sony case to justify format shifting. In
Sony, VCR makers were sued for producing equipment that could violate the
copyright of authors and producers of televised programs. While the users, the
actual infringers of copyright, were not sued, the court’s language signaled that
fair use could evolve with technology and that some novel, unauthorized uses
could qualify for fair use. In Sony, copying a televised program, though
impinging on an author’s exclusive right to duplicate his/her work, was not seen
as infringing.45 “A challenge to a noncommercial use of a copyrighted work
requires proof either that the particular use is harmful, or that if it should
become widespread, it would adversely affect the potential market for the
copyrighted work. “46
44
Admittedly, the first sale doctrine has typically applied only to distribution not reproduction. However, on
the theory that digitization is actually a disposition of an item instead of a reproduction, the doctrine could
still apply. That said, the owner may need to destroy the original copy for such an action to be considered a
true disposition.
45 “This practice, known as "time-shifting," enlarges the television viewing audience. For that reason, a
significant amount of television programming may be used in this manner without objection from the
owners of the copyrights on the programs. For the same reason, even the two respondents in this case, who
do assert objections to time-shifting in this litigation, were unable to prove that the practice has impaired
the commercial value of their copyrights or has created any likelihood of future harm.“ Sony, supra note 36
at 421.
46 Sony, supra note 24 at 451.
19
All reported judicial opinions thus far on format conversion have involved
defendants who allowed users to download and retain copies of copyrighted
works they had not purchased,47 who have profited from the sale or servicing of
unauthorized copies, or who downloaded unauthorized copies for their own use.
All of these can easily be differentiated from the proposal in this paper, as we
propose legally acquiring an item and subsequent shifting its format for the
same use.
Conversion for self-use, where the individual in question has obtained a
copy legally and where the converted format serves the same basic purpose, has
not been ruled as infringing. An author may not forbid a library’s circulation of
an item it has purchased, and this project anticipates exactly this action, just in a
different format. The conversion would not involve an alteration of the format
or purpose of the work; it would still be a book in readable form. It does not
involve reinterpretation as an audio version might, nor translation as a foreign
version would, nor alteration as an abridged version would. Essentially, the
nature of the use of the converted copy would be the same as that of the
original.
47
UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 352 (S.D.N.Y. 2000) and A&M Records, Inc. v.
Napster, Inc., 239 F.3d 1004, 1019 (9th Cir. 2001).
20
Having met both the author’s and society’s interests in copyright, format
shifting should be a permitted activity under fair use or as a disposition within
the protection of the first sale doctrine. Applied to libraries, where documents
are protected in their new formats, this expanded application would continue to
protect copyright owners’ interests. However, it would be naïve to assume that
such protection and alignment with the spirit of copyright would reduce
resistance.
D. Likely Objections from Publishers and Copyright Holders
As libraries have already seen, publishers have used new technologies to
command control over works beyond what could have been controlled with
printed works.48 They are replacing ownership with licensing, where they can
control not only the number of users but also the number of uses.49 The same
type of actions --- resale, for example --- with print materials cannot be similarly
constrained easily.50 Given this trend in publishing, it would be remarkable if the
industry did not object to libraries digitizing printed materials.
48Todd
C. Adelmann, Are Your Bits Worn Out? The DMCA, Replacement Parts, and Forced Repeat Software
Purchases, 8 J. TELECOMM. & HIGH TECH. L. 185 (2010); Christopher Moseng, The Failures and Possible
Redemption of ht DMCA Anticircumbention Rulemaking Provision, 12 J. TECH. L. & POL'Y 333 (2007); Niva
Elkin-Koren, Making Room for Consumers Under the DMCA 22 BERKELEY TECH. L.J. 1119 (2007).
49Julie Bosman, Publisher Limits Shelf Life for Library E-Books, NY TIMES at
http://www.nytimes.com/2011/03/15/business/media/15libraries.html?scp=1&sq=harper%20collins&st=cs
e (last visited 3/29/11)
50 Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908).
