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.