October 21, 2014

Library Associations Brace for First Sale Fight with Owners’ Rights Lobby Effort

The American Library Association (ALA) and the Association of Research Libraries (ARL) today teamed up with 17 other associations, retailers, and charities to launch a new coalition called the Owners’ Rights Initiative (ORI). ORI is an “informal alliance of stakeholders” that will defend the first sale doctrine, which allows libraries to lend books and other materials, as well as individual owners to resell them. The doctrine is under attack in the case of Kirtsaeng vs. Wiley, for which the Supreme Court will hear oral arguments on October 29.

Among ORI’s other members are eBay, Overstock, Powell’s Books, textbook buyer and seller Chegg, movie rental company Redbox, Goodwill, and Quality King Distributors, which is notable as the prevailing party in Quality King Distributors v. L’anza Research International, in which the Supreme Court in 1998 held that the first sale doctrine prevents copyright owners from controlling the importation of copyrighted goods sold outside the United States. (Notable for its absence is Costco, which was a party to the split decision Costco v. Omega case that raised similar issues.)

Andrew Shore will serve as Executive Director of ORI, which is funded by direct financial and in-kind support from its members. (ALA’s contribution is primarily in-kind, according to Corey Williams, associate director of the ALA Office of Government Relations, plus “a nominal direct contribution.”) Shore is a founding partner in law firm Jochum Shore & Trossevin PC, which specializes in international trade law and lobbying. Though ORI lists amicus briefs filed by its members (and others) in the Kirtsaeng case on its website, its main focus is legislative, not judicial.

“ORI is planning to spend an extensive amount of time educating Congress,” Shore told LJ on a media conference call. “The likelihood is that it will end up in Congress’ lap. Rather than waiting for the Supreme Court decision and then spending months and months trying to develop a legislative strategy, we are doing that now.” According to Shore, ORI is planning to meet with both legislators and members of the administration in the near future.

Alfred R. Paliani, general counsel for Quality King and president of the American Free Trade Association, seemed to feel that even if the Court ruled in Kirtsaeng’s favor it wouldn’t obviate the need for a such legislative strategy, because “inevitably the losing side will seek” redress through Congress, he said on the call.

Betsy Wilson, Dean of Libraries at the University of Washington, represented ARL’s interests on the call, saying, among other things, that more than half of the university’s seven million volume collection was published abroad, and thus threatened by an adverse ruling, while Vailey Oehlke, director of libraries for Multnomah County, Oregon, spoke for ALA and the plight of public libraries in particular, who don’t have staff to identify what books were printed abroad and increasingly need to collect books published in languages other than English to meet the needs of their diverse populations.

In addition to heavily emphasizing the familiar arguments in favor of the first sale doctrine—its long history of precedent, its status as the foundation of library lending, in-kind charitable giving, the burgeoning online marketplace, and more—the call also broke new ground in adding environmental concerns. “If a user can’t resell [items they’re done with], they’ll end up in the landfill,” said Joseph Marion, president of the Association of Service and Computer Dealers International (ASCDI), and Shore added that ORI plans to explore the often-overlooked environmental aspect further in the coming months.

Williams told LJ that as a founding member of the ORI, ALA is “actively engaged in all of the ORI activities, ranging from strategizing, to reaching out to Congress, to coordinating advocacy initiatives.” Once the Court reaches a decision, Williams said, “we will construct a grassroots advocacy effort in response…Our members care deeply about first sale since it allows libraries to do what libraries do…they are watching the case closely, and at the point at which grassroots advocacy is valuable, will be ready to engage.”

Meredith Schwartz About Meredith Schwartz

Meredith Schwartz (mschwartz@mediasourceinc.com) is Senior Editor, News and Features of Library Journal.

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Comments

  1. Slight word failure in first paragraph?
    Or are they going to be lending the individual owners for resale, too?