Centralized Collections, Decentralized Services



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.

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

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, 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 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 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 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 HathiTrust[11], the Open Content Alliance[12], or Emory[13], 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 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 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 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 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 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 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

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.

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.

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.

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) 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 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 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 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]

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.

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.

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 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 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 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 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 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 technology[66] and the development of less costly printing practices. To illustrate, in 1860, there were only 48 print periodicals nationwide[67], 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.

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), 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). 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 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 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 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.

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.

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 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 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.

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.

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 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 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 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 Act[86] 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.

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,

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 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 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.

-----------------------

[1]See 2009 ABA takeoffs.

[2] 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).

[4]Authors Guild v. Google, 05 Civ. 8136 (2011 SDNY) at

[5]

[6] Authors Guild, supra note 4, at 4.

[7]Google Books Amended Settlement Agreement can be found at (last visited 03/30/11)

[8] Id.

[9]Authors Guild, supra note 4, at 26-7.

[10] Id. at 30-35, 40-45.

[11] (last visited 3/31/11)

[12] (last visited 3/31/11)

[13]

[14] HathiTrust’s policy on copyright can be found at (last visited 03/30/11).

[15] (last visited 3/31/11)

[16]Marci 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.

[18] Id. at §1:9.

[19] Id.

[20] 1 Documentary History of the Constitution of the United States 130-31 (1894).

[21] 3 Documentary History of the Constitution of the United States 576-78 (1894).

[22] 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),

[25] Sony, supra note 24 at 431.

[26] 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.

[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.

[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.”

[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).

[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.”

[33]While 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 ) 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)

[35] New York Times v. Tasini, 533 U.S. 483 at 504 (2001).

[36] 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).

[40] Tasini, supra note 35.

[41] 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 (last visited January 20, 2011).

[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.

[47] UMG Recordings, Inc. v. , 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).

[48]Todd 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).

[49]Julie Bosman, Publisher Limits Shelf Life for Library E-Books, NY Times at (last visited 3/29/11)

[50]  Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908).

[51] For a history of the RIAA lawsuits against individual music swappers, see David W. Opderbeck, Peer-to-Peer 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).

[52]Edward Lee, Technological Fair Use, 83 S. Cal. L. Rev. 797 at 799 (2010).

[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.

[58] Jonson, supra note 55, at 273-4.

[59] Ahlers, supra note 53, at 11.

[60] Id. at 20-21.

[61] Surrency, supra note 56, at 156.

[62] 17 U.S.C. §101 et seq. (2006).

[63] ABA Standards for Approval of Law Schools 606 and Interpretation 601-1 (2009).

[64] 17 U.S.C. §108(g)(2) (2006).

[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: (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), .

[67] Surrency, supra note 56, at 190.

[68] From Washington and Lee’s Submission and Ranking page at (last visited March 25, 2010).

[69] Bowker’s Industry Statistics at (last visited March 25, 2010).

[70] Jonson, supra note 55, at 275.

[71] Brian Leiter’s Law School Rankings at (last visited January 20, 2011).

[72] 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 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.

[73]For a recent example, see Paying by the Pound for Journals, Inside Higher Ed at (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).

[76] The Chesapeake Project: A Collaboration Success Story, Presentation by Katherine Baer at Best Practices Exchange (September 30, 2010) . Chesapeake Project home and more details at: (last visited January 11, 2011).

[77] Google Book Search Library Project documents, infra note 79.

[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.

[79] Google Book Search Library Project documents, (last visited March 25, 2010).

[80] Jeffrey Nunberg , Google’s Book Search : A Disaster for Scholars, Chron. Higher Educ., August 31, 2009, at (last visited January 24, 2011).

[81] . Projects like the New York Public Library’s also shows that creative uses of digitized materials can help to fund future digitization.

[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 (last visited March 25, 2010).

[84]Senior, infra note 89.

[85] See Ithaka faculty studies at (last visited January 11, 2011).

[86] 15 U.S.C. §1 et seq. (2006).

[87] Ziegler, supra note 2.

[88] Hathi Trust at (last visited January 24, 2011).

[89] Heidi Senior, et al, Three Times a Study: Business Students and the Library, 14 J. Bus. & Fin. Librarianship 202-229 (2009).

[90] Id.

[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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