March 16, 2018

That Would Be a No | Peer to Peer Review

Last week I mentioned the pleasures of getting involved in faculty development activities at the start of the academic year. This year, as workshop week winds down, I was struck by how many questions came up that have to do with copyright-and how often I was cast in the role of Queen of Negativity, with my scripted lines mainly beginning with the word “No.”

This is unfair. Librarians hate saying no. We’ve been trained to think that’s not an acceptable option. There must be a way to get to an answer that satisfies the patron! Yet in the past two days I often had to say to faculty things like “well, what you are proposing would actually be illegal” or “we can’t do that because of copyright restrictions” or “no, unfortunately, you cannot count on your assigned books all being available in audio format for those students whose learning styles favor audio comprehension.” (This one was especially awkward given a visiting workshop leader had just told an English faculty member cheerfully that absolutely every book was now available in audio format. Every single one! My head started hitting my desk involuntarily. So rude.)

There is also the inevitable request when introducing new faculty to the library and how to put things on reserve. “Do you have a list that explains exactly what falls under fair use?” We could have a checklist, as many libraries do (often as part of a settlement with publishers; sometimes an exhibit in a lawsuit if it’s too generous) but even if we devised some sort of list, it still wouldn’t answer many of their questions. Publishers, of course would prefer that we go with the safe option of paying permissions for everything with a blanket license-so convenient (except when it’s not). And of course there is that Georgia State decision we’re all awaiting, which could be a major game-changer. So we do our best to explain the process of weighing the four factors and remind them that much of life is ambiguous and we’re happy to consult on a case-by-case basis. Though the answer they hear, of course, is “no.”

Do you want the bad news, or the worse news?
At least I have spared innocent faculty, so fresh and eager to start the new year right, any hint of the Second Circuit opinion that just inserted a stick of dynamite in the concept of First Sale and blew it up. I would prefer not to be seen as a crazed conspiracy theorist, and this is one of those situations that has implications so insanely far-reaching that it seems utterly preposterous. I mean, this is nuts, so it won’t happen, right? Right?

Let’s hope not. The case in question is John Wiley & Sons, Inc. v. Supap Kirtsaeng and it concerned a textbook publisher who wanted to prevent an entrepreneur from selling cheaper textbooks manufactured for overseas markets to college students in the US. (There are several other cases like this pending.) Textbook publishers sell their goods at much higher prices in the US than abroad, sometimes because the overseas editions are printed on cheaper paper or have fewer embellishments, but mostly because they can. In prohibiting this individual’s importation and resale of books manufactured for a foreign market, the justices carelessly swept up in their decision every book manufactured outside the United States. The first sale doctrine does not apply to them. Oops.

I earlier did my Chicken Little imitation over the Costco v. Omega decision, but this ruling makes things significantly worse. As Jonathan Band explains more clearly than I can, the court took a look at how the Ninth Circuit had put some limits around their ruling, basically saying “if the copyright holder is okay with resale of things manufactured abroad . . . never mind.” The Second Circuit just nuked that exception. Techdirt points out what this means for individuals and Kevin Smith in his logical way spells out what it means for libraries and for students, who could soon be in a world where they cannot legally obtain a used textbook. If this interpretation stands, publishers would have every incentive to manufacture their books abroad in order to instantly put an end to the vexing secondhand market.

A new wing for the orphanage
For libraries, though, the possibility that we may be unable to loan books manufactured abroad (or for which we cannot determine manufacturing history) without risking enormous fines just opened a vast new wing of the fabled book orphanage. We thought it was frustrating that we can’t do anything with books whose copyright status is uncertain or whose owners can’t be found. But at least we could loan those books. We could now be in a situation in which a huge percentage of our collections will have to be virtually chained to the shelves. And, as is pointed out in comment at ACRLog, where Maura Smales has covered the issue, almost all children’s books are manufactured overseas. Pat that bunny, and you could be in a world of trouble.

The courts could clarify this. Or Congress could sort it out, which will happen during the same session in which pigs will suddenly require FAA oversight.

But I’m not going to say anything about this looming disaster to our faculty. The beginning of a new school year is not the time to predict impending doom. I’ll fend off my apocalyptic dread by looking for more opportunities to say yes. Yes, I’d love to meet with your class. Yes, let’s get together and look over that assignment. Sure, your students can make appointments with me. Of course you can bring your class back to our lab as often as you like. What dates do you have in mind?

Yes just sounds so much better than no.

Barbara Fister About Barbara Fister

Barbara Fister is a librarian at Gustavus Adolphus College, St. Peter, MN, a contributor to ACRLog, and an author of crime fiction. Her latest mystery, Through the Cracks (see review), was published in 2010 by Minotaur Books.
Photo by Debora Miller