21
For the reasons set forth above, though, such resistance could be
countered by statutory text, constitutional intent, and juridical documents on
copyright and fair use. The one argument that has not yet been articulated,
though, is also likely the strongest one in terms of market effect: if format
shifting is broadly accepted, speculative future harm could be great. Individual
users are unlikely to protect documents, and in fact, as shown with respect to
protected musical works, 51 are dismissive of copyright protections and very
likely to share electronic documents with others. If users could transform their
printed libraries into electronic versions, what effect might that have on
publishers’ and copyright owners’ abilities to sell copies to non-owners? Could
Google then digitize the world’s libraries as long as it obtained the original copy
legally?
The nation has already seen similar action in the music industry, and by
following its progress through the courts, we have a guide on how to
appropriately address such a harm. Restitution is properly sought from those
who illegally make copies and distribute the work, not those who have actually
purchased the work and are making use of the text in a manner consistent with
that purchase. Neither a user uploading a copy for mass download nor Google
51
For a history of the RIAA lawsuits against individual music swappers, see David W. Opderbeck, Peer-toPeer Networks, Technological Evolution, and Intellectual Property Reverse Private Attorney General
Litigation, 20 BERKELEY TECH. L.J. 1685(2005) and Genan Zilkha, The RIAA;s Troubling Solution to File Sharing,
20 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 667 (2010).
22
providing simultaneous text access to multiple users would fall within this latter
definition.
Last, I would encourage copyright owners to revisit the aftermath of the
Sony case. Despite studios’ concerns for drastic market damage, the legitimizing
of the actions and equipment they had opposed actually increased their profits
and created new, profitable industries and opportunities.52 Similar potential
exists here, and opposing a legitimate action only out of fear of unknown
consequences neither advances their interests nor society’s.
Should Congress see format shifting as an extreme danger to copyright
holders and enact explicit legislation to restrict it, libraries should advocate for
language that mirrors section 108 of the code, creating an exception for libraries
and archives, as these entities are not seeking unrestricted distribution. Their
goals, for materials in any format, remain the same, which is the use and
preservation of knowledge while respecting copyright protections.
Part III: History of libraries and interlibrary loan
Moving away from the barriers to digitization, I would like now to
illustrate why TALLO or a similar proposal is necessary for libraries. With the
costs of print materials rising dramatically each year, the uncertainty of licensing
52Edward
Lee, Technological Fair Use, 83 S. Cal. L. Rev. 797 at 799 (2010).
23
over ownership, the reliability (or unreliability) of free online sources, and the
costly dependence on physical interlibrary loan, libraries are constantly
struggling to find the resources to provide their users with the information they
need in a manner which is likely to result in the information being used. Taking a
look at libraries’ progress through the years, it is evident that the landscape has
changed significantly and so must our practices.
In the changing social climate in the United States before the American
Revolution, there were no public libraries and most individuals had little leisure
time in which to contemplate the use of libraries.53 The libraries that did exist,
existed privately, held by the privileged and wealthy. Lawyers collected
materials for practice,54 and it was not until social, economic, and political
conditions stabilized that public libraries came into being.55 Bar libraries were
the first, group-use law libraries to be formed, with the Philadelphia Bar Library
founded in 1803 and the Social Law Library the year after.56
With industrialization and greater regulation, corporations found value in
higher education, seeing it as a less expensive training ground for workers.57 The
53
GLEN-PETER AHLERS SR., THE HISTORY OF LAW SCHOOL LIBRARIES IN THE UNITED STATES: FROM LABORATORY TO CYBERSPACE
4-5 (2002).
54 Id.
55 ELMER JONSON & MICHAEL HARRIS, HISTORY OF LIBRARIES IN THE WESTERN WORLD 4-5, 200 (3d 1976).
56 ERWIN C. SURRENCY, A HISTORY OF AMERICAN LAW PUBLISHING 248 (1990).
57 Id.
24
growth of universities prompted a flourishing of the academic library.58
University law libraries were established in the early 1800s, but law school
libraries were not particularly well developed until the early-20th century. By
1879, there were 48 law schools in the nation, but very few of them had
dedicated libraries.59 The few in existence were typically expected to have
access only to materials relevant in its home state and United States Supreme
Court decisions, and it was not until 1912 that any minimum standard for law
school libraries was adopted. In that year, the Association of American Law
Schools (AALS) promulgated a minimum standard for law library collections of
5,000 volumes.60 Not surprisingly, even after this standard was adopted, the
focus of most collections remained on primary sources. After World War II,
though, the number of legal titles expanded greatly, due to a change in printing
technology which permitted more limited runs.61 This enabled more specialized
publications that would not have been fiscally viable in earlier years.
