Does ALA counsel Jonathan Band really have libraries best interests at heart.  Or is he more interested in helping Silicon Valley in its war on the individual rights of authors. 

If you haven’t heard the “used” digital file platform ReDigi case is back.   The case rests on the question of whether consumers have the right to sell a digital copy of a file, as long as they delete the old one.    ReDigi supporters argue that it’s no different from selling a used paperback book or CD.  And in the  tl/dr world of digital punditry that probably sounds pretty compelling.  Just add the American Library Association support to your argument and you’ve got a rancid pseudo-intellectual veneer of legitimacy.  Enough so that say that  law professors at insular institutions like Harvard or Stanford can claim there is some legitimate question of the law here.

There isn’t.

Read David Newhoff’s excellent analysis of the case here and here.

ReDigi’s arguments were soundly rejected by Judge Sullivan:

At base, ReDigi seeks judicial amendment of the Copyright Act to reach its desired policy outcome. However, “[s]ound policy, as well as history, supports [the Court’s] consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.” Sony, 464 U.S. at 431, 104 S.Ct. 774. Such defence often counsels for a limited interpretation of copyright protection. However, here, the Court cannot of its own accord condone the wholesale application of the first sale defense to the digital sphere, particularly when Congress itself has declined to take that step. Accordingly, and for the reasons stated above, the Court GRANTS Capitol’s motion for summary judgment on its claims for ReDigi’s direct, 661*661contributory, and vicarious infringement of its distribution and reproduction rights. The Court also DENIES ReDigi’s motion in its entirety.

So why is this case proceeding? I mean digital downloads are dying and being rapidly replaced with music streaming.  This firm does not have a viable business model going forward.  And surely the backers of this company know it.  What is the point of appealing?

I believe there is only one reason this case is being reasserted:   This is simply more lawfare by Silicon Valley aligned groups against the individual rights of creators*.   It only makes sense as a strategic move to weaken creators rights organizations and associated trade groups by forcing us to deploy our limited resources fighting this absurd case.

The ALA has no compelling interest in this case despite what the ALA’s  DC gollums may argue. In fact it is a strategic mistake.

First, purely on a PR level it undermines libraries broad support by authors.  I don’t understand why in this age of shrinking budgets and growing irrelevance of libraries that the ALA continues to wage war on authors and other creators? (I count more than a dozen amicus briefs in which ALA or the related LCA  has sided with Silicon Valley interests against creators). I can’t imagine libraries have many allies anymore.

Second, it casts libraries’ lot in with the shyster capitalists of Silicon Valley.  By tying the exemptions granted for libraries under the copyright act (happily granted by authors I might add),  to imagined loopholes viscously  exploited by tech firms,  it begs the question:  Why should libraries be treated any differently than say Google?

Librarians should remember this.  Unlike the rest of the industrialized world, US libraries do not pay a public “lending royalty” to authors.  This is a profound “give” to public and academic libraries by authors.  IMHO if libraries continue to play “hardball” and  support the rapacious behavior of tech firms and VCs,  we should do the same and withdraw our support for the exemptions that libraries take advantage of and demand they pay lending royalties to authors.

So rank and file librarians should ask their public policy apparatchiks “what is the game plan is here?”

When NPR cast their lot with corporate giants like Google and ClearChannel and joined the Mic-Coaliton.org in an effort to reduce royalties to performers and songwriters the backlash was huge.    We crushed them (with tactics like this) and they had to eventually withdraw from the alliance.     It’s a little weird that say UVA pays it top librarian $325,000 a year, but UVA public policy  seems happy to see authors and songwriters stiffed.   Just saying…

*We would like to point out for the 157th time, that groups do not have rights.  Under our constitution rights are vested in the individual.  The ALA and it’s allies is arguing that “consumers” a group have rights, that can violate the constitutional rights of individuals.