Preservation-the Time is Right, Still

Margaret Maes, a recipient of the Marian Gould Gallagher Award in 2018, served as the Legal Information Preservation Alliance’s Executive Director beginning in May 2008 until her retirement. This past November Margaret Maes passed away. How to best honor Margaret’s active and influential professional career was a discussion point at LIPA’s December board meeting.

Still fairly new to the world of the law library profession, equally small and large at the same time, I did not know Margaret. The paragraph above should suggest as much. Reading a heartfelt remembrance written by a close friend which was shared with the LIPA board, viewing some of her accolades and a list of scholarship, I am confident in saying her passing is a loss to us all.

In discussing how to best honor Margaret, known by many as Margie, I volunteered to read something she had written and share a thought or two. That brings me to a 2003 Spectrum article in which Margaret details the “Preserving Legal Information for the 21st Century” conference. There participants created a draft plan that ultimately led to the creation of LIPA. Margaret wrote of her belief in the law librarian profession and a need for collaboration to “ensure that legal materials will be available to future generations” (Spectrum 2003). Nearly twenty years later LIPA is going strong and that is in large part thanks to Margaret’s efforts as its executive director.

Margaret’s article, Preservation - the Time is Right, has a message that is true today and one that will be true in the future. The time to preserve is now and to collaborate as suggested by Margaret, I share here the need to carry out good practice. While we as a profession spend time trying to discover best practices for preservation, at a minimum we need to carry out good practice. Good practice is one of five objectives found in the Digital Preservation Coalition (DPC) Strategic Plan for 2022-2027. To learn more about good practice, I encourage you to view the freely available DPC Digital Preservation Handbook.

If you are interested in further collaboration and learning what LIPA is up to, you are invited to the upcoming Winter Membership Meeting. A date and time will be announced soon.

“It’s up to the rest of us to carry out the preservation vision with the Legal Information Preservation Alliance. The time is right.” - Margaret Maes, Spectrum 2003.

IALL 2022 Recap – Focusing on Open Access and Preservation Programming

By: Molly Brownfield

I had the pleasure of attending the 40th Annual Course of the International Association of Law Libraries at Stanford Law School October 9-12, 2022. The theme was U.S. and International Approaches to Law, Justice and Technology: Learning from the Past and Strategies for the Future. The outstanding program featured several presentations that touched on a variety of issues involving open access and preservation, four of which are briefly summarized below.

In the Opening Ceremony on Sunday, October 9th, Keynote Speaker Corynne McSherry, Legal Director of the Electronic Frontier Foundation, summarized the recent summary judgment arguments in the lawsuit between four publishers and the Internet Archive over the latter’s controlled digital lending program. The next stage in the case will be a hearing before presiding Judge Koeltl. The outcome of this case could have far-reaching implications for controlled digital lending in all libraries. For more information about the case, including links to the summary judgment briefs, see https://www.publishersweekly.com/pw/by-topic/industry-news/libraries/article/90566-publishers-internet-archive-ready-for-summary-judgment-hearing-in-book-scanning-case.html.

On October 10th, Professor Mark A. Lemley, Stanford Law School William H. Neukom Professor of Law and Director, Program in Law, Science & Technology; Senior Fellow, Stanford Institute for Economic Policy Research; Affiliated Faculty, Stanford Symbolic Systems Program, gave a presentation titled “Disappearing Content.” As one example of disappearing content, Professor Lemley noted that Netflix once had 100,000 movies available on DVDs. Now there are just 4,000 available with their streaming model. He pointed out that there is no second-hand market for streaming content, so when it’s gone, it’s really gone. Professor Lemley talked about how the function of libraries as repositories comes to a head in a climate where copyright owners can’t or won’t continue to provide a published work. For more information, see Professor Lemley’s paper at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3715133.