Despite the growing number of titles available for purchase, law libraries
quickly recognized that, individually, they would need access to materials
beyond their own collections. That access was provided in part by interlibrary
loan, a service through which scholars could use resources not otherwise
58
Jonson, supra note 55, at 273-4.
Ahlers, supra note 53, at 11.
60 Id. at 20-21.
61 Surrency, supra note 56, at 156.
59
25
available at their libraries without the burden or expense of travel. It allowed
libraries to meet needs without increasing their expenses exponentially, and it
allowed library budgets to be used for common, recurring needs instead of
materials of limited value to the overall collection and future library patrons.
What was allowed to be loaned and what a law library was expected to collect
was determined both by the American Bar Association (ABA) Standards and by
the Copyright Act.62 The ABA Standards set the minimum requirement for law
library collections, 63 and any law school hoping to be accredited or reaccredited
was expected to satisfy its standard of a core collection.
The Copyright Act was instrumental in shaping law library collections in a
slightly different manner. Instead of specifying what must be collected, it
dictated what should not be borrowed. Materials to be used in interlibrary loan
were restricted to materials infrequently used; libraries were prohibited from
substituting ILL for owning an item.64 The National Commission on New
Technological Uses of Copyright Works (CONTU) also put forth a report with
recommended guidelines on when libraries should purchase an item instead of
62
17 U.S.C. §101 et seq. (2006).
ABA STANDARDS FOR APPROVAL OF LAW SCHOOLS 606 and Interpretation 601-1 (2009).
64 17 U.S.C. §108(g)(2) (2006).
63
26
obtaining it through interlibrary loan.65 While not binding, most libraries have
voluntarily adopted these recommendations.
Unlike earlier eras, information today is more readily available, in varying
forms and reliability, and more overwhelming in quantity, both from the
advancement of technology66 and the development of less costly printing
practices. To illustrate, in 1860, there were only 48 print periodicals
nationwide67, whereas we now have 1615.68 Production of law monographs has
also been steadily increasing, with approximately 5,000 new titles published in
the United States each year.69 At one point in time, library collections were
anticipated to double in size every sixteen years,70 but with access
supplementing ownership, that time has shortened considerably and the
definition of a collection has become more elastic. Even as libraries extend their
reach, the types and numbers of materials libraries are expected to offer to their
users only proliferate.
65
Nat'l Comm'n on New Technological Uses of Copyrighted Works, Final Report of the National Commission
on New Technological Uses of Copyrighted Works (1978). Also available at:
http://www.eric.ed.gov/PDFS/ED160122.pdf (last visited January 24, 2011).
66 “Between the dawn of civilization and 2003 there were 5 exabytes of data collected. Today 5 exabytes of
data gets collected every two days.” Kenny McIver, Google Chief Eric Schmidt on the Data Explosion, GLOBAL
INTELLIGENCE FOR THE CIO (August 4, 2010), http://www.i-cio.com/blog/august-2010/eric-schmidt-exabytes-ofdata.
67 Surrency, supra note 56, at 190.
68 From Washington and Lee’s Submission and Ranking page at http://lawlib.wlu.edu/lj/index.aspx (last
visited March 25, 2010).
69 Bowker’s Industry Statistics at http://www.bowker.com/bookwire/IndustryStats2009.pdf (last visited
March 25, 2010).
70 Jonson, supra note 55, at 275.
27
The expansion of legal scholarship in interdisciplinary, transnational,
comparative, and international arenas requires resources not traditionally
collected by law libraries, thereby taxing collection budgets, especially those of
stand-alone law libraries. As rankings and reputation are driven in part by
scholarship,71 and scholarship requires both informational resources and the
expertise to use/access them, demand is unlikely to decrease.
As a result, collection budgets are rarely sufficient to collect all materials
needed for research, and in law libraries, the financial strain has been amplified
by vendor consolidation and the electronification of legal resources.
Consolidation reduces competition, and this truism is borne out in cost statistics.
Between the years 1993-2009, inflation for law library serials --- which make up
approximately 70-80% of the average law library collection --- have averaged
annually 9.07%, a rate that outstrips the inflation rates in other disciplines and
the consumer price index for that same range of years.72
As vendors continue to transition from ownership to licensing content,
libraries face difficult issues including: substantial annual licensing fees, the risk
of losing future access to databases (including their retrospective content),
71
Brian Leiter’s Law School Rankings at http://www.leiterrankings.com/ (last visited January 20, 2011).
Historical data was analyzed from the Periodicals Price Survey (annual article in March 15 issue of LIBRARY
JOURNAL) from 2000 to 2009 to arrive at these figures. CPI information was obtained from the CPI calculator
at http://data.bls.gov/cgi-bin/cpicalc.pl and shows an average annual increase of 2.73% over the same time
period (last checked March 25, 2010). For those attempting reproduction of this figure, there may be some
deviation in the numbers, as the Library Journal updates its figures each year retrospectively, but in each
calculation, the CPI remained lower than the average obtained by any of the Library Journal numbers.
72
28
unpredictable cost increases,73 keeping primarily a print collection that might not
be used as often as an online equivalent might be,74 and finding greater
restrictions on use through license terms than would be permitted in copyright
or the use of print materials.75 When licensing practices initially gained
popularity, to address these issues, many libraries chose to obtain materials in
dual formats: physical for preservation and future users, and electronic for
current access. Increasingly, though, as library budgets are cut, choices are
being made and those choices are often for present use over future access;
licensing an aggregator database short term may be fiscally possible when
acquiring the same items is not.
The age in which we live is one that requires access to more data than a
scholar from the early 1900s needed, and no single library is able to collect
comprehensively in all of the areas desired by its researchers. As a collective,
though, we can share the burden of developing a library deep in resources
valuable but less frequently used (e.g., rabbinical jurisprudence) while
concentrating local purchases on those materials used regularly (e.g., Bluebook).
73For
a recent example, see Paying by the Pound for Journals, INSIDE HIGHER ED at
http://www.insidehighered.com/news/2010/12/02/acs (last visited January 20, 2011). For a more detailed
explanation on the costs of electronic-only documents, see Michelle M. Wu, “Why Print and Electronic
Resources Are Essential to the Academic Law Library”, 97 Law Lib. J. 233, 235-243 (2005)
74 Senior, infra note 89.
75 Alicia Brillion, Beyond Copyright? How License Agreements and Digital Rights Management Pose
Challenges to Fair Use and the Provision of Electronic or Media Services, 32 CRIVSHEET 3-4 (Nov. 2009).
29
Below please find the particulars of on one proposed configuration of a
collective.
Part IV: Collaborative Collection Building: Access and Permanence
Instead of the current practice of forming regional or bilateral
agreements for resource sharing, law libraries could form a national consortium
through which a centralized collection would be established. The consortium
would functionally serve as a jointly owned acquisitions department for member
libraries. Please note that the scope of this paper is limited to print acquisitions
and donations. Licensed databases are controlled by contract; media files often
face additional issues controlled by the Digital Millennium Copyright Act; and
born-digital materials on the free web already have an archiving model in the
Chesapeake Project;76 therefore, none of these topics will addressed in this
article despite their value in the overall goal of creating a digital library. Within
printed texts, though, there would be no further mandatory restriction, though
there certainly could be practical challenges (e.g., digitizing and updating a
looseleaf) reducing the number of titles converted.
The consortium would have independent staffing, dedicated solely to
maintaining the collection, digitizing it, and providing access to it. This approach
76
The Chesapeake Project: A Collaboration Success Story, Presentation by Katherine Baer at Best Practices
Exchange (September 30, 2010) http://www.bpexchange.org/2010/documents/BPE2010_Chesapeake.pdf.
Chesapeake Project home and more details at: http://cdm266901.cdmhost.com/ (last visited January 11,
2011).
30
would maximize purchasing power, reduce the duplication in expenditures
across libraries for common but rarely accessed sources (e.g., reporters), and
would address any number of existing issues with online resources including
authenticity, format choice, consistency in access, preservation, and continued
access.
There are three components to this proposal, each broken down in
greater detail in the following pages: shared collection development and storage,
dedicated staffing, and a digitization project leading to more efficient document
delivery.
A.
Dedicated staff
The most critical component in this proposal is a staff dedicated
to the effort. Some of the larger cooperative projects for print collections
have stalled or failed because of inactivity or slow activity, a predictable
outcome of asking existing libraries to take on additional duties.