Professor Elizabeth Hidalgo Reese, Stanford Law School Assistant Professor of Law, gave a presentation on October 11th titled “The Challenge of Building a Sustainable Tribal Law Infrastructure That Respects Tribal Sovereignty.” Professor Reese talked about the challenges of making tribal law (the law that tribes make internally to govern themselves) resources available, including funding, staffing, and understandable skepticism from the tribes themselves about sharing these materials. While there are projects at various institutions to collect and make select tribal law materials accessible, the future of these projects is dependent on continued time, money, and interest. Professor Reese noted that part of the solution is to create demand. We need to teach about, talk about, and write about tribal law in order to normalize demand for it such that commercial legal database providers will expand their tribal law collections and offer them at an accessible price point. For more information see Professor Reese’s article at https://review.law.stanford.edu/wp-content/uploads/sites/3/2021/03/Reese-73-Stan.-L.-Rev.-555.pdf.

Carl Malamud, President of Public.Resource.Org, gave a presentation titled “Edits of the Government in the United States” on October 11th. He discussed the U.S. Supreme Court case of Georgia v. Public.Resource.Org, Inc. (finding that Georgia state laws and their official annotations, like all other works authored by judges or legislators, are not protected by copyright) and the issues that remain in the aftermath of the decision, including accessibility and format of state government-issued works. He also talked about a case he is currently working on involving access to building & safety and other codes and summarized recent developments in several states, including the Wisconsin Jury Instructions being made freely available online through the Wisconsin State Law Library, and the recent decision in Tennessee in which Davidson County Chancellor Lyle ruled that the Tennessee Code Annotated is exempt from Tennessee public records law, but also wrote that the TCA cannot be copyrighted – citing the Georgia case.

To Exhibit or Not Exhibit?

Earlier this month I installed the latest Cracchiolo Law Library exhibit, “1864.” This exhibit was co-curated with my colleague, Kristen Keck, in response to the recent United States Supreme Court Decision to overturn Roe v. Wade. In addition to highlighting the topic of abortion in Arizona and at Arizona Law, we also highlight the 1864 Howell Code.

On display in the law library’s reading room is a print copy of the Howell Code. Produced over 150 years ago in 1865, there are only 14 other known holding records according to Worldcat. Fourteen!

The Howell Code has been a topic of previous library exhibits including a 2019 exhibit titled, “Territorial Arizona and the Impact of Spanish Law on the Howell Code” on which I served as co-curator in collaboration with Michael Brescia, Curator of Ethnohistory at the Arizona State Museum. At that time, I made a decision to not put my law library’s copy of the Howell Code on exhibit for preservation purposes. Below is an image of the 2019 physical exhibit that includes text panels and colored images of our digitized Howell Code. You can access a digital copy of the Howell Code by visiting our digital collections website.

The law library’s copy of the Howell Code is a gift of E.E. Ellinwood, a “noted Arizona jurist.” Unfortunately, there is no associated documentation for the gift. The copy contains black and white reproductions of preliminary leaves or prelims, the pages that precede the actual text of a book. It is unknown if the original prelims were bound with the text block when they were gifted to the law library.

Our copy is fully leather-bound in a “smooth calf of rather disagreeable yellowish fawn color” known as law calf. It is also likely case bound, meaning that adhesive was used to bind the outer leather covers with the text block (the inner pages or individual leaves that have been sewn together). Definitions are pulled from the ABC for Book Collectors.

As you can see from the image above, the book is not in great shape. I would choose to describe our copy of the Howell Code as defective or gone in that the outer leather cover is no longer attached at the spine (the back or backstrap).

So why exhibit it now? As an archivist and the librarian responsible for my law library's special collections, it is my responsibility to treat and view the book as a physical object, an artifact. Choosing to exhibit this object now will not serve to preserve it for the future, and I do not doubt that this object is beyond repair. The text block is still in tact, and the original front and back boards are still in good shape even if they are no longer attached to the text block. It is possible that the book could be rebound. So why risk further damage?

My opinion: Sometimes an artifact and the content held within, like Title X, Sec. 45, are worth showcasing as defective or deteriorating. Sometimes, there needs to be an understanding that some objects, and more importantly, some of their content, may not be worth preserving.

This post was written by Jaime Valenzuela, Archivist and Scholarly Communications Lead at the Daniel F. Cracchiolo Law Library. He is a LIPA Member-at-Large.