Inevitably, a local need will arise that takes precedence over the
collective need.
Another benefit of centralizing efforts is the reduced likelihood of
duplication. Libraries working as independent actors might be unaware of
each others’ activities and choose to digitize the same work or collection.
With centralized management of titles to be digitized, such duplication
31
can largely be avoided. The central administration could provide online
access to all members of a list of collections which have been converted
and which are in the queue to be converted. Should member libraries
wish to provide independent resources to scan additional titles, they
could then coordinate with the central administration.
Establishing a dedicated staff will ensure that the project will
continue to advance even if the individual members of the cooperative
are otherwise occupied or if some members are no longer able to
participate. While the staff may gain vision, mission and direction from
the members, it would have a great deal of autonomy in operation,
ensuring consistent practices and policies regarding preservation,
acquisitions of multiple copies, digitization, format migration (when
necessary), and cost allocation. Since time and consistency are necessary
in these latter decisions, allowing the staff most intimately familiar with
the use of the materials to make these decisions is the most logical.
Staffing would exist for retrieval, digitization, cataloging/indexing, and
billing. Reference and data mining of the materials would continue to be
decentralized, housed at the individual member libraries.
The success of staff will depend on hiring experts in various fields.
Digitization and development/adoption of search engines should be
32
undertaken by technology experts and not necessarily librarians, while
the indexing and organization of materials would be the responsibility of
information specialists. This arrangement ensures that each staff
member would be responsible primarily for the tasks that are within their
areas of expertise. Indexing was developed to serve a purpose, and
scholars have already noted the impact of the loss of such features in full
text databases;77 librarians have indexing expertise and can apply it to
documents as they are added to a central database. If the consortium
can bring the best of technology and information management together
in a single resource, it should be able to outperform existing services in
accuracy and usability.
B. Storage and collection development
The consortium’s dedicated staff and member libraries would
develop the initial subject area collection development policy together,
with the goal of expanding coverage as far as practical. It should exclude
items commonly accessed by users (e.g., textbooks, indexes) and focus
on scholarly materials less frequently accessed (e.g., laws in the American
colonies, foreign law) but still useful for research.
77
Google Book Search Library Project documents, infra note 79.
33
Under the care of the staff, and where the staff would be
physically located, would be a storage facility for physical materials in the
interest of preservation and for historical purposes. Redundancy, while
preferred, is not necessary because of the third prong of the proposal –
digitization. The physical materials would be a dark archive, only accessed
once, for digitization purposes, and then retained in cold storage in case
the accuracy of the digital form is questioned.
All members would pay a base annual membership fee, one which
would give them co-ownership of materials purchased that year. If a
library misses a year’s payment, it would not own that year’s acquisitions
and would not have access to them. One might ask why a non-member
library could not still access the materials through interlibrary loan, and
while this would be possible, this proposal envisions restricting access to
member libraries; otherwise, libraries not in the cooperative will still gain
all its benefits, thereby discouraging member libraries from continued
support. Libraries skipping payment in a given year would be permitted
to pay back dues and gain co-ownership at a later date.
Statistics of use by member libraries would be retained, so as to
assess fairness of the membership fees. If appropriate, tiers could be
established, distinguishing the heavy users from the infrequent users.
34
As a side benefit, this central storage facility could address some
of the space issues libraries face. For libraries retaining print journals,
codes, and reporters purely as a safety net in case their electronic
subscriptions cease, this facility could provide them with that security
without local consumption of shelf space. The logistics of digitizing and
managing retrospective collections would be more complex than the
processing of new titles but would be possible within this model, if
desired.78
C. Digitization
Materials acquired would be digitized, and only one copy of each
digitized document would circulate at any given time (unless multiple
copies had been purchased, in which case, the number of copies that
could circulate at any given time would match the number of copies
purchased). The print copy would be stored for archival purposes only;
only the digital copy would “circulate.” This digital copy would be an
encrypted, protected document so that users could not print, save, or
78
There are several reasons why this could be more complicated than the handling of other materials. First,
the consortium, in theory, could want to circulate 150 copies of a given reporter volume at one time if 150
libraries had donated the same volume to the consortium. While permitted under this paper’s analysis,
neither the consortium or the libraries would want to bear the expense of transport or storage, so
arrangements would need to be made to document the donation and destruction of copies not used, so as
to remain faithful to the one-copy-in-use restriction this paper proposes. Second, with primary materials,
libraries would want redundancy in the print copies, so some coordination among member libraries might
be necessary to ensure that some print primary sources remain available in their digital form even if the
consortium’s central storage facility were to be destroyed or damaged.
35
copy the entire work. It would allow for limited copying, to enable
scholars to manage their citations easily. Documents withdrawn from
libraries and offered to the consortium would be subject to the same
rules.
The order of digitization would be determined by demand; as
soon as an item is requested, it would be digitized, therefore making
usefulness the determining factor in priority. The local staff could
determine priority of digitization in times when there are insufficient
active requests to employ the staff’s full capacity.
The digital collection would be subject to the same security,
redundancy and backup procedures that information technology
professionals routinely require for servers and materials stored on
servers.
Part V: Internal and External Objections, Outside of Copyright
Aside from objections from copyright owners, libraries may also have
concerns about such a proposal, concerns that range from cost to control to
usability.
Why recreate the wheel? Vendors (e.g., Thomson Reuters) and
commercial organizations (e.g., Google) have already created substantial digital
information stores. Where they are reasonably priced, might it make sense to
36
rely on these instead of creating a separate database, especially as they permit
for simultaneous use by multiple users? Indeed, information already available at
a reasonable cost from other sources should remain at the lowest priority for the
consortium to digitize. However, they should remain on the list, albeit at a low
rank because products by for-profit entities translate to unpredictable costs,
uncertain future access, and varying quality.
Annual license costs increase regularly, and budget cuts may force
cancelation of subscriptions. The number of objectors to the current Google
Settlement within libraries shows that there is significant concern with the idea
of relying on a for-profit source as a repository.79 Further, researchers using
Google Books have already mentioned the flaws in the resource including
unlinked volumes of the same title, weak quality control, and inaccurate data. 80
With most existing access to online materials being provided through
license only, those costs are likely to go up, especially if the resource is provided
by a company holding a monopoly. Having a non-commercial entity house
materials ensures future access to information, even in the event of a publisher
being acquired by another or going out of business.
79
Google Book Search Library Project documents, http://www.arl.org/pp/ppcopyright/google/index.shtml
(last visited March 25, 2010).
80 Jeffrey Nunberg , Google’s Book Search : A Disaster for Scholars, CHRON. HIGHER EDUC., August 31, 2009, at
http://chronicle.com/article/Googles-Book-Search-A/48245/ (last visited January 24, 2011).
37
Last, by building a digital collection, libraries can contribute to the
preservation of knowledge for all. Instead of digitizing materials as they lose
copyright protection, libraries could release already digitized materials
immediately upon the expiry of copyright terms. If each library group committed
to preserving a portion of the world’s existing, printed knowledge in cooperation
with one another, we could reduce duplication of effort and ensure an unbiased
preservation of materials.
Cost. Is this proposal one that is too ambitious for our means? The
information necessary for a thorough analysis is unknown, but a basic analysis
demonstrates that law schools certainly have the resources to fund the
immediate costs of such a project. Future costs, especially if electronic format
changes, are not as easily assessed. On current costs, if each school provided
$50,000 annually to the project, the operation would have a 10 million dollar
operating budget. For that investment, each library would gain access to many
times more titles than it could afford to purchase itself. While we can debate
the pricing structure and whether there should be a sliding scale or a flat fee,
ultimately, it would be difficult to deny availability of resources for such a
venture. Start up costs may require a greater contribution in the initial year than
in subsequent years.
38
Equipment, storage, and staffing costs will not be insubstantial, but it
should be noted that the equipment used in digitizing has become much more
affordable. For example, one Kirtas Technologies model costs $169,000 and can
scan up to 3,000 pages an hour.81 Staffing costs and storage costs are likely to
outweigh any pure digitization costs, but would still be within reach especially if
location is carefully selected for the facility. Further, it would be possible to
decrease costs significantly if the print copy of the item were to be discarded
upon digitization, though such a step is not recommended.82
Opportunities for cost savings also abound to offset the costs of this new
enterprise. Storage and delivery of print materials will never be a cost effective
way to share materials.83 Online delivery, has fewer costs. While there are
expenses associated with online databases (such as storage, security, accounting
systems), these typically will not exceed the costs associated with print resources
(e.g., space, lack of use, duplication across schools). Expanding existing joint or
collaborative efforts could also reduce costs. For example, libraries could try to
81
http://chronicle.com/blogPost/George-Washington-U/9036/. Projects like the New York Public Library’s
also shows that creative uses of digitized materials can help to fund future digitization.
http://www.nypl.org/press/press-release/2009/10/07/new-york-public-library-and-kirtas-technologiespartner-make-over-500
82 As libraries serve a preservation function, they have an obligation to retain at least one original copy of a
work.
83 One of the most ambitious collaborative collection development projects, the Farmington Plan, managed
to collect over 17,000 books in 1951, but related costs in shipping binding, etc cost over 8 million dollars
that same year. Edwin E. Williams, Three Cooperative Projects, 1 LIB. TRENDS 157 (1952). Also available at
http://www.ideals.illinois.edu/bitstream/handle/2142/5454/librarytrendsv1i1N_opt.pdf?sequence=1 (last
visited March 25, 2010).
39
negotiate with Google for ownership (or perpetual licenses) of their digital legal
images in exchange for adding our expertise to their existing database to make it
more useful, or we could decentralize storage in manner that utilizes space
available at member libraries with space to spare.
Reliability. Digital resources are inherently unreliable. They require
devices to read them, and any format that exists now may not exist 10 years
from now. While true, it is equally inescapable that most users prefer online
resources.84 Reliability is a legitimate concern that cannot be addressed in the
abstract, without knowing what future formats will be. However, the benefit of
having a single central source is that libraries will only have to convert a single
format over to future formats instead of migrating multiple formats each time a
technological advance is made.
Usability. Though e-reader popularity is increasing, the movement
towards online materials has been slow in the area of scholarly, e-book
monographs. These, and other resources, such as statutes, remain easier to use
in print than online. Further, digital resources, when heavily restricted in use,
lose some of their natural qualities and therefore become less useful.
This proposal does not anticipate law libraries ceasing local collection
purchases. Materials used on a regular basis would still be most useful if
84Senior,
infra note 89.
40
available locally. Libraries making such purchases would still have reason to
participate in the consortium, though, both to have access to the materials that
it does not purchase as well as to access a digital copy of a document that it may
already own.
On general usability, while e-book technology still has a distance to go, as
has already been shown, students already lean heavily towards online resources.
Accessibility for them remains the most important deciding facture, and it is
reasonable to posit that this collection would provide materials in a format most
likely to encourage student use. Faculty are more selective but where a
document is available in multiple formats, even they have developed a
preference for the online version over print.85 In short, even though this
consortium may not produce documents in their ideal format for use, they
would produce documents in a preferred format.
US News and World Report (and other statistical comparisons). Law
schools may be concerned about contributing to an effort that raises not only
their volume count but also the volume count of competitor schools.
Sidestepping the issue of validity of using these statistics in measuring the worth
of a library, if all schools participate, this becomes a non-issue. If only some
85
See Ithaka faculty studies at http://www.ithaka.org/ithaka-s-r/research/faculty-surveys-2000-2009 (last
visited January 11, 2011).
41
schools participate, then there is the possibility of the skewing of data, but since
current standards allow counting titles that are freely available on the web, this
project would not distort information in any way that is not already possible
under the existing guidelines.
Antitrust. Some concerns about antitrust have been raised, but the
configuration of this project is such that it should not run afoul of any antitrust
issues. The Sherman Act86 covers a variety of activities that constrain trade:
concerted action, coercion, and monopolization among others. Relevant key
points in TALLO that would counter any such charge include: membership is not
mandatory, local purchasing is not discouraged, other libraries may engage in
the same behavior without penalty, and vendors still have great room in which
to market and sell their products. In fact, it would encourage competition in that
vendors would be encouraged to produce both more inexpensive and innovative
projects to displace any of TALLO’s efforts. At its heart, TALLO is a combination
of existing efforts elsewhere: coordinated negotiation and contracting,87
digitization,88 and searching. All of these actions are tested and accepted
actions, despite the existence of multiple participants.
86
15 U.S.C. §1 et seq. (2006).
Ziegler, supra note 2.
88 Hathi Trust at http://www.hathitrust.org/ (last visited January 24, 2011).
87
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Delivery to users in foreign nations. Though beyond the scope of this
paper, use by individuals in foreign countries deserves a cautionary mention. As
faculty and students travel on study abroad, research, or instructional activities,
some may seek access to the consortium’s resources. As with the delivery of any
materials to users in another country, libraries need to develop policies
regarding such access. Even where an action is deemed legal by the United
States, another country may not be in agreement and reaching into that country
may trigger liability.
Part VI: Underlying technologies
A digital collection is only as good as its access points and user interface.
Below is a brief discussion of the systems needed, both internally and externally.
First, an integrated library system (ILS) or ILS-like utility would be
required, supporting accounting and billing functions. This utility would need to
communicate with or incorporate some relational databases to:

Determine ownership of materials;

Provide rights management features to
o track when materials can be made publicly available,
o record special permissions from authors where permission for
public access is granted before the copyright term expires,
o ensure that materials not publicly available are secure,
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o permit wider release of materials should copyright law be
amended to make such an action lawful.

Record and track digitization, editing, and use of any given document.
Second, a utility would need to be acquired to facilitate circulation to
users. It is unlikely that we would be able to devise or obtain a utility enabling
circulation systems of each member library to talk to the consortium system,
especially as the ILS system most academic law libraries use is a proprietary one.
Even if the consortium could negotiate with vendors to overcome the technical
difficulties of accessing proprietary systems, loan rules, days closed, and any
number of other local factors would make such an arrangement difficult if not
impossible.
Individual libraries would also need an interface containing order
information, both to facilitate submitting acquisition requests to the consortium
as well as evaluating their own collection purchases.
Last, and most important, is a search feature. Digital resources need to
be easily found to be used. Any value of a resource lies primarily in its value to
the end user. Studies have been done with students in various stages of their
education: K-12, undergraduate, and graduate levels, and all come to the same
conclusion: user searching has undeniably changed. A recent study in 2009
found that 73% of business/marketing students started their research with
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Google.89 57% preferred free online sites to subscription databases or print
materials.90 No collection, however strong or complete it may be, will be
sufficient without a more user friendly interface. Any engine devised must have
the ability to interface with multiple databases, including the consortium’s
holdings, individual library catalogs, and/or discovery platforms so that a user
need only search once to see the materials available to him. This may require
deviation from traditional integrated library system vendors and partnerships
with entities or individuals who have the greatest expertise in searching.
While these seem like complex technologies, many of them have already
been tested by other collaborative projects like the HathiTrust or commercial
entities. If such organizations are open to partnering, such a relationship might
reduce costs to law libraries as well as contribute information (e.g., bibliographic
records) to their partners.
In terms of future technologies, there are additional enhancements that
libraries could provide as the project moves forward. We could create
applications that allow users to copy limited text, and when pasting, the user
gets not only the text but also the citation information. We could link materials
89
Heidi Senior, et al, Three Times a Study: Business Students and the Library, 14 J. BUS. & FIN. LIBRARIANSHIP
202-229 (2009).
90 Id.
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together in virtual subcollections with research guides or publicly available
collections of related materials.
Conclusion
The benefits of a central digital library are great: expanded access to
information, ensured preservation, and control over form. Its creation hopefully
would also allow libraries to prevent a great harm: the potential distortion of
information. If users gravitate to online sources and only recent legal
information is available online, then society’s perception of reality shifts to
reflect only the information easily available.91 Part of our mission, therefore,
should be to ensure that use of information is not determined solely by format,
and the most effective way to achieve that goal is to place documents on equal
ground.
This article is not intended to represent a single direction for libraries, as
there may be other, more carefully formulated ones. It is, however, intended to
be a call for collective action, to stop discussing the library of the future and to
start building it.
91
An example of where this has already occurred is in education rankings, like the ones provided by US
News and World Report. There is agreement among schools that US News and World Report rankings
cannot accurately or completely represent any institution it evaluates, and yet users have found it
accessible, easy to use, and a wonderful proxy for complete information. Whether it is reliable, accurate, or
complete is irrelevant: users prefer accessibility over accuracy. There is a danger that the same distortion
happens to legal information.